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HomeMy WebLinkAboutTow Operator Agmts exp Dec 2017CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 20i4 setforth below, at Fresno, California, between the City of Fresno, a municipal corporation (City¡ anO 76 Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPb). participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services unðer this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venuefor purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respeót to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding oñ City unless authorized by City in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties; no oral understanding or agreement not incorporated herein shall be binding on either of tne p"rtius; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither theperformance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract theperformance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless othenvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials in the performance of thisAgreement. Tow Operator warrants that any Software as modified through services provided hereunder will notinfringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defénd anO nótO City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs,damages, penalties and expenses related to or arising from such claim(s), including, -but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancéstry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator ãcknowledges that aviolation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by anyparty to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expression of certain remedies in this Agreement dóes notpreclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees noranyone working under Tow Operator shall be considered an agent or an employee of City. Ñeit-her Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' óompensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to performthe work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnis-hed by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a gooã and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies riecessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, ifpermitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited top any time and property damage) incurred by City, Tow Operator, or anyo any and all claims, demands and actions in law or equity (includinga on expenses), arising or alleged to have arisen directly or indirectly out ofp ement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties,-forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by Clty's Risk Manager. The following policies of insurance are required. 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury " "property damage" and "personaiand advertising injury"with coverage for premises and operations, products and completed operatioñs, 'anC contractual liability (including, without limit¿tion, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury anð property damage, $1,000,000 per occurrence for personal and advertising injury-anO SZ,OOO,OOó aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of noiless than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles ór other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury andproperty damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck.. ..... ..$i20,000b) Class C tow truck... ...$200,000c) Class D tow truck... ... .. .. $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code andEMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurancepolicies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declareà tó on the Certificateof lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: f ) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, orhis/her designee, guaranteeing payment of losses and related investigations, - claim administration and defense expenses. At no time shall City be responsible for Ine payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notic of policy cancellation, change or reduction of covérâge, except for the Workers'C icy which shall provide ten (10) calendar days writiên notice of such cancellation ction of coverage. ln the event any policies are due toexpire during the term of Tow Operator shall provide a new certificate and allapplicable endorsements evidencing renewal of such policy prior to the expiration date of theexpiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risf Division. Uponissuance by the insurer, broker, or agent of a notice of cancellation, ðhange or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, ánd the City's RiskDivision, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officeis, officials, agents, employeesand volunteers as an additional insured. Such policy(ies) of insurance shall be éndorsed so TowOperator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its bfficers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed direcfly or indirecfly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy-certifieð by the unden¡vriter to be a true and correct copy of the original policy. This requirement sháll survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City.Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operatorshall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms o-f each of thepreceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleés andbe responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. '|-5. Ghanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined inFresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of pôl¡ce, or his/herdesignee, this Agreement. This includes but is not limited to changes in:Corporate Treasurer, Trustees, or ownership interests. All chanles ortransfers t d by the Chief of Police, or his/her designee, prior tı such change or to remain on the tow services list. Final written approval ordisapproval for the change or transfer in ownership or control will be given by the Chief of police or his/herdesignee All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening The "immediate family" members involved in the change or transfer of ownership or control must also possesð and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who willoperate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is stricfly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension ortermination, shall not be eligible for a rotation listing for the duration of the susþension ortermination. This section applies to the Tow Operator working in any capacity withìn any tow 4 business or operating any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the termof this Agreement. All such records and information shall be considered confidential anà kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectiveiy Laws). Tow Oþerator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unlessothenvise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with parag raph 25 of Attachment ,,A" 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to beinvalid void or unenforceable, the remainder of the provisions hereof shall remain in full forcé and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienled and knowledgeable independent legalcounsel of their own choosing or has knowingfy declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section tO5+) or legal decision that would require interpretation of any ar biguities in this Agreement against the party that ñas 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Rèform and ControlAct of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. AdditionalTerms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othen¡,¡ise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding andlor appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination. Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actual delivery if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee Disputes-Aqreement A) The Parties shalldeal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's wrítten demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - : : ffi :i JHll i : ii ff : ffi å l''ñi : :,'i' ff : Lîï J", I;i,""ffi"i:' i"i Ë;:T:å? . f,, [: Jåxactíon in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the T h any of the provisions, covenants or conditions of this Agreementshall be a material ln such event the City may, and in addition to any other remediesavailable at law, in ified in this Agreement, undertake any of the individual actions orany combination of 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend andior remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty The Parties hereto have executed this Agreement. TOW OPERATOR: TOW OPERATOR*: Bv: Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. In the álternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of i-hesignature to bind the company. APPROVED AS TO FORM DOUGLAS T. SLOAN City By Y Brtrlo^ U' Date: ATTEST: WONNE SPENCE, CMC City Clerk /77¿:a--- Print Name: l(t ¿ l, 0.4 f a ec re c(c* CITY OF FRESNO. B ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property Vehicles impounded for evidence, impeding tñe flowof traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by ìaw, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the regístered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well aé the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence lf it is determined that the vehicle is to be held for evidence,the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing wíth FPD may be invited to participate in these operations, provided they are willing to remain w¡tñ the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All speciat operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a o special operation with a flatbed tow truck with the capability of towing (2) vehicles No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnage and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dãys per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to g:00 a m and 4:00 p.m. to 6:00 p m., (Monday through Friday), when the required response time will be extended to fortyfive (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility 8. Size and Location of Storaoe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area " Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation oi tne entire yard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcfly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Opeiator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields beíng entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate terminatton by City Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of tne OIS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651 07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venturg which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing seruices under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section'1808 1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financiaf interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property o Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Act¡vely on parole or on any form of probation . Crime of moralturpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G ) ldentification Badges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charges and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 2265107 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651Í and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851 12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851.1',22851.2',22851.3', 22851 .4: 22851 .6', 22851 .8: 22851.10, 22851 .12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. ïhe Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below. New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed durlng the preceding month and will pay the City no later than 12:00 p.m. on the 1Stn of the following month, regardless of the disposition of the vehicle. ln the event that the 1Sth of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenrvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement . Verbal abuse against public and/or law enforcement . Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arresto Refusalto take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ '184 00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storage Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between B:00 a m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. - 19 - CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and A&R Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless othenruise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 oÍ the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless othenvise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. L Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, offìcials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... $120,000b) Class C tow truck... ... . ... ... $200,000c) Class D tow truck... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $'1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenryriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in. Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any avallable remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless othenivise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otheruvise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otheruvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty. Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othen¡vise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Date: /2 -Q'âA/ ?- TOW OPERATOR*: Bv:Title: TOW OPERAT Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. CITY OF FRESNO. A municipal DOUGLAS T. SLOAN City By By ATTEST: WONNE SPENCE, CMC City Clerk Date: By:: Date: 8 t zlzz/t y ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shallbe in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 228503 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m to 6.00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Resoonse The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as drrected by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area " Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othen¡vise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenruise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto. profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC sectionlS0S 1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprintingo Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moral turpitude . Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507 5, 34600 et seq, 34620, and 12111, and sections 7231 el seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least '14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othenruise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year 16. Vehicleldentification Tow vehicles shall display identiflcation signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges Storage fees will be calculated on the calendar day except the fÌrst 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670; 22851, 22851.1', 22851.2', 228513', 2285 1 .4; 2285 1 .6; 22851 .8', 2285 1 . 1 0, 2285 1 . 1 2 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service CallRotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response 22. Gate Fees No gate fees may be charged between B:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every^City vehicle that was towed during the preceding month and will pay the City no later than 12...00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15" of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12.00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othen¡vise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otheruvise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charg¡ng rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard . Theft. Mishandling of vehicles stored as evidence¡ Unauthorized driver responding to call o Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints . Any Felony/Misdemeanor arresto Refusalto take a rotational tow. Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees o Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee ¡ Unauthorizedride-a-long. Failure to respond to customers' needs ¡ Failure to maintain proper equipment . Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Apoeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office The written appeal shall be in compliance with FMCsectionsl-407 and 9-1712. Notwithstanding any provision within Chapter '1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ '184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON.EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Ace Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parlies; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless othenvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LlABlLlry insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck.. .. ...$120,000 b) Class C tow truck... ...$200,000 c) Class D tow truck... ...$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-¡nsured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underuvriter to be a true and correct copy of the original policy This requirement shall survive expiration or termination of this Agreement G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-10f (e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under thts Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless othenruise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section '1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of '1986, I U.S.C 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othen¡vise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othen¡vise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. b 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be fon¡varded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a fìnal decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR*: Bv.Title: Print Name:Date' *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. APPROVED AS TO FORM DOUGLAS T. SLOAN City A Date: ATTEST. I tz/zz/ t'/ $.'Jå3äË"ilJ#. 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towing Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 228503 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m , (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a matenal breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -'10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally tn charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facrlities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Offìcial notification by City regarding tow services is considered any form of written, email, verbal instructions or notifìcations received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenruise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting tn a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limited to: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a colliston to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record whrch would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not prevrously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290 . DUI-Within 5 years of the Date of Fingerprinting . Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance . Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant¡ Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentification Badges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (a8) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5, 34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the dlscretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charges and Fees to be collected from Registered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (seeAttachment B). Allfees listed on the DTS invoicewill be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy{wo (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fìfth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851,22851.1',228512',22851.3; 2285 1 .4, 2285 1 .6: 2285 1 .8; 2285 1 . 1 0, 2285 1 .1 2 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action, This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outsrde the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts,tirechanges,etc.) Ratesforaservicerequestsshall notexceedone-halftheflatratechargefora light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be consrdered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Gancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorizalion falls under CVC section 22850.5 and further authorized by -16- City resolutions These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12.:-00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15th of the month falls on one of the State recogniãed holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization. Unauthorized access to storage yard . Theft. Mishandling of vehicles stored as evidence. Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest. Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: o Late payment of City franchise fees . Tow truck drivers not wearing City issued LD. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee¡ Unauthorizedride-a-longo Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene o Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defectrve. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -'18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. /Vo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Action Towing & Dive Team, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under thiè Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fres ro, California. 2. Entire Agreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respeót to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of tne parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract theperformance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, 'but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section'1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 el seq. of the California Labor Code 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days writtãn notice without cause, unless otherwise specified. Cause shall be defined as any breach of tltis Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by anyparty to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expression of certain remedies in this Agreement dóes not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees noranyone working under Tow Operator shall be considered an agent or an employee of City. Ñeit-her Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' óompensation or other fringe benefits of any kind through City. '11 . Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to performthe work to City's satisfaction. Tow Operator shall be responsible for the professional quality, téchnical assurance, timely completion, and coordination of all documentation and other goods/services furnis-hed by Tow Operator under this Agreement. Tow Operator shall: perform all work diligenfly, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies riecess"ry therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performancè of the work; and, ifpermitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. '12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not'limited top any time and property damage) incurred by City, Tow Operator, or anyo any and all claims, demands and actions in law or equity (includinga on expenses), arising or alleged to have arisen directly or indirectly out ofp ement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agenls or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph C) This section shall survive termination or expiration of this Agreement. 13. Insurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 O1 and include insurance for "bodily injury," "property damage" and "personaiand advertising injury"with coverage for premises and operations, products and completed operatioñs, -anO contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury-an¿ SZ,'0O0,OOó aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehictes in the care, custody, and control of the Tow Operator with limits of liability of noiless than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles òr other licensed vehicles (Code '1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck. .........$120,000b) Class C tow truck.. .... ....$200,000c) Class D tow truck... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000disease policy limit and $'1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurancepolicies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared tó on the Certificateof lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a fìnancial guarantee, satisfactory to City's Risk Manager, orhis/her designee, guaranteeing payment of losses and related investigations, - claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of covérâge, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due toexpire during the term of this Agreement, Tow Operator shall provide a new'certificate and allapplicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Uponissuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, ánd the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be éndorsed so Tow shall be primary with respect to the city, its officers, officials, employees, volunteers with no contribution required of city. Any workers' compensation contain a waiver of subrogation as to city, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prror to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement City shall apply to all claims and liability regardless of whether any insurance policies are applicable The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees consultants, sub-consultants, subcontractors, or anyone employed directly or indirecfly by any of them F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the unden¡vriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms oi each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleðs and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as de¡ned in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of police or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in. Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests All chanþes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of police or his/herdesignee All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening The "immediate family" members involved in the change or transfer of ownership or control must also possesð and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othen¡vise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Gompliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Parag raph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. Interpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretatíon of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federaf or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othenruise limited, City may immediately terminate or modify this Agreement without penalty C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of theAgreement. ln addition, each party will assistthe other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority 6 H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, emailorthe Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to. All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. 28. Disputes-Aqreement A) ïhe Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement Tow Operato/s failure to diligently proceed shall be considered a material breach of this Agreement. Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - B) c) demand, it shall be deemed a final decision adverse to Tow Operator's contentions City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow any of the provisions, covenants or conditions of this Agreement shall be a material bre n such event the City may, and in addition to any other remedies available at law, in eq ied in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. In the ãlternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of i-hesignature to bind the company. Date: ATTEST: WONNE SPENCE, CMC City Clerk TOW OPERATOR*: DOUGLAS T. SLOAN I /zlzzlt Ll ATTACHMENT A SCOPE OF WORK '1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)) lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership ïow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a o special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD 4. Signaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at nignt. ntt storage facilities must be accessíble to City personnel twenty-four (24) hours per day and seven (7) dáys per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22BSO.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time isthirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less.Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the TowOperator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly lf, after accepting the call, the Tow Operator is unable torespond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. n-response. Each non-response will be immediately I be logged by the DTS System and reviewed by the er than the Tow Operator, the Tow Operator will be portunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may 'Oe grounds fora (30) thirty-day suspension of this Agreement. A third violation will be considered a material brãach of the Agreement and may result in immediate termination of this Agreement ln the case of suspension ortermination, allvehicles then in storage atthe time of the suspension ortermination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles When a Tow Operator ble to provide services due to preplanned/scheduled activity, such as a vacation, m etc., the Tow Operator will notify City in writing via the DTS system at least forty-e City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and allpersonal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theit or other causes. TheTow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east -10_ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12,"Tow Operator Personnel" of this Agreement lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reseryes the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto. profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other offtce personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DU|-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432 3 - 13 - ¡ Actively on parole or on any form of probation ¡ Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentifìcationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice AII identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 eI seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. '|-4. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equioment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment Unless othenvise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25{on truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees wiil be calculated on the calendar day except the first 24-hours whích is counted as a single day in accordance with California CivilCode (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice witl be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.'12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th)day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670,22851',22851.1;2285j2.,22951.3., 22851.4; 22851.6; 22851 8', 22851.10, 22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850 5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than '12.:00 p.m. on the '15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 1sth day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a majoi violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless othenvise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sofe discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar (9500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotationaltow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to. . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, ortermination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToWFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery. $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/Per daY Motorcycles $ 45.00/Per daY Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/Per daY Motorcycles $ 55.00/Per daY Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehrcle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 AIt fees tisted on the DTS invoice will be received in the form of major credit card, debit card or cash. lVo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. - 19 - CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POL¡CE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Ark Towing, a sole proprietorship (the Tow Operator) This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under thié Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respeót to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless othen¡vise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. '12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Goverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personai and advertising injury' with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coveiage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... . ... .. . $120,000b) Class C tow truck... ...$200,000 c) Class D tow truck... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The ínsurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completíon of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. AII "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenryise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws) Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless othenvise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "B", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legalexpenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each pafty has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees perform¡ng work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-dísruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. o 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given ('1)upon actualdelivery, if delivery is by hand; or(2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement TOW OPERATOR*: Bv:Title: Print Name: Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. elnlft APPROVED AS TO FORM DOUGLAS T. SLOAN City At By Date:w 6f(<-t ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: CITY OF FRESNO. 8 t z/zz/tl ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)) lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD offìcer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Signaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours aday, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to g:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otheruvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12,"Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compllance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notiflcations received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnelshall have no criminalrecord which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DU|-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance . Any other crimes enumerated in CVC section 2432.3 -13- . Act¡vely on parole or on any form of probation . Crime of moralturpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Ooerator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5, 34600 et seq, 34620, and 12111, and sections 7231 el seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equioment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12of Ihe CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'") day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851.1;22851.2;22851.3, 22851 .4; 22851 .6: 22851 8: 22851 .1 0, 22851 .12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffìc safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every,City vehicle that was towed during the preceding month and will pay the City no later than 12.-00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicte. ln the event that the 15"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization o Unauthorized access to storage yard o Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call o Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest o Refusal to take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: o Late payment of City franchise fees o Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hourso Repeated rejection of dispatched callso Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipment. Failure to clean up at a collision sceneo Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (,15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fìfteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Offrcer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery. $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and B&K Towing, a sole proprietorship (the Tow Operator). all attachments, contains rules and regulations that a tow company agrees to comply in the tow operations of the City of Fresno Police Department (FPD). Participation in gram (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services-under thii Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respeðt to the matters herein, and there are no restrictions, promises, warranties or undertakings oher than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties Furthermore, neither theperformance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract theperformance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqhtMaterials/Proprietarvlnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs damages, penalties and expenses related to or arising from such claim(s), including, 'but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. Insurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,00ö aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck.. ..... $120,000b) Class C tow truck... ...$200,000c) Class D tow truck.. ... ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each emptoyee Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificateof lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of covérage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies) The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) J employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limi[atio-n upon the amount of indemnification to be provided by Tow Operator Approval or purchase of any insurance contracts or policies shall in noway relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirecfly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy-certified by the undenryriter to be a true and correct copy of the original policy. This requirement sÉátt survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operatorshall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms oi each of thepreceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. ',4. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleés and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined inFresno Municipal Code (FMC) sectíon 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All chanles ortransfers to "immediate family' must be approved by the Chief of Police, or hisiher designee, prior to- such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possesð and keep current all licensing certifìcates and insurance as required in this Agreement The "immediate family" members who will operate or otheruvise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved ín the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is stricfly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension ortermination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operattng any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "B", or "City Administrative / Franchise Fees", in accordance with Paragraph2S of Attachment "A". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party F) Reprocurement Costs: f n the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices. Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS) l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supp-ty services and/or commodities requested, as needed by City, at prices listed in the Agreemeni, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreemént or by law. Tow Operator agrees to allow interviews of any employees or others who mighf reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or hisiher designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision.2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combinatlon of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement TOW OPERATOR: Print Name: Date "lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Bv TOW OPERATOR*: ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: Date: Date: CITY OF FRESNO. APPROVED AS TO FORM DOUGLAS T. SLOAN 8 t z/zz/ t v ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or dísabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Signage and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p m , (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be fogged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of complrance to all local zoning, special use, conditional use and special requírements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authortzing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the Cíty, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Iow Operator Personnel" of this Agreement lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reoardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otheruvise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be ín violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repalr business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and '12804.9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting¡ Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registranto Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the convlction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.'1 (see Attachment B). All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirtyJifth (35tn) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851.1;22851.2;22951.3., 22851 .4; 22851.6; 22851 .8; 22851 .10, 22851 .12 and 22852.5 As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class ofthe truck used, except when vehicle recovery operations require a larger class truck. ihe Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out ofgas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8.00 a m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day ll other times. The gate fee is not to exceed fifty percent (S0%) of may be charged to the vehicle's owner for releases or personal business hours (excluding lien fees, storage fees, taxes, or other sible for assuring that proper gate fees are charged in accordance with this section Over charging gate fees will be considered a major violation as ouflined in Seition 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of Citypersonnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln ¿ddition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchjse fees for every,City vehicle that was towed during the preceding month and-will pay the City no later than 12:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicl-e. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the followinq business dav. Tow Operators who fail to submitthe City's administrative / franchise fees to the City by the 1Sh day of each monthwill be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through ine'OtS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenryise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a muftiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicatìng that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief ofPolice, or his/her designee, reserves the right to impose longer periods of suspensions or immediate terminatíon, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a majór violation A reinstatement from suspension for a major violation will result in a five hundred dollar (9500.00) fee Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbalabuse against public and/or law enforcemento Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17- . Charging rates that exceed those listed in Attachment B . Vehicle released wrthout authorization . Unauthorized access to storage yard o Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotationaltow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: ¡ Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorizedarrival time in excess of thirty (30)minutes, orforty-five (45) minutes during peak hours. Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Pofice or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fìfteen ('15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office The written appeal shall be in compliance with FMC sections 1-407 and 9-1712 Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. 18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45 00/per day Trucks or Trailers $ Average CHP Rates Apply ffi $5soo/perdayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $1 16.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXGLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Fran_chise Tow Agreement (TSA) is entered into effect on the 2gth day of December 2014 setforth below, at Fresno, California, between the City of Fresno, a municipal corporation (City¡ anO Bauer,s AutoWrecking, a Partnership (the Tow Operator). and regulations that a tow company agrees to comply y of Fresno police Department (FpD). participation in ry. Compliance with all of the terms and conditions of ing in the Tow Program. A Tow Operator, by agreeing nt for FPD or City when performing services unãer thiéAgreement 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State ofCalifornia excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venuefor purposes of the filing of any action regarding the enforcement oi inierpretation of this Agreement and anyrights and duties hereunder shall be the county of Fresno, california. 2. Entire Aqreement ts exhibits, when accepted by the Tow Operator either in writing orpe der, contains the entire Agreement between the parties with respett toan trictions, promises, warranties or undertakings other than those sàt tortnion bstitutes or revisions are valid or binding oñ City unless authorized byCity in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties; no oral understanding or agreement not incorporated herein shall be binding on eJther otine parties;and no exceptions, alternatives, substitutes or revisions are valid or binding on City uñ|".s authorized Oy City inwriting. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither theperformance of this p_ortion thereof may be assigned or subcontracted by Tow operatorwithout the express city. Any attempi oy tow-operator to assign or subcontract theperformance or any ment without the exprãss written consent of Cäy shall be invalid andshall constitute a bre t. 5. Unles rL-_:__1:__ rator shall be solely responsible for obtaining alicense or other authorization to use any patented ighted materials in the performance of thisAgreement Tow Operator warrants that any Software as modified through services provided hereunder will notinfringe u ¡ight, or trade secret rignt ot any iniro party. Tow opáratoragrees th fic requirement below, ittnatt indámnify, defénd ano nolO cityand City all such claims and be responsible for payment of all costs,damages, or arising from such claimls¡, including, 'but not limited to,attorney's 6. Non-Discrimination ln the performance of this Agreement, Tow Operator a 1735 of the California Labor Code and not engage nor employment of persons because of the race, religious mental disability, medical condition, marital status, or s violation of this provision shall subject Tow Operator discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreementwithout penalty immediately with cause and_ either party may terminate anei ttrirty (30) days writtðn noticewithout cause, unless othenvise specified. Cause shall be defined as any breach oi tn'¡s Agreement or anymisrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right io terminate theAgreement shall relieve City of all further obligation. 8. Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver orconsent shall be in writing and signed by the party claimed to have waived or consented. Any consent by anyparty to, or waiver of, a breach by the other, whether express or implied, shall not constitute cônsent to, waiverof, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expr-.ssion of certain remedies in this Agreement dóes notpreclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be consi nt Tow Operator and neither Tow Operator, its employees noranyone working under Tow considered an agent or an employee of City. ñeit'her towOperalor, its employees nor der Tow Operatoi, shall qualify for workers, óompensation orother fringe benefits of any ki 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to performthe work to City's satisfaction. Tow Operator shall be responsible for ine þrotessional quality, téchnicalassurance, timely completion, and coordination of all d Operator under this Agreement. Tow Operator shall: workman-like manner; furnish all labor, supervision, m therefore; at its sole expense obtain and maintain a including those of City required in its governmental cap permitted to subcontract, be fully responsible for allwor 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials,employees, agents and authorized volunteers from any and' all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not'limited topersonal injury, death at any time and pro other person, and from any and all clai attorney's fees and litigation expenses), ari performance of this Agreement Tow Op apply regardless of whether City or any o volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs ordamages caused solely by the gross negligence, or caused Oy tfre williul misconduct, of City oi anyof its officers, officials, employees, agents or authorized volunt,eers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under thisAgreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defendCity and each of its officers, officials, employees, agents and authorizäd volunteers in accordancewith the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force andeffect all policies of insurance required hereunder with an insurance company(ies) either (i) admitiedby the California lnsurance Commissioner to do business in the State'of California anò'rated notless than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager Thefollowing policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and i'personaiand advertising injury,,with coverage for premises and operations, products and completed operatioñs, 'anO contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrencé for bodily injury anð property damage, $1,000,000 per occurrence for personal and advertising injury-a,iO $z,OOCj,OOóaggregate for products and completed operations and $2,000,000 generát ãggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of noiless than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most currentversion of lnsurance Service Office (lSO) Business Auto Coverage Form CA O0 01, andinclude coverage for all owned, hired, and non-owned automobiles ór other licensed vehicles(Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury andproperty damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck. $120,000b) Class C tow truck... ..$200,000c) Class D tow truck.. ..$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code andEMPLOYERS' LIABILITY insurance with minimum timits of $1,000,000 each accident, $1,000,000disease policy limit and $1,000,000 disease each employee. ponsible for payment of any deductibles contained in any insurance and row operator shall also be responsible for payment of any self- uctibles or self-insured retentions must be declared to on the Certificate by the city's Risk Manager or his/her designee. At the option of theCity's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, orhis/her designee, guaranteeing payment of losses and related investigations, - claimadministration and defense expenses At no time shall City be responsible for ihe payment ofany deductibles or self-insured retentions. The above described policíes of insurance shall calendar days written notice in favor of City of po except for the Workers' Compensation policy w notice of such cancellation, change or reduction expire during the term of this Agreement, Tow perator shall provide a new certificate and allapplicable endorsements evidencing renewal of such policy prior to the expiration date of theexpiring policy(ies) to the Chief of Police, or his/her designee, and the City's nisk Division. Uponissuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in goverage, Tow Operator shall file with the Chief of Police, or his/her designee, ãnd the City,s RiskDivision, a new certificate and all applicabre endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officeis, officials, agents, employeesand volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so TowOperator's insurance shall be primary with respect to the City, its officers, officials, employees,agents and authorized volunteers with no contribution required of City. Any Workers' Compensationinsurance policy shall contain a waiver of subrogation as to city, its ôfficers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy'certified by the unden¡vriter to be a true and correct copy of the original policy. This requirement sháll survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure íts release and indemnify, defend, and hold City harmleés and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of pôlice, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All chanles or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to- such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fìngerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possesé and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othen¡vise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is stricfly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under newownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the TowRotation List, excluding equipment which may be unavailable due to repairs or when there is a needfor equipment replacement and written approval is obtained from the chief of police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder,employment strike or other cause beyond its reasonable control, provid'ed Tow Operator gives written notice ofthe cause of the delay to City within thirty-six (36)hours of the start of the delay and Tow Operator avails itself ofany available remedies '17. Confidentialitv Tow O ity and City-related records and information pursuantto all s at currently exist or exist at any time during the termof this be considered confidential and kept confidential byTow O ees. 18. Compliance with LawsTow d warra be provided under this Agreement shall fully comply, atTow with all statutes, restrictions, oidinancer, requirements, andregu ot limite by City in its governmental capacity and all other lawsappli at the ; are provided to and accepted by ôity. to* operatoracknowledges that City is relying on Tow Operatorto ensure such compliance 1coìlectiveíy laws¡. Tow Oþeratoragrees that it shall defend, indemnify and hold City and City lndemnitees harmless from alt tiabitity, Oamàges,costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with theScope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unlessotherwise provided for in this Agreement Tow Operator shall pay the City Franchise Fees as listed inAttachment "8", or "City Administrative / Franchise Fees", in accordance with Paiagraph 25 of Attachment ,,A,,. 20. Terms and Gonditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included inthis Agreement 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to beinvalid, void or Ùnenforceable, the remainder of the prrvisions hereof shall remain in full forcá and effect andshall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otheruvise expressly provided 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or conditionof this Agreement, the prevailing party in such proceeding or action shall be entiflêd to recover from the otherparty its reasonable Attorney's fees and legal expenses 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable inthe matters dealt with in this Agreement. ln addition, each party has been represented by experieñced andknowledgeable independent legalcounselof theirown choosing or has knowingly declined to seek such counsel portunity to do so. ave er in executing this any gly, any rule or law ) or on of any ambiguit has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entiiy, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding theemployment of aliens and others and that all its employees performing work under this Agreemen-t r""i th" citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Opãrator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmþration nätorm and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereãfter amended. Tow Operator shall retain all such documentation for all covered employees for the periód prescribed by the lawTow Operator shall indemnify, approved in writíng by City, and hold harmless, City, its agents, officers, and employees ons and any other iiaOìtity which may be assessed agãinstTow Operator or City or both ny alleged violation of any Federal or State statui'es orregulations pertaining to the elig of any persons performing work under this Agreement. 27. Additional Terms and ConditionsA) Term of Agreement: This Agreement shalf commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otheruvise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term olË this Agreement. li such appropriations are not fotlhcoming, the I greement will be terminated without penalty. TowOperator acknowledges that funding or portions of funding for this Agreement may also becontingent upon the receipt of funds from, and/or appropriation of funds by City. lt suóh funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of Interest (Tow Operator): Tow Operator shall exercise reasonable care and diligence toprevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, aîo tn¡roparties associated with accomplishing the w< rk hereunder Tow Operatois efforts shall include, butnot be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards. Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall the other party all papers, materials, and other properties of the other held by of execution of the Agreement. ln addition, each party will assist the other party ion of this Agreement and the transfer of all aspects, tangible and intangible, as for the orderly, non-disruptive business continuation of eaðh party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service fromother sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who iras actual authoñty to bind Tow Operator to each and every term, condition, and obligation of this Agreement and thai all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or(2) upon delivery bythe United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remaiñ the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supfly services and/or commodities requested, as needed by City, at prices listed in the Agreemeni, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreemént or by law. Tow Operator agrees to allow interviews of any employees or others who mighireasonably have information related to such records. Further, Tow Operator agrees to include a similar right tó City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made ingood faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator,s failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/hei designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operato/s -7 - The Parties demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other iemedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specifíed in this Agreement within which to cure the breach; 2) Suspend andior remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. have executed this Agreement "lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the álternatÍve, a singtesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of thesignature to bind the company. APPROVED AS TO FORM DOUGLAS T. SLOAN City Attorney By Date: M. øl( ATTEST: WONNE SPENCE, CMC City Clerk A municipal B /z/zz/rv ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnage and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at nlgnt All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dãys perweek. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (Z) Oays per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22BSO.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or lessTow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable torespond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. e to respond will be esponse. Each non-response will be immediately DTS System. Each e logged by the DTS System and reviewed by thethe non-response is than the Tow Operator, the Tow Operator will be otational list and calle portunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may 'be grounds fora (30) thirty-day suspension of this Agreement. A third violation will be considered a material bròach of the Agreement and may result in immediate termination of this Agreement ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator ble to provide services due to preplanned/scheduled activity, such as a vacation, m etc, the Tow Operator will notify City in writing via the DTS system at least forty-e City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and allpersonal property therein stored by Tow Operator. ft shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. TheTow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required ior'outsidestorage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and businessoffice will be located at the primary storage yard and shall be maintained in a functiónal, cleãn and orderlyfashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment toproperly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes. These measures could include, but are not lìmited to. the yard beingilluminated during darkness, with security type lighting, to such a degree that visual observation oi the ent¡reyard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcfly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle-, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place ofbusiness un the city's les stored at an auxiliary storage facilitywill be cons reement. ll not remove personal-prop"ñy from astored vehic removes a stored vehicie, the Tow òpeiator willmaintain do will requ signed receipt from the registered owner fór propertyreleased. The Tow Operator shall immediately notify the City if any contrabañd, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than '1,000 square feet of clean working space. The facility must be constructed to include aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located atthe Tow Operator's primary storage yard. This inside facility is not required to qualify tor tne City's rotation however, when inside storage is requested for a particular vehicle, the next Tow Opeiator in line meeting theneeds of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track,via a web-based lnternet connection Tow Operators will be required to enter the towed vehicle information asinstructed by the City At no time will a vehicle be released, subject to lien, or junked from impound without allrequired da he Tow Opeiator shall clearlyidentify and ctually released. All City towrequests sh progiam in full operation shallcause the d be grounds for immediatetermination separate agreement, or license for the DTS softwareprogram with the owner of that proprietary software. The City shall not provide the DTS software program, anylicensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator oi tne OfSsoftware program. This Agreement shall not be executed by the City until Tow Opárator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for allfees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and allentries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant tosection 22651.07 of the CVC. The only Tow Operator personnel authorized to utih'ze and access DTb are those !!at hqye fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operaìôr will beremoved from the City towing rotation. ln the event that DTS fails to provide software services, or the City electsto utilize a new software provider, the Tow_Operator will be required to use the replacement towing s'oft*ar"system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as refereñces to the new software program -11 - 11. Official Notification bv Citv Reoardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions ornotifications received from an authorized City employee or electronic notice from the DTS program. lf the TowOperator receives verbal instructions or notifications from a City employee the Tow Operaior ñrust respond toCity, by 5:00 p m (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services req obtain and keep the confidence of the public. employee of the Tow Operator exhibit any of uncooperative, argumentative, threatening, incom employee, or with any member of the public. T assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative,argumentative, threatening, incompetent or dangerous manner. The City alðo reserves the right ¡o cancelan individual tow assignment if in the opinion of the City the Tow Operaior is likely to damagã the vehiclefor which the tow service was called. Other examples of unacceptable behavior inôluOe but ãre not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tów,threatening, aggressive, or assertive language, failure to provide timely information or documents inresponse to a public or City inquiry, lack of respect to any City personnel or member of the public,destruction or damaging of evidence, failure to comply with ihe reasonable request of a member of thepublic, failure to release vehicle in a timely manner, failure to make appointm'ent for release of vehicleduring evening or weekend hours, failure to promptly be on site at time of appointment for release ofvehicle during evening or weekend hours, impeding an investigation or any oth'ei conduct which the Citydeems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operatorand request the next Tow Operator in rotation. Any such behavior as set fórth above shall be conòidereda material breach of this Agreement and may be grounds for immediate suspension or immediatetermination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be reguired to furnish their employees with a distinctive company uniform. Eachuniform shall have the firm's name, as well as the employee's name, in a conspicuous ptace. The towcornpany's name and driver's first name shall be clearly visible at all times, meäning thàt protective orinclement weather outer garments must meet this standard. Each employee shall have sufficient uniformsso as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include ashirt, long pants, and appropriate safety shoes. All drivers shall be in uniÎorm before any towing or serviceoperation begins. No wording, designs, photos, gestures, or anything that could be considered offensiveor obscene to the general public shall be displayed by the Tow Operators or on any part of the uniformDress standards are required in order to project a professional and positive image to ihe public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required toconceal any tattoos with gloves, collars,.long sleeves, or by other meañs acceptable to the City. Facialtattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and HealthAdministration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporatedinto the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivityTh hall not be involved, nor shall the Tow Operator or its employeesbe activity whether verbal, written or conveyed in any other manner,an may be construed as unlawful. lf the City deems the involvementto y terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to anyperson or public or private entity, in consíderation of arranging or requestiñg the services of a tow truck asprovided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or considèration as a result of any activity initiated by the City An example of such a prohibited involvement could include but is not limited to. financial reimbursement pair business for referrals, or towing directly from the scene of a collision to the auto-body ior unsolicited approval or request by the registered owner, driver or insurance companyof the damaged vehicle; kickback to or from a security company or homeowner'ð"finding" or towing a vehicle from a location, whether private property, public, off streetparking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D ) Personnel Licenses Tow Operators providing seruices under this Agreement, including tow truck drivers, dispatchers and otheroffice personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be t re responsibility of the Tow Operator to ensure that allof its personnel will be properly licensed in accordance with sections 12s00, 12520, and 12g04.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice;' program as definedin CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operatoi Cıurse every ¡ve(5) years and copies of completion of the course shall be sent to the City. All Tow Operators andpersonnel shall have no criminal record which would preclude them from being placed in a position of trustwhile in the service of a law enforcement agency or any crime listed below urider the heading of ',Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "Livescan" fingerprint samples shallsubmit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with thé Department of JusticJ Failure to provide information regarding the identity of the owner, employee, or anyone else with afinancial interest in the Tow Operator wilf result in termination of this Agreement The iow Operator willprovide the City with information regarding any change in employee status immediately and update DTSto reflect such changes. Failure to comply may result in further disciplinary action, and will be considereda breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform anyservice under this Agreement until the background record check and "LiveScan" is completeO anåapproved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" cheôk will be aliowed tocontinue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned andbeen rehired must complete an additional background check before performing services pursuant to thisAgreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator,including but not limited to any of the following offenses, may be cause for-denial of applicåtion oitermination of this Agreement: . Any crimes listed in California Penal Code section 290. DU|-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called, Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (aB) hours of an employee's separation Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. ',4. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At thediscretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason theTow Operator is unable to complete the tow service request with the wrecker, the Tow Operatoi will not beplaced back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment However, Tow Operators that possess this equipment will beplaced on a heavy-duty tow rotation list. All trucks must have the required emerge¡cy lighting, portable stop and tail lamps, a broom, shovel, fireextinguisher (rating 4-Br C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approvedabsorbent, rags, unlocking equipment, dollies (boom tr rcks), chains, anð/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by themanufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone offtraveled portions of roadways into inundated areas or other inaccessible locations. Winches must havé visiblelD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City fromconducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operatorshall not display any sign or advertising material that indicates that his tow vehicles are an official police serviceof the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quotecomplete charges and fees with no additional fees to b ¡ added at a later date. These rates will be availabl'e forreview by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemizedand invoiced in DTS the CVC. lt will be the to collect his bill for s sible in any way for the be calculated on the which is counted as a California Civil Code All fees listed on the DTS invoice will be received in theform of major credit card, debit card, or cash All fees collected, both City and Tow Operator fees, must beinvoiced through the DTS system prior to release and at the time of payment. No credit card fees will becharged pursuant to CVC section 22651.1 and CCC section 1748.1 for-any portion of the fees. The Cityreserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached toany vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage aslisted in the DTS system have passed pursuant to section 22851.12 of the ôVC. All lien transactions ruit o"entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to liensales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such tirñe as isconsidered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold atlien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimedvehicles, including but not necessarily limited to CVC sections 22670; 22851; ZZAÉ¡ li ZZ1SI 2., 22851.3; 2285 1 .4; 22851 .6, 2285 1 .8', 22851 .1 0, 2285 1 . 1 2 and 228s2.5. section 22856 of evidence shall not arise against the Tow vehicle at, or d er, a lien sale, as long as the Tow Operator can he was notified the vehicle would no[be needed as evidence inoof may exist i official release in the DTS System or any other writtenconveyance signed by a member of the City prior to the official, written release of the vehicle. '15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Gall Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Addítional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by theCity Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b) All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every,City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the followinq business dav. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15h day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othen¡vise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded_with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicatìng that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a majôr violation. A reinstatement from suspension for a major violation will result in a five hundred dollar (9500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations ínclude, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs 17- o Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints . Any Felony/Misdemeanor arrest. Refusalto take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 3l. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee Examples of minor violations include, but are not limited to: o Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniformo Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipmento Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or Iess resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and g-1712. Notwithstanding any provision within Chapter 1, Article4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, ora termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates. Passenger cars $ 55 00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5.00 p.m Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 AII fees tisted on the DTS ínvoice wilt be received ín the form of major credit card, debit card or cash. No credit card fee wíll be charged pursuant to CVC secfion 22651.1 and CCC section 1748.1. - 19 - CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 setforth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Bulldog Square, a California corporation (the Tow Operator) all attachments, contains rules and regulations that a tow company agrees to comply in the tow operations of the City of Fresno Police Department (FPD). Participation in gram (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program A Tow Operator, by agreeingto participate in the Tow Program, is not acting as an agent for FPD or City when performing services'unãer thisAgreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State ofCalifornia excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venuefor purposes of the filing of any action regarding the enforcement or interpretation of this Ágreement and anyrights and duties hereunder shall be the County of Fres lo, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing orcommencement of performance hereunder, contains the entire Agreement between the parties with respeðt tothe matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized byCity in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties; no oral understanding or agreement not incorporated herein shall be binding on eJther otine part¡es; and no exceptions, alternatives, substitutes or revisions are valid or binding on City uñless authorized by City inwriting 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither theperformance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operatorwithout the express written consent of City. Any attempt by Tow Operator to assign or iubcontract theperformance or any portion of this Agreement without the express written consent of city shall be invalid andshall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials in the performance of thisAgreement. Tow Operator warrants that any Software as modified through services provided hereunder will notinfringe upon or violate any patent, proprietary right, or trade secret right of any ihirO party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify,'defénd anO nótO Cityand City lndemnitees harmless from any and all such claims and be responsible for payment of all costsdamages, penalties and expenses related to or arisi g from such claim(s), including, 'but not limited to,attorney's fees, costs and expenses 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator äcknówledges that aviolation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days writtãn notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expression of certain remedies in this Agreement dóes not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees noranyone working under Tow Operator shall be considered an agent or an employee of City. Ñeit-her Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' ðompensation or other fringe benefits of any kind through City 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to performthe work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnis-hed by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, anð supplies nãcessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, ifpermitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited top any time and property damage) incurred by City, Tow Operator, or anyo any and all claims, demands and actions in law or equity (includinga on expenses), arising or alleged to have arisen directly or indirectly out ofp ement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties,-forfeitures, costs or damages caused solely by the gross negllgence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and'rated not less than 'A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and propefty damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class AJB tow truck... .. ...$120,000b) Class C tow truck... $200,000c) Class D tow truck... ... ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-¡nsured retent¡on as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days writt,en notice of such cancellatíon, change or reduction of coverage ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirecfly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy-certi¡ed by the underwriter to be a true and correct copy of the original policy. This requirement shãll survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to Clty. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms oi each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleås and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of police, or his/her designee, lrch change or transfer shallterminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All chanles or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possesð and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operat¡ons of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is stricfly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, strall not be eligible for a rotation listing for the duration of the suspension ortermination. This section applies to the Tow Operator working in any capacity withìn any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itsetf of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the termof this Agreement. All such records and information shall be considered confidential anà kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, 'and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted Oy ôity Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectiveiy Laws). Tow Oþerator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from alt l¡ability, damages costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required seryices in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Parag raph 25 of Attachment ,,A" 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 2'1. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable inthe matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or -by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section tOS+¡or legal decision that would require interpretation of any ar biguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Rêform and ControlAct of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and ConditionsA) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othen¡¿ise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (l) upon actualdelivery, if delivery is by hand; or (2)upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remaiñ the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to suppty services and/or commodities requested, as needed by City, at prices listed in the Agreemeni, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operatorforthe purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreemént or by law. Tow Operator agrees to allow interviews of any employees or others who mighireasonably have information related to such records. Further, Tow Operator agrees to include a!¡milar right to City to audit records and interview staff of any sub-Tow Operator related to peformance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the chief of police or his/her designee Disputes-Aqreement A) The Parties shall deal ín good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for afinal decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision.2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made ingood faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreemeni. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be 'in writing, and shall be signed by the City Hearing Administrative Offìcer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. Tite: Ae U Dete: ltzt{ -la "lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: ATTEST: WONNE SPENCE, CMC City Clerk The Parties hereto have executed this Agreement. DOUGLAS T By:: I t zlz¿/t,/ ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof These duties are inherent to the job and are to be included in the price of the basic tow bill The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and fofeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law All special operations tows will be subject to the provisions of this Agreement Tow Operator shall respond to a I spec¡al operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Signaqe and hours of Operation The storage yard or business offìce shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m and 4:00 p.m. to 6:00 p m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities f t shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othen¡vise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651 07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day 12. Tow Operator Personnel A.) Conduct The To the services required of it in an ethical, orderly manner, endeavoring toobtain of the public. At no time will the Tow Operator or its agent or ãnyemploy exhibit any of the following behavior: rudeness, or otherwise beinguncoop reatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reseryes the right to cancel an individuál towassignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reseryes the right t,o cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damagé the vehicle for which the tow service was called Other examples of unacceptable behavior include but ãre not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information oidocuments in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of thepublic, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any othei conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniformsso as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general pubfic shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to ihe public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (oSHA) requirements Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the Ciiy deems ihe involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to anyperson or public or private entity, in consideration of arranging or requesting the services of a tow truck asprovided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and j2BO4 9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC sectionlB0S 1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record " E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F ) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft¡ Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to Ìne Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shail prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsiOitity of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of :he above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City isinvolved lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be èalled. Failure to carry an identification badge will be considered a violation as stated in Section 31 "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 eT seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpoèe oi auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 2T7OO and 27907 of theCVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operatoi will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must havé visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in alltow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (seeAttachment B). Allfees listed on the DTS Invòicewill be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651 1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage aslistedintheDTSsystemhavepassedpursuanttosection22Ssl.l2offheCVC. All lientransactionsmultbe entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'") day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851.1;22851.2-,22g51.3; 22851 .4', 22851.6; 22851 .B: 22851 10,22851 .12 and 228s2.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the offrciaf , written release of the vehicfe. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther Kíng Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibilíty of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed backon the top of the rotation listand willreceivethe nexttow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln ¿ddition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce ceftain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchjse fees for every,City vehicle that was towed during the preceding month and will pay the City no later than 12100 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business dav. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the lSh day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otheruvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determinatir n of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedute the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicatìng that they are properly licensed and insured to drive a motor vehicle 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation A reinstatement from suspension for a major violation will result in a five hundred dollar ($S00.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement A reinstatement from suspension will result in a five hundred dollar ($500 00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee¡ Unauthorizedride-a-longo Failure to respond to customers' needs o Failure to maintain proper equipment . Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call. Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver/ Expired Registration $189 00 Arrested / Suspended Driver $266 00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON.EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of Decembe r 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and C&K Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services unãer thii Agreement. 1. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Ágreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of tne parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Gontractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract theperformance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless othen¡vise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold Cityand City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under thrs Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 0'1 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LlABlLlry insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code '1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck.. $120,000b) Class C tow truck... ...$200,000 c) Class D tow truck... ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under thrs Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its offìcer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on fÌle with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fìngerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "B", or "City Administrative / Franchise Fees", in accordance with Parag raph 25 of Attachment "A". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 2'1. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or conditlon of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation ïhis Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othen¡vise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement lf such appropriations are not forthcoming, the Agreement will be terminated without penalty Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City lf such funding and/or appropriations are not forthcoming, or are othenruise limited, City may immediately terminate or modify this Agreement without penalty C) Conflict of Interest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. b H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS) l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. 28. Disputes'Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a flnal decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision.2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shoder time that may be spec¡fíed in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. Title: 42ê/ t1'<-- By ATTEST: YVONNE SPENCE, CMC City Clerk Date: By:: Date: The Parties hereto have executed this Agreement. TOW OPERATOR*: Bv: Print Name: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. APPROVED AS TO FORM DOUGLAS T. SLOAN City ]./t. ctl 8 tzlzzlt* ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twentyJour (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the prrmary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651 07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "-low Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Gitv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenryise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to. financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DU|-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, thrs Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othenvise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charges and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670,22851,22851.1',228512:22851.3: 22851 .4: 22851 .6; 22851 .8; 22851 .1 0, 22851 .12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Gall Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12"00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenruise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. Disciplinarv Action The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless othen¡vise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard . Theft o Mishandling of vehicles stored as evidence¡ Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staffo Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusalto take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToMFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $1 16.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. /Vo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POL¡CE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Custom Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Agreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreementwithout penalty immediately with cause and either party may terminate attei tfrirty (30) days writtãn noticewithout cause, unless otherwise specified. Cause shall be defined as any breach oi tftis Agreement or any misrepresentation or fraud on the part of the Tow operator. Exercise by city of its right to terminate the Agreement shall relieve City of all further obligation. 8. Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by anyparty to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expression of certain remedies in this Agreement dóes notpreclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees noranyone working under Tow Operator shall be considered an agent or an employee of City. Ñeit'her TowOperator, its employees nor anyone working under Tow Operator, shall qualify for workers' óomp"nsation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to performthe work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all do nis-hed by TowOperator under this Agreement. Tow Oper in a goo'd andworkman-like manner; furnish all labor, sup lies necessarytherefore; at its sole expense obtain and lic authorities, including those of City required in its govern city, in connection with performance of the work; and, ifpermitted to subcontract, be fully responsible for allwork performed by sub-Tow'Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties forfeitures, costs and damages (whether in contract, tort or strict liability, including but not'limited topersonal injury, death at any time and pro other person, and from any and all clai attorney's fees and litigation expenses), ari performance of this Agreement. Tow Op apply regardless of whether City or any o volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of Cíty or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California anà rated not less than 'A-Vll' in Best's lnsurance Rating Guíde, or (ii) authorized by City's Risk Manager The following policies of insurance are required: 2 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of fnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for alf owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury and property damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: ClassA/B towtruck... ......$120,000 Class C tow truck.. ..$200,000 Class D tow truck.. $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $'1,000,000 each accident, $j,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of covérage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies) The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be éndorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, a) b) c) 5) B) c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limiiation upon the amount of iñdemnification to be provided by Tow Operator Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirecfly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy-certified by the underuvriter to be a true and correct copy of the original policy. This requirement shåll survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms oi each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleés and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as de¡ned in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening The "immediate family" members involved in the change or transfer of ownership or control must also possesé and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the termof this Agreement. All such records and information shall be considered confidential anâ kept confiãential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other lawsapplicable to the services at the time services are provided to and accepted Oy ôity. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectiveÍy Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City fndemnitees harmless from all tiability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unlessotherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Parag raph 25 of Attachment ,,A',. 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 2',. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full forcé and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless othenryise expressly provided. 23. Attornev Fees lfeither party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experieñced and knowledgeable independent legalcounselof their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or 6y any person representing them, or both. Accordingly, any rule or law (including California Civil Code section tOSa¡ or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entiiy, enforceable in accordance with its terms 26. Employee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreemenl meei the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Opêrator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmþration Rêtorm and Control Act of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereãfter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed agãinst Tow Operator or City or both in connection with any alleged violation of any Federai or State statuiês or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and ConditionsA) Term of Agreement: This Agreement shall commence on December 2A, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. li such appropriations are not forthcoming, the I greement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf suðh funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence toprevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, butnot be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall the other party and s of the other r-rerd by of execution of t dition I assist the other party ion of this Agree r of a ible and intangible, as for the orderly, n s con h party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authoiity to bind Tow Operator to each and every term, condition, and obligation of this Agreement and thai all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supp-ly services and/or commodities requested, as needed by City, at prices listed in the Agreemeni, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who mighireasonably have information related to such records. Further, Tow Operator agrees to include alimilar right to City to audit records and interview staff of any sub-Tow Operator related to performance of th¡s Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made ingood faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR*: Title.Bv TOW OPERATOR: Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. In the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. CITY OF FRESNO. A municipal By DOUGLAS T. SLOAN City vl.bl ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: Date: Date: I t zlzz/ t'l ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towino Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding tñe flowof traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well aé the link to the vehicle search system in DTS as follows: www.flndmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or specíal operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain witñ the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowedon any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and hasbeen approved by FPD. 4. Signaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. ic from the street and must be visible at night. All y-four (24) hours per day and seven (7) days per ty-four (24) hours per day and seven (7) days per Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30)minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22ASO.3 andZ2Abl.Ol and include an after-hours contact phone number for Tcw Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximumresponse time limits as established by the Chief of Police or his/her designee A reasonable response time isthirty (30) minutes or less, except during peak hours of 7:00 a.m. to g:00 a.m. and 4:00 p.m. to 6.00 f.m.,(lvlonday through Friday), when the required response time will be extended to forty-five (4S) minutes or less.Tow Operator shall respond with a tow truck of the r lass required to tow the vehicle sþeóifieO by the DTSSystem. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the TowOperator is either unable to respond or unable to meet the maximum response time, the tow operator shallimmediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable torespond or will be delayed in responding, the Tow Operator shãll immediately update the DTS systemaccordingly. n-response. Each non-response will be immediately I be logged by the DTS System and reviewed by the er than the Tow Operator, the Tow Operator wilt Oe pportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand whichmay be subsequent to a meeting between the Tow Operator and the City. À second breach may 'Oe grounds fora (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of theAgreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or terminationremain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City willhave the option to remove and/or transfer stored vehicles. When a Tow operator ble to provide services due to preplanned/scheduled activity,such as a vacation, m etc., the Tow Operator will notify City in writing via the DTSsystem at least forty-e City reserves the right to deny these requests to maintainadequate service levels for tow operations. Failure to notify the City will Oe considered a non-response and amaterial breach of this agreement. 7 - Storaqe Responslbilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessbries and equipment thereon and allpersonal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such storedvehicles, accessories, equipment, and property against all loss or damage by fire, theit or other causes. TheTow Operator will have available for review by City personnel, all permit! and proof of compliance to all localzoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of theTow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined aswithin the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required ior'outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction Tow Operator is responsible for the reaåonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functiónal, clean and orderlyfashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment toproperly run DTS software and to send and receive email ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation oi the entireyard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direc¡y to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenryise by the City's Tow Coordinator. Vehicles stored at an auxiliary storagä facilitywill be considered a breach of this Agreement. The Tow Operator shall not remove personal'propeñy from a stored vehicle. lf the registered owner removes personal property from a stored vehicie, the Tow öpeiator willmaintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contrabañd, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather The facility should have a concrete floor and sufficient lighting. This inside facility must be located atthe Tow Operator's primary storage yard. This inside facility is not required to qualify foi tne City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Opeiator in line meeting the ,needs of the City's request will be used. 10. DTS Requirements Ïow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Opeiator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS progiam in full operation shallcause the immediate removal of the Tow Operator from the tow rotation and bé grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator oi tne OtS software program. This Agreement shall not be execut d by the City until Tow Operator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time,' and all entries should reflect as such lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTb are those that have fully complied with the provisions set forth in Section 12, "Iow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operai'or will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as refererices to the new software program -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or ãny employee of the Tow Operator exhibit any of the following behavior. rudeness, or othenruise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individuãl tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but ãre not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowne/i association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure tfrai alt of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12904 g of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC sectionl808.1 et seq.. Drivers must complete a CHP approved Tow Operator Cıurse every five(5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Íow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed aná approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be aliowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and 'been rehired must complete an additional background check before performing services pursuant to this Agreement F.) CriminalRecord A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle thefto Fraud¡ Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required t rationale or factual information in the event it elects to deny application or remove a personnel from providing services for the City under thisAgreement. Tow driver ts denied under this section may appeal to ine Chief of Police or his/her designe Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is c be given the opportunity to replace that empl prohibit the City from removing, suspending or t the Tow Operator to provide the City with upda conviction of any Tow Operator and/or employe of guilty or nolo contendre, even to any lesser-i provide information regarding the identity of the employee, or anyone else with a financial interest in theTow Operator will result in termination of the Agreement. Failure to provide information to the City of anyinformation regarding the conviction of any of :he above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck he Tow Operator shall wear, in plain view an identification badge,authorized and that employee, while on any call for service where the City isinvolved. lf a . ds to a scene without his authorized name badge, the tow truckdriver will be d e and the next Tow Operator in rotation will be ãalled Failure tocarry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action,,'ofthis Agreement. The purpose of these badges will be to identify those employees of tfre fow Operatorwho have been fingerprinted by the City and have passed the record check by the Department of Justice. es are the property of the City and will be returned by the Tow Operator to the City hours of an employee's separation. Tow Operator will provide a current list of all dispatchers, etc. Anytime tl"ere are any changes to this list, the City is to be notified by the next business day and provided with an updated and current iist 13. Tow Operator Licensino and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current andvalid at all times as required in CVC sections. 34507.5,34600 etseq, 34620, and12111, and sections 7231 etseq, of the California Revenue and Taxation code. Failure to have any required license or certification, includingany driver who fails to have an appropriate class of license, may be grounds for immediate termination by Citywithout penalty. '|-4. Inspection All real vehicle facilities, equ rials used by the Towoperat ired herein shall be on by the óity or itsauthori less than one annual ional inspections maybe con s hours. lnspections are not limited to, allbooks, records, supporting documentation, including payroll andaccounts payable/receivable records, and other papers oi property of Tow Operator for the purpoie of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are i sufficient, derelict or fail to meet the reqúirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penaliy. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained ín compliance with sections 24605, 2s2s3,2s300, 27700 and 27907 of theCVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capãbilities and the abílity to communicate and connect with the DTS System at all times. The Tow Operator shail have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services'with anadjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum offifty (50) feet of cable, and the required safety equipment Unless otherwise specified by the City, all Tow _14_ Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At thediscretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason theTow Operator is unable to complete the tow service request with the wrecker, the Tow Operatoi will not beplaced back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will beplaced on a heavy-duty tow rotation list. All trucks must have the required emergeÌìcy lighting, portable stop and tail lamps, a broom, shovel, fireextinguisher (rating 4-Br C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approvedabsorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by themanufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone offtraveled portions of roadways into inundated areas or other inaccessible locations. Winches must havé visiblelD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City fromconducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operatorshall not display any sign or advertising material that indicates that his tow vehicles are an official police serviceof the City. 17. Charqes and Fees to be collected from Reoistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles These rates shall quotecomplete charges and fees with no additional fees to b: added at a later date. These rates will be available forreview by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemizedand invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibilityto collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees willbe calculated on the calendar day except the first 24-hours which is counted as a single dãy in accoúance withCalifornia Civil Code (CCC) 3068.1 (see Attachment B) All fees listed on the DTS invóice wilt be received in theform of major credit card, debit card, or cash All fees collected, both City and Tow Operator fees, must beinvoiced through the DTS system prior to release and at the time of payment. No credit card fees will becharged pursuant to CVC section 22651.1 and CCC section 1748.1 for-any portion of the fees. The Cityreserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached toany vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage aslisted in the DTS system have passed pursuant to section 22851.'12 of the CVC. All lien transactions muit beentered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to liensales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at tien until such tirñe as isconsidered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold atlien, but under no circumstances before the thirty-fifth (3sth) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimedvehicles, including but not necessarily limited to CVC sections 22670',22851; ZZe-St.ti ZZASI.2,22BS1.3, 22851.4', 22851.6; 22851 .8; 22851.10, 22851.j2 and 22 tS2.S. 6 of evidence shall not arise against the Towd ¡, a lien sale, as long as the Tow Operator cand he vehicle would not be needed as evidence ini official release in the DTS System or any other writtenconveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust raies set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class ofthe truck used, except when vehicle recovery operations require a larger class truck. Íhe Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America(ïRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate chargà for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) ofthe flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as ouflined in Settion 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln eddition, the Tow Operator will be given one exira tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 228SO.S and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with theCity's Traffic Bureau. The Tow Operator will collect fees on the behalf of the bity from the registered owner,legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by theCity' Fees will be established by an independent con;ulting firm to determine the City's costs ässociated withimpounding vehicles in accordance with cVC sections 22850.5 and 12110(b). All ve'h¡cles impounded will becharged an administrative / franchise fee for the release of the vehicle. This fee will be established and attachedto each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release bythe Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrativefees for every vehicle that is not picked up by the owner or agent. The Tow operator will pay the city'sadministrative / franchise fees for.every_,pity vehicle that was towed during the preceàing month and-will pay theCity no later than 12:00 p.m. on the 15'n of the following month, regardlels of the dispósition of tne ven¡cte. lnthe event that the 15"' of the month falls on one of the State recogniied holidays listed in Section 22 above, or aweekend, the City's administrative/franchise fee must be paid by 12'.00 p.m. on the followinq business dav. TowOperators who fail to submit the City's administrative / franchise fees to the City by the 15h day of eaãn'monthwill be immediately suspended from rotation until all fees are received, and w¡ll be subjeci to appropriatedisciplinary action and civil recourse. The City will keep a strict accounting of these feeé through tn"'OfSSystem and frequent audits will take place to ensure accurate and timely payment of collected Cityadministrative / franchise fees. The fee will be listed as an item on the owner's I ageht's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othen¡vise, having evidentiary value, not officiallyreleased by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a majoiviolation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded_with a multiple day hold may only be released prior to the impound period with writtenauthorization by the City in the DTS System. The DTS System will automatically schedule the release of animpounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of astored or impounded vehicle, it is the Tow Operator's ris hereby granted authority to release to the registe pursuant to section 22850.3 of the CVC. At the time owner, legal owner, or authorized representative takin they are properly licensed and insured to drive a motor 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violationsinvestigated and sustained. Unless otheruvise noted, the Chief oi Police, oihis¡ner designee, will determine theperiod of suspension and shall retain discrelion regarding the length of any suspension imposed pursuant to theterms and conditions of this Agreement. The City shall retain record of violafions for at least the term of thisAgreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of thisAgreement. Suchviolationsshall resultinsuspensionorimmediateterminationofthisÀgreement.TheChiefof Police, or his/her designee, reserves the right to impose longer periods of suspénsions or immediatetermination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reservesthe right to remove a Tow Operator from the tow rotation during the investigation of a m4ór violation. Areinstatement from s lation will result in a five hundred dòllar ($500.00) fáe. Suspensionwill not be lifted until received by the Chief of police or his/her designee. ln addition, amajor violation may Operator'r employee being removed from þarticipation in thisAgreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcemento Verbal abuse against public and/or law enforcemento Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yardo Theft o Mishandling of vehicles stored as evidence. Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusalto take a rotational tow¡ Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard. Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniformo Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designeeo Unauthorizedride-a-long. Failure to respond to customers' needso Failure to maintain proper equipmento Failure to clean up at a collision scene. Vehicle code infractions 32. Hearing/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (1S) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the TowUnit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fìfteen (1S) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1407 and g-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. '18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recoverv: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaoe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m through 5.00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be receíved in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 174A.1 . -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and D&B Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to complywith in order to participate in the tow operations of the City of Fresno Police Department (FPô). participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services'unãer this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venuefor purposes of the filing of any action regarding the enforcement or interpretation of this Ágreement and any rights and duties hereunder shall be the County of Fres lo, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings otlrer than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding oñ City unless authorized byCity in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties; no oral understanding or agreement not incorporated herein shall be binding on elther ofihe parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Gontractino The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither theperformance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or -subcontråct theperformance or any portion of this Agreement without the express written consent of Clty shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proorietarv lnfrinqement Unless othenrvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials ¡h tne performance of thisAgreement. Tow Operator warrants that any Software as modified through services provided hereunder will notinfringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defénd anO nótO Cityand City lndemnitees harmless from any and all such claims and be responsible for payment of all costs,damages, penalties and expenses related to or arising from such claim(s), including, -but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancéstry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator ãcknówledges that aviolation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirly (30) days written notice without cause, unless othenvise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: Class A/B tow truck... ...... ..$120,000 Class C tow truck. ... $200,000 Class D tow truck ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigatrons, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies) The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, a) b) c) 5) B) c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underuvriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenvise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otheruvise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654)or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement 27. Additional Terms and Gonditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator wrll be held responsible to pay City the difference between the Agreement cost and the price paid City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. b 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remarn the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a fìnal decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand ìs made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR: Bv: -ff¡rk",^ L.6^^-_ printName: gcù.rûà t. IÈFßNàA *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. APPROVED AS TO FORM DOUGLAS T. SLOAN Date: Date:By City ATTEST: WONNE SPENCE, CMC City By:: Date:tzlzzltl CITY OF FRESNO. 8 ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p m , (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Resoonse The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS soflware and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othen¡vise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651 07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 1'1. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meanrng that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.l et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290¡ DU|-Within 5 years of the Date of Fingerprintingo Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotrcs or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude . Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing seruices for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 3'1, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. '14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equioment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othenvise specified by the City, all Tow -14- Operators shall respond to a tow seruice request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670; 22851', 22851.1; 22851.2', 228513: 22851.4, 22851.6; 22851.8; 22851.10, 22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -'15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc. ) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'h day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othen¡vise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciolinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft o Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued I D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee¡ Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment . Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Aopeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appealthat fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary actron amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Heartng Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed 18 ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToWFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storage Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 Altfees tisted on the DTS invoice witl be received in the form of major credit card, debit card or cash. /Vo i credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 281h day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and D&K Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD) Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Gontractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv lnfrinqement Unless othenruise expressly provided tn this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless othenvise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 1'l . Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vlf in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required. 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operatioñs, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $'1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code l- Any Auto) with limits of not less than 91,000,000 per accident for bodity injury and property damage 4) ON-HOOIíCARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck..... ...$120,000b) Class C tow truck... ... ... . ... $200,000c) Class D tow truck .. ... . .. $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employeé. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days writtên notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow shall be primary with respect to the City, its officers, officials, employees, volunteers with no contribution required of city. Any workers' compensation contain a waiver of subrogation as to city, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's executlon of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement City shall apply to all claims and liability regardless of whether any insurance policies are applicable The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. ',4. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Gomoliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "B", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "A". 20. Terms and Gonditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included rn this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce. any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other pafty its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California CivilCode section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement 27. Additional Termsand ConditionsA) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othenryise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othen¡vise limited, City may immediately terminate or modify this Agreement without penalty C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operato/s employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. -6- H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or(2)upon delivery bythe United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer penod of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to rnclude a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be fonvarded to the Chief of Police or his/her designee 28. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - B) c) demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be spec¡fied in this Agreement within which to cure the breach; 2) Suspend andlor remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty The Parties hereto have executed this Agreement. rire: 1ntSP¿tT n*" l)Q-14 TOW OPERATOR*: Bv'Title: Print Name:Date: *lf a corporation or limited liability company, the document must be srgned by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: APPROVED AS TO FORM DOUGLAS T. SLOAN City utY B ran¿.¡ rt. ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: CITY OF FRESNO. I tz/zz)r I ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termínation, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operat¡on with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifÌes it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) mínutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850 3 and 22651 07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4.00 p.m. to 6.00 p m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. Crty reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _ .10 _ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenrvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section '12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. OfficialNotification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or seryice operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C ) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804 9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290o DUI-Within 5 years of the Date of Fingerprinting¡ Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony críme relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude . Sex, Arson, Narcotics Registrant . Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (a8) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651 1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of fhe CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35"') day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851: 22851.1; 22851.2; 22851 3', 2285 1 . 4', 2285 1 .6: 22851 .8', 22851 . 1 0, 2285 1 . 1 2 and 22852. 5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Gall Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between B:00 a.m through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Gancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15th of the following month, regardless of the disposition of the vehicle. ln the event that the 151n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12.00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15' day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenruise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authortzed representative, pursuant to sectlon 22850.3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or hisiher designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement . Verbal abuse against public and/or law enforcement . Resisting arrest . Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard r Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints o Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment . Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective, ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the ïow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter'1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested./ Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. ,Vo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCH¡SE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Dennis Towing, a sole proprietorship (the Tow Operator) This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when peÍorming services under this Agreement. ',. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Gontractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defìned as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work, and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operatois obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager The following poficies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury anð property damage, $1,000,000 per occurrence for personal and advertising injury and 92,000,00ö aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 0O 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code '1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) ClassA/Btowtruck... .....$120,000b) Class C tow truck... ..... .. ...$200,000c) Class D tow truck... .$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her desrgnee, either. 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shalf be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so-Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) J employees and author¡zed volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on fìle with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement The "immediate family" members who will operate or othenryise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be dírectly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances ís strictly proh¡bited. B) lf terminated or suspended, Tow Operator andlor its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be consldered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from alt liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Parag raph 25 of Attachment "A". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legalaction to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legalexpenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, 8 U S.C. 51324 et seq., as they currently exist and as they may be hereafter amended Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or podions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othen¡vise limited, City may immediately terminate or modify this Agreement without penalty. C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or(2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adversé to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operato, commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other iemedies available at law, in equity, or othenryise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement TOW OPERATOR*: BY:Title: Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. tn the ãfternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of thesignature to bind the company. APPROVED AS TO FORM DOUGLAS T. SLOAN City Date: Date: H.øt ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: CITY OF FRESNO. I tz/zzf t I ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all -State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under Catifornia Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violaiion of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding tñe flowof traffic, or which for any other reason, are within the jurisdiction of the FPD As required by ìaw, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an otficer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and'to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain w¡tñ tne special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service The sign shall have letters that are clearly visible to the public from the street and must be visible at iignt All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dãys perweek The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22BSO.3 and ZZAiSl.Ol and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m to 9:00 a.m. and 4.00 p.m. to 6:00 p.m ,(Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the veñicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable torespond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. esponse. Each non-response will be immediately e logged by the DTS System and reviewed by the than the Tow Operator, the Tow Operator will be portunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may 'be grounds fora (30) thirty-day suspension of this Agreement. A third violation will be considered a material brãach of the Agreement and may result in immediate termination of this Agreement ln the case of suspension ortermination, allvehicles then in storage atthe time of the suspension ortermination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area " Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _10_ and Chateau Fresno to the west Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required ior'outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functiónal, cleãn and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment toproperly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation oi the entireyard may be accomplished at all times, improved fencing and/or security patrols All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direc¡y to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of tne ven¡cle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otheruvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storagä facilitywill be considered a breach of this Agreement. The Tow Operator shall not remove personal-propeñy from astored vehicle. lf the registered owner removes personal property from a stored vehicie, the Tow òpeiator willmaintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contrabañd, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather The facility should have a concrete floor and sufficient lighting. This inside facility must be located atthe Tow Operator's primary storage yard. This inside facility is not required to qualify for tfie City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Opeiator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track,via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information asinstructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS progiam in full operation shallcause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS softwareprogram with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operatðr oi tf'e'OtS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTb are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operaiôr will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City electsto utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as refereñces to the new software program. -11 - '11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions ornotifications received from an authorized City employee or electronic notice from the DTS program. lf the TowOperator receives verbal instructions or notifications from a City employee the Tow Operaior must respond toCity, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services req obtain and keep the confidence of the public. employee of the Tow Operator exhibit any of uncooperative, argumentative, threatening, inco employee, or with any member of the public. assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative,arg competent or dangerous manner. The City also reserves the right to cancelan if in the opinion of the City the Tow Operator is likely to damagã the vehiclefor called. Other examples of unacceptable behavior include but ãre not limitedto: age, disconnecting telephone calls for public inquiries regarding a tow,threatening, aggressive, or assertive language, failure to provide timely information oidocuñents inresponse to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the rèasonable request of a member of thepublic, failure to release vehicle in a timely manner, failure to make appointmênt for release of vehicleduring evening or weekend hours, failure to promptly be on site at time of appointment for release ofvehicle during evening or weekend hours, impeding an investigation or any oth'er conduct which the Citydeems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operatorand request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediatetermination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform Eachuniform shall have the firm's name, as well as the employee's name, in a conspicuoui place The towcompany's name and driver's first name shall be clearly visible at all times, meaning that protective orinclement weather outer garments must meet this standard. Each employee shall have sufficient uniformsso as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include ashirt, long pants, and appropriate safety shoes. All drivers shall be in uniiorm before any towing or serviceoperation begins. No wording, designs, photos, gestures, or anything that could be considere-d offensiveor obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform,Dress standards are required in order to project a professional and positive image to ihe public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required toconceal any tattoos with gloves, collars,.long sleeves, or by other meañs acceptable to the City. Facialtattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and HealthAdministration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost gàrment. C.) UnlawfulActivitvTh hall not be involved, nor shall the Tow Operator or its employeesbe activity whether verbal, written or conveyed in any other manner,an may be construed as unlawful. lf the City deems the involvementto y terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to anyperson or public or private entity, in consideration of arranging or requesting the services of a tow truck asprovided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance corpany representative of the damaged vehicle; kickback to or from a security company or homeowner'å association for "finding" or towing a vehicle from a location, whether private property, public, off streetparking facility or a public roadway Violation of this provision shall be grounds for immediate termination by City, without penalty. D ) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that allof its personnel will be properly licensed in accordance with sections 12SOO, 12520, and 12g04 9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice;' program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Cıurse every five(5) years and copies of completion of the course shall be sent to the City. All Tow Operators andpersonnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below unier the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with thè Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Íow Operator willprovide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement After execution of this Agreement, no person shall be employed by the Tow Operator or perform anyservice under this Agreement until the background record check and "LiveScan" is completed aná approved by the City and said employee has receive< their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" cheðk will be aliowed tocontinue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for-denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290¡ DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- o Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny appl¡cat¡on or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called Failure to carry an identification badge will be considered a violation as stated in Section 3l, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (a8) hours of an employee's separation Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 eI seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. '14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle andlor a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request lf for any reason theTow Operator is unable to complete the tow service request with the wrecker, the Tow Operatoi will not beplaced back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25{on truck is not required equipment. However, Tow Operators that possess this equipment will beplaced on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-Br C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations Winches must havé visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police àervice of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shafl be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single dãy in accorãance with California Civil Code (CCC) 3068.'1 (see Attachment B). Allfees listed on the DTS ¡nvôice will be received in theform of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will becharged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions mu-st be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to liensales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such tirñe as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (3s'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670,228s1,228'51.ti 22A5t.2.,22851.3., 22851.4; 22851.6; 22851.8', 22851.10, 22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence ina legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towino Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. Ïhe Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day MemorialDay lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times The gate fee is not to exceed fifty percent (S0%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote trafftc safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections228505 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12,.!0 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recogniied holidays Iisted in Section 22 above, or a weekend, the City's administrativdfranchise fee must be paid by 12:0Q p.m. on the following business dav. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15ft day of each monthwill be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees througir ine OtS System and frequent audits will take place to ensure accurate and timely payment of coilected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determinatir n of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in thè DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicatìng that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained Unless othen¡vise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations ínclude any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reseryes the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar (gS00.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard. Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to callo Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusalto take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of mínor viofations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniformo Unauthorized arrival time in excess of thirty (30) minutes, or fortyfive (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee¡ Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipment. Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the TowUnit Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operatorwith disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technolooy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates. Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or ïrailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (S0%) of the flat rate charge for a fight duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. /Vo credít card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Discount Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing 4. Assiqnment or Sub Contractins The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqhtMaterials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 eT seq. of the California Labor Code. 1 7 - Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate attei tfrirty (30) days writtãn noticewithout cause, unless otherwise specifìed Cause shall be defined as any breach of ¡-ris Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right io terminate the Agreement shall relieve City of all further obligation 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by anyparty to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expression of certain remedies in this Agreement dóes notpreclude resort by either party to any other remedies provided by law. l0- lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees noranyone working under Tow Operator shall be considered an agent or an employee of City Ñeit'her TowOperator, its employees nor anyone working under Tow Operator, shall qualify for workers' óompensation or other fringe benefits of any kind through City 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to performthe work to City's satisfaction. Tow Operator shall be responsible for ihe professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnis-hed by Towoperator under this Agreement. Tow Operator shall: perform all work diligenly, carefully, and in a gooä andworkman-like manner; furnish all labor, supervision, machinery, equipment, materials, anã supplier r.räcess"ry therefore; at its sole expense obtain and maintain all permits and licenses required Oy pu'Otic authorities, including those of City required in its governmental capacity, in connection with performancå of the work; and, ifpermitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. '12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not'limited top any time and property damage) incurred by City, Tow Operator, or anyo any and all claims, demands and actions in law or equity (includinga on expenses), arising or alleged to have arisen directly or indirectly out ofp ement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agenls or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorizèd volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and'rated not less than "A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and 92,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 0O 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows. a) Class A/B tow truck... ..$120,000b) Class C tow truck... ... .. $200,000c) Class D tow truck.. $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $'1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) J employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execufion of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any-insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in noway relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed direcfly or indirecily by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy'certified by the underwriter to be a true and correct copy of the original policy This requirement sháll survive expiration or termination of this Agreement G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City.Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operatorshall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms oî each of thepreceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleés and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanoe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined inFresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of pôlice, or his/herdesignee, shallterminate this Agreement. This incìudes but is not limited to changes in:Corporate gers, Directors, Treasurer, Trustees, or ownership interests. All chanles or transfers t ust be approved by the Chief of Police, or his/her designee, prior tı such change or transfer in. order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The ,'immediate family" members involved in the change or transfer of ownership or control must also possesı and keep current all licensing certiflcates and insurance as required in this Agreement. The "immediate family" members who will operate or otheruvise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is stricfly prohibited. B) lf terminated or suspended, Tow Operator and/or íts owner at the time of the suspension ortermination, shall not be eligible for a rotation listing for the duration of the suspension or termínation. This section applies to the Tow Operator working in any capacity withìn any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentiality Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Gompliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otheruvise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legalcounselof theirown choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654)or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. 51324 et seq , as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutès or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Termsand Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othenruise terminated by City B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement lf such appropriations are not forthcoming, the Agreement will be terminated without penalty Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othenruise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict öf lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, Ioans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs; ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or(2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement Usage figures, if provided, are approximate, based upon the last usage Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit ani verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othenvise specified in this Agreement, undertake any of the individual actions or any combination of the following actions. 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. ô ushc r Date: /2- 1' /o/Y TOW OPERATOR*: Bv:Title: TOW OPERATOR: Print Name: Date: "lf a corporation or limited liability company, the document must be signed by two corporate officers The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. CITY OF FRESNO. APPROVED AS TO FORM DOUGLAS T. SLOAN City )'l- ¿ot ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: Date: Date: 8 tlz4tv ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violaiion of this section will be considered a material breach of the Agreement and may result in immediate términation of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding tñe flowof traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)) lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle orvehicle intended for storage from a FPD rotation call or special operation Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non-preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence,the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact theTow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to theTow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are wílling to remain witñ tne special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation, "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operat¡on with a flatbed tow truck with the capability of towing (2) vehicles No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD 4. Signage and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 228503 and 2265i.07 and include an after-hours contact phone number for Tow Operator 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a m. to g:00 a.m and 4:00 p.m. to 6:00 p m ,(Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly To decline or refuse to respond will be considered a non-response Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement ln the case of suspension ortermination, allvehicles then in storage atthe time of the suspension ortermination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. L Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required ior outsidestorage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf thetow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reaÀonable care,custody, and control of any property contained in towed or stored vehicles. The storage facility and businessoffice will be located at the primary storage yard and shall be maintained in a functiónal, clean and orderlyfashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment toproperly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation oi the entireyard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcfly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of tne vefi¡cte, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place ofbusine the city's les stored at an auxiliary storage facilitywill be reement. ll not remove personal-properiy from astored removes a stored vehicie, the Tow operator willmainta will requ signed receipt from the registered owner fòr property released. The Tow Operator shall immediately notify the City if any contrabañd, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located atthe Tow Operator's primary storage yard. This inside facility is not required to qualify tor tne City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Opeiator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information asinstructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without allrequired data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City towrequests shall be made utilizing this program. Failure at any time to have the DTS progiam in full operation shallcause the immediate removal of the Tow Operator from the tow rotation and bé grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or ticense for the DTS softwareprogram with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator o-t tf'e OtS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for allfees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time,, and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTb are those that have fully complied with the provisions set forth in Section 12,"fow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operaior will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City electsto utilize a new software provider, the Tow Operator will be required to use the replacement towing softwaresystem. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as refereñces to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Offícial notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or ãny employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior ¡nôluOe but ãre not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information oidocuments in response to a public or City inquiry, lack of respect to any City personnel or member of the public destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to lhe public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems ihe involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner'ð association for "fìnding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12g04.9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Cıurse every ¡ve(5) years and copies of completion of the course shall be sent to the City All Tow operators andpersonnel shall have no criminal record which would preclude them from being placed in a position of trustwhile in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record " E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City þrior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Íow Operator willprovide the City with information regarding any change in employee status immediatety and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform anyservice under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has receive< their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be aliowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) CriminalRecord A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Act¡vely on parole or on any form of probation. Crime of moralturpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to ine Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator maybe given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall ä;iìiiilii,ii:'fl ll,ilL'"il"'.tr¿:",il.ï:fiîiffi i.iffi ::]:3llti:l tor and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convict¡ons. Failure toprovide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G ) ldentification Badges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City isinvolved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be ãalled. Failure to carry an identification badge willbe considered a violation as stated in Section 31, "Dísciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of t'he fow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. es are the property of the City and will be returned by the Tow Operator to the City hours of an employee's separation. Tow Operator will provide a current list of ail dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5, 34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the TowOperat nce of the services required herein shall be open to inspection by the City or itsauthori and will be subject to no less than one annual inspection. Additional-inspectiohs may be con ce during normal business hours. lnspections may include, but are not limited to, ailbooks, , reports, files, financial reccrds, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpole oi auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are ir sufficient, derelict or fail to meet the reqúirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penaliy. 15- Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of theCVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capãOitities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shail have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum offifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City all Tow _14_ Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharges and Fees to be collected from Registered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068 I (see Attachment B) All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City untif after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851 12 of the CVC. All lien transactions mult be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670;22851',22851.1',228512',22e5j.3., 22851 .4; 22851.6; 22851.8; 22851 .10, 22851 .12 and 22852 5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle -'15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City The exception would be evidentiary impounds made at the direction of City personnel 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receíve the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting flrm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15' of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchtse fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentrary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs 17- . Charg¡ng rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints . Any Felony/Misdemeanor arrest. Refusal to take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard ¡ Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operatorwith disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMCsectionsl-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver/ Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, deblt card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. - 19 - CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Econo Towing, a sole proprietorship (the Tow Operator). all attachments, contains rules and regulations that a tow company agrees to comply in the tow operations of the City of Fresno Police Department (FPD). Participation in gram (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services unðer thié Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fres lo, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respeót to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties, and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract theperformance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proorietarv lnfrinqement Unless otheruvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancéstry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknówledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may termlnate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expression of certain remedies in this Agreement dóes not preclude resort by either party to any other remedies provided by law. 10. Independent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Ñeit-her Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' ðompensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnis-hed by Tow Operator under this Agreement. Tow Operator shall: perform all work diligenfly, carefully, and in a goo'd and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies nãcessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performancè of the work; and, ifpermitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but no¡imited top any time and property damage) incurred by City, Tow Operator, or anyo any and all claims, demands and actions in law or equity (includinga on expenses), arising or alleged to have arisen directly or indirectly out ofp ement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance , with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following poficies of insurance are required: 2 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury and property damage. 4) ON-HOOKCARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: Class A/B tow truck. ....... $120,000 Class C tow truck $200,000 Class D tow truck... ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each emptoyee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of covérage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, a) b) c) 5) B) c) D) J employees and author¡zed volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its of¡cer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleés and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement Tow Operator shall pay the City Franchise Fees as listed in Attachment "B", or "City Administrative / Franchise Fees", in accordance with Parag raph 25 of Attachment "A". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which coufd be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under faw. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail: or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. i) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be fonvarded to the Chief of Police or his/her designee Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision.2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shalf be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Asreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othenruise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR: rite: ?w il 6tL Date: ¡ A-?-/,1 TOW OPERATOR*: Bv:Title: Print Name:Date. *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. In the alternatíve, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: DOUGLAS T. SLOAN City ATTEST: YVONNE SPENCE, CMC City Clerk Date:By @anúr 14.CoU* Date: CITY OF FRESNO. 8 r z/zz/ t y ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at ñignt All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dáys per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22BSO.3 and 22651 07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a m. to g:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. esponse. Each non-response will be immediately e logged by the DTS System and reviewed by the than the Tow Operator, the Tow Operator will be portunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City A second breach may be grounds fora (30) thirty-day suspension of this Agreement. A third violation will be considered a material brðach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator ble to provide services due to preplanned/scheduled activity, such as a vacation, m etc., the Tow Operator will notify City in writing via the DTS system at least forty-e City reserves the right to deny these requesls to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _10_ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided All tow yards located with the City of Fresno shall be in compliance with the,FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Gitv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment tf in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, 'or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.l et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwíthstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement. . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting . Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moral turpitude . Sex, Arson, Narcotics Registrant . Other felony conviction The City rs not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seg, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. '14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Reouirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othen¡vise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670;22851;22851.1',22851.2',22851.3', 22851.4', 22851.6: 22851.8, 22851 10, 22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response 22. Gate Fees No gate fees may be charged between 8.00 a.m through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presídents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees ) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator wilf be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City andior City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every^City vehicle that was towed during the preceding month and will pay the City no laterthan 12,90 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who failto submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result ln the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Pofice, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbalabuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft o Mishandling of vehicles stored as evidence. Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff o Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotationaltow. Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chlef of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToWFlatbed $ 184 00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Traifers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450 00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and EdNic Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. Patent/CopvriqhtMaterials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 el seq of the California Labor Code 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of afl documentation and other goods/services furnished by Tow Operator under this Agreement Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury"with coverage for premises and operations, products and completed operatioñs, 'anO contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than 91,000,000 per occurrence for bodily injury anð property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,00ó aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of noiless than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LlABlLlry insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury andproperty damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck.. ...... ...$120,000b) Class C tow truck... $200,000c) Class D tow truck... ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any selÊ insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificateof lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, orhis/her designee, guaranteeing payment of losses and related investigations, - claim administration and defense expenses At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favorof City of policy cancellation, change or reduction of covérâge, except for the Workers'Compensation policy which shall provide ten ('10) calendar days writtãn notice of such cancellation, change or reduction of coverage. ln the event any policies are due toexpire during the term of this Agreement, Tow Operator shall provide a new'certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her desígnee, ãnd the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written oßan occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so-Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers'Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirecily by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified bytheunderuvritertobeatrueandcorrectcopyoftheoriginal policy. Thisrequirementshallsurvive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms oÍ each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleés and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or controf will be given by the Chief of police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possesð and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension ortermination This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless othenvíse provided for in this Agreement Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "A" 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provísion of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legalaction to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing thís Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decisíon that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards. Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or(2)upon delivery bythe United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a fìnal decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter tíme that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Title: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. CITY OF FRESNO. A municipal By: APPROVED AS TO FORM DOUGLAS Ï. SLOAN City Date: rúr\dÒll H'Col(ef ATTEST: WONNE SPENCE, CMC City Clerk Date: tzfzzlt+ By 8 sTâ:3Ë"15f^ 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violaiion of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding tñe flowof traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by ìaw, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact theTow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain witñ tne special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operat¡on with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dãys per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours aday, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a m. and 4:00 p m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outiide storage A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business offlce will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation oi the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcily to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Opeiator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). L Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting This ínside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS progiam in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of tfie OtS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program 11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assígnment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehícle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC sectionl808 1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five(5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed anð approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be aliowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprintingo Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to ihe Chief of Police or hls/her designee. All decisions by the Chief of Police, or his/her designee are final ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator maybe given the opportunity to replace that employee without prejudice to the Agreement. Nothing shail prohibit the City from removing, suspending or terminating the Agreement, lt will be the responsiOitity otthe Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conúiction oi plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions Failure toprovide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City isinvolved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be ialled. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tów Operator who have been fingerprinted by the City and have passed the record check by the Department of Jústice. All identification badges are the property of the City and will be returned by the Tow Operator to the Citywithin forty-eight (aB) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the TowOperat ired herein shall be open to inspection by the City or itsauthori less than one annual inspection. Additional-inspections may be con s hours. lnspections may include, but are not limited to, allbooks, eccrds, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpole oi auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the reqúirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 252s3,25300, 27700 and 27907 of theCVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shail have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services'with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum offifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason theTow Operator is unable to complete the tow service request with the wrecker, the Tow Operatoi will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must havé visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year 16. Vehicleldentification Tow vehicles shall display identificatíon signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storagä fees wiil be calculated on the calendar day except the first 24-hours which is counted as a single dãy in accoúance with California CivilCode (CCC) 3068.1 (seeAttachment B). Allfees listed on the DTS ¡nvóicewill be received in theform of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must beinvoiced through the DTS system prior to release and at the time of payment. No credit card fees will becharged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached toany vehicle that has been impounded by the Cíty until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions mu-st beentered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to liensales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such tirie as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirtyJifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimedvehicles, including but not necessarily limited to CVC sections 22670;22851,228'51.ti ZZAS|.2;22851.3., 22851.4; 22851.6', 22851.8', 22851 .10, 22851.12 and 22852.5 As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would no[ be needed as evidence ina legal action This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service CallRotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day ïhanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees ) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All ve'h¡cles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release bythe Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for everY_,pity vehicle that was towed during the preceding month and'will pay the City no laterthan 12:00 p.m. on the 15'n of the following month, regardless of the dispósition of tfre ven¡cte. ln the event that the 15"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the followinq business dav. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15ft day of each monthwill be immediately suspended from rotation until all fees are received, anO wilt be subjeci to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these feeé through in"'OfSSystem and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized releas e, accidental or otheruvise, having evidentiary value, not of¡cially released by the City e fault of the Tow Operator, will result in the issuance of a major violation as set forth termination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded_with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of animpounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representat¡ve, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicatìng that they are properly licensed and insured to drive a motor rehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine theperiod of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and condit¡ons of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of thisAgreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief ofPolice, or his/her designee, reserves the right to impose longer periods of suspénsions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reservesthe right to remove a Tow Operator from the tow rotation during the investigation of a mapr violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fðe. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln adàition, amajor violation may also result in the Tow Operator's employee being removed from [articipation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcemento Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17- . Charging rates that exceed those listed in Attachment B. Vehicle released without authorizationo Unauthorized access to storage yard. Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusalto take a rotational tow. Failure to utilize the DTS system for all city towing related matters. Repeated late or nonpayment of City franchise feeso Failure to properly secure storage yard. Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. Thesecond violation will be in the form of a documented reprimanded and a one hundred dollar (g100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and thó TowOperator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in afive hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement iee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: o Late payment of City franchise fees. Tow truck drivers not wearing city issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (4S) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of police or his/herdesignee. Unauthorizedride-a-longo Failure to respond to customers' needs¡ Failure to maintain proper equipmento Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order,citation, decision or determination to have standing to appeal a decision by the Chiei of police or his/herdesignee. An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing withinfifteán (15) calendar äays Oysubmitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. suspension for thirty (30) days or est a hearing within fifteen (15) s/her designee, through the Tow of the Chief of police, or his/her rotational tows until the final disposition of the appellate hearing. ln the event FPD serves amounting to a suspension in excess of thirty (30) days, or termination of t est a hearing within fifteen (1S) calendar OaVd Oúsubmitting an appeal in Officer by way of the City t\ianager's Office. Thewritten appeal shall be :MC sections 1407 and 9-1712. Notwiihstandñrg any provision within Chapter '1, Article 4 of the FMC, any person who appeals a suspension in excess of tn¡rti(gOi dãys, or atermination of the TSA shall not be entitled to placement on the Tow Rotation List or to participaie ¡n tows unt¡lsuch time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that nogrounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. TowOperator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Appty Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaoe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (S0%) of theflat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal pioperty recovery that occur outside normal business hours (excludirg lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $1 16.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 Atl fees tisted on the DTS invoice will be received in the form of major credit card, debit card orcasfi. Nocredit card fee will be charged pursuant to CVC section 22651.1 and CCC section 174A.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Fortney Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. ',. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on erther of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv lnfrinqement Unless otheruvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to termrnate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall. perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its offìcers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. Insurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... $120,000b) Class C tow truck.. ... $200,000c) Class D tow truck.. ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: f ) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten ('10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underuvriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so aüach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-f01(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenvise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless othen¡vise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4" 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless othenvise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othen¡vise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best rnterest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given ('1)upon actualdelivery, if delivery is by hand; or(2) upon delivery bythe United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees ol others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall rnclude with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othenvise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Title:Bv Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date. Date: ATTEST: YVONNE SPENCE, CMC City Clerk By:: Date: DOUGLAS T. SLOAN I tz/zz)t + s'JåsäË"ilJS. 1. Scope of Work Tow Operator shall pefform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate terminatton of this Agreement 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contarn the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duratron of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operatron. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law All special operations tows will be subject to the provisions of this Agreement Tow Operator shall respond to a I special operat¡on with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours aday, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator iô so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator wrll be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _10_ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Offìcial notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5.00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenivise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limited to: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehrcle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290 ¡ DU|-Within 5 years of the Date of Fingerprinting . Vehicle theft. Fraud. Stolen Property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance . Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moralturpitude . Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will Brovide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 1211 1, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othenvise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651 07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068 I (see Attachment B). All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670:22851,22851.1,228512,22851.3', 2285 1 .4, 22851 .6', 22851 .8; 2285 1 . 1 0, 2285 1 . 1 2 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notifìed in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Gall Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehlcle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the l5th of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenryise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otheruvise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement o Resisting arrest . Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charglng rates that exceed those listed in Attachment B¡ Vehicle released without authorization . Unauthorized access to storage yard r Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusal to take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard ¡ Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipmento Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -'18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToMFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 AII fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. JVo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered rnto effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Fresno Budget Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by ïow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. Patent/Gopvriqht Materials/Proprietarv Infringement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or'copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreementwithout penalty immediately with cause and either party may terminate aftei tnlrty (30) days writtðn noticewithout cause, unless othenrvise specified. Cause shall be defined as any breach oi ttr¡s Agreement or anymisrepresentation or fraud on the part of the Tow operator. Exercise by city of its right to terminate theAgreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver orconsent shall be in writing and signed by the party claimed to have waived or consented. Any consent by anyparty to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiverof, or excuse for any other different or subsequent brear h. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expression of certain remedies in this Agreement dóes notpreclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees noranyone working under Tow Operator shall be considered an agent or an employee of City Ñeit'her TowOperator, its employees nor anyone working under Tow Operator, shall qualify for workers' óomp"ns"tion orother fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautíons to performthe work to City's satisfaction. Tow Operator shall be responsible for ihe professional quality, technicalassurance, timely completion, and coordination of all do Operator under this Agreement. Tow Operator shall: workman-like manner; furnish all labor, supervision, m therefore; at its sole expense obtain and maintain a including those of City required in its governmental cap permitted to subcontract, be fully responsible for all wor 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officiats, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeítures, costs and damages (whether in contract, tort or strict liability, including but not'limìted topersonal injury, death at any time and pro other person, and from any and all clai attorney's fees and litigation expenses), ari performance of this Agreement. Tow Op apply regardless of whether City or any of volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs ordamages caused solely by the gross negligence, or caused by the willful misconduct, of City or anyof its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under thisAgreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defendCity and each of its officers, officials, employees, agents and authorizád volunteers in accordancewith the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force andeffect all policies of der with an insurance company(ies) either (i) admittedby the California ln do business in the State'of California anà rated notless than "A-Vf l" in Guide, or (ii) authorized by City's Risk Manager Thefollowing policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury"with coverage for premises and operations, products and completed operatioñs, -anO contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 peroccurrence for bodily injury anã property damage, $1,000,000 per occurrence for personal and advertising injury-anO $Z,OOO,OOó aggregate for products and completed operations and $2 000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of noiless than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned hired, and non-owned automobiles ór other licensed vehicles (Code l- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury andproperty damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) ClassA/Btowtruck.... .......$120,000b) Class C tow truck. ... .. . .. $200,000c) Class D tow truck. $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $i,000,000disease policy limit and $1,000,000 disease each emptoyee. Tow Operator shall be responsible for payment of any deductibles contained in any insurancepolicies required hereunder and Tow Operator shall also be responsible for payment of any selt insured retentions. Any deductibles or self-insured retentions must be declareó tó on the Certificateof lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or elim¡nate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, orhis/her designee, guaranteeing payment of losses and related investigations, - claim administration and defense expenses. At no time shall City be responsible for ihe payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of covérâge, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due toexpire during the term of this Agreement, Tow Operator shall provide a new certificate and allapplicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division Uponissuance by the insurer, broker, or agent of a notice of cancellation, ðhange or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, ánd the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liabilíty insurance policies shall be written on an occurrence form and shall name City, its officeis, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be ãndorsed so TowOperator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) J employees and author¡zed volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's executlon of the Agreement.' E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of thisAgreement. City shall apply to all claims and liability regardless of whether any-insurance policies are applicable. The policy limits do not act as a limitation upon the amount of iñdemnification to beprovided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in noway relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents,employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed direcfly or indiiecfly by any of them. F) Upon furnish City with a complete copy of anyinsura g all endorsements, with'said copy'certified by the iginal policy. This requirement sÉáll survive expira G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain therequired insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insuiance has been restored to fullforce and effect and that the premiums therefore have been paid for a period satisfactory to City.Any failure to maintain the required insurance shall be sufficient cause for City to terminate thisAgreement. H) ct all or any portion of the work to be performed, Tow Operator to provide insurance protection in favor of the City, its officer, uthorized volunteers in accordance with the terms of each of thepreceding paragraphs, except that the subcontractors certificates and endorsements shall be on filewith the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance ofthe work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any doesso attach, Tow Operator shall promptly procure its release and indemnify, defend, aná f'o¡O City harmleés andbe responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined inFresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of pôlice, or his/herdesignee, this Agreement. This incjudes but is not limited to changes in:Corporate Treasurer, Trustees, or ownership interests. All chanles ortransfers t d by the Chief of Police, or his/her designee, prior to" suchchange or to remain on the tow services list. Finaliritten approval ordisapproval for the change or transfer in ownership or control will be given by the chief of police'or his/herdesignee. All "immediate family" members involved in the potential tranéfer and operation of the fow Opáiãtorshall be required to undergo a background check, review, and "Livescan" fingerprint screening. The ,,immediate family" members involved in the change or transfer of ownership or control musi also possesé and keep currentall licensing certificates and insurance as required in this Agreement. The "immediate family" members who willoperate or othenvise be legally responsible for the Tow operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related busiñess of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is stricfly prohibited. B) lf terminated or suspended, Tow Operator andlor its owner at the time of the suspension ortermination, stlall not be eligible for a rotation listing for the duration of the suspension ortermination. This section applies to the Tow Operator working in any capacity withìn any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees 18. Compliance with Laws Tow Operator represents and warrants that services to be provìded under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", ìn accordance with Parag raph 25 of Attachment "A". 20. Terms and Gonditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless othenryise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorízed and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under thiã Agreemenl meei the citizenship or alien status requirement set forth in Federal statutes and regulations Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmþration nèform andControlActof 1986,8U.S.C Sl324etseq.,astheycurrentlyexistandastheymaybehereãfteramended Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the lawTow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed agãinst Tow Operator or City or both in connection with any alleged violation of any Federai or State statuiês or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and ConditionsA) Term of Agreement: This Agreement shall commence on December 28, 20j4, and shall be effective for three (3) years from that date, unless othen¡vise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. li such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf suðh funding and/or appropriations are not forthcoming, or are othen¡vise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator;s efforts shall include, butnot be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shallpromptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. Tlíis is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and thai all requirements of Tow Operator have been fulfilled to provide such actual authority 6 28. H) Notices. Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remaiñ the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to suppty services and/or commodities requested, as needed by City, at prices listed in the Agreemeni, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received Oy iity. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all booksl accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operatorfoithe purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection anOlor audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement City reserves thé right to audit anî verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this ngreàmént or by law. Tow Operator agrees to allow interviews of any employees or others who mighireasonably have information related to such records. Further, Tow Operator agrees to include a similar right tó City to audit records and interview staff of any sub-Tow Operator related to performance of th¡s Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the chief of police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any drspute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made ingood faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreemeni. Tow ıperato/s failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Oþerator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator comr"nces action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provrsrons, covenants or conditions of this Agreement shall be a material breach of this Agreement ln such eventthe City may, and in addition to any otheriemedies available at law, in equity, or othenruise specified in this Agreement, undertake any of the individual actions or any combination of the following actions. 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shofter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the ãlternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of i-hesignature to bind the company. CITY OF FRESNO, A municipal By By: APPROVED DOUGLAS T TO FORM SLOAN City ATTEST: WONNE SPENCE, CMC City Clerk Date: Date: Dare. tz/zzftU The Parties hereto have executed this Agreement I ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, suchother services as provided in this Scope of Work, and shall provide necessary storage facility, tow veh¡cles,labor, materials equipment, machinery, and tools. The Tow Operator shall óomply witn alt 'State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations ai to their use and care of alltowing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violaiion of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flowof traffic, or which for any other reason, are within the jurisdiction of the FpD. As required by iaw, Tow Operators are to remove from the street all debris resulting from said collisions and to clean ihe immediate areaof such street (CVC section 27700(a)(1)\ lt shall also be the duty to provide for the safety and security of thosevehicles and the contents thereof. These duties are inherent to the job and are to be inclúded in the piice of the basic tow bill The tow truck operator shall provide a business card to the registered owner or driver for the vehicle beingtowed. The business card shall contain the name, address and phone number of the tow company as well asthe link to the vehicle search system in DTS as follows: .findmytow.com Tow truck operators andior drivers will not be permitted to drive an impounded or recovered stolen vehicle orvehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to reposiiioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non-preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence,the tow driver must immediately notify the officer on scene that the company is not authorized to handleevidence impounds and an evidence tow company shall be dispatched Tow Operator shall then contact theTow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This provision applies to theTow Operator working in any capacity within any tow business or operating any tow business and'to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List,excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FpD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain witñ tne special operation until its conclusion and forfeit any rotational tow calls (FPD, California Hignway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law, All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7;00 a m. to g:00 a m. and 4:00 p.m. to 6:00 p.m , (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement ln the case of suspension or termination, all vehicles then in storage at the tlme of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required ior'outsidestorage A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functiónal, clean and orderlyfashion The facility shall have a telephone, on-site fax machine and the necessary computer equipment toproperly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation oi the entireyard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direc¡y to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle-, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal-propeñy from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Opeiator willmaintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraOañ6, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than '1,000 square feet of clean working space The facility must be constructed to inc-lude aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather The facility should have a concrete floor and sufficient lighting. This inside facility must be located atthe Tow Operator's primary storage yard This inside facility is not required to qualify foi tne City's rotation however, when inside storage is requested for a particular vehicle, the next Tow Opeiator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Opeiator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shallcause the immediate removal of the Tow Operator from the tow rotation and bè grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of tne OIS software program. This Agreement shall not be execut, d by the City until Tow Operator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTb are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operai-or will be removed from ln the event that DTS fails to provide software services, or the City electsto utilize a ne e Tow Operator will be required to use the replacement towing sbft*aresystem. lf tha to DTS in this Agreement shall instead be interpreted as refereñces to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day 12. Tow Operator Personnel A ) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or ãny employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damagã the vehicle for which the tow service was called Other examples of unacceptable behavior include but ãre not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City Facial tattoos of any vartety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Adminístration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804 9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E ) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement. . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432 3 - 13 - . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or hisiher designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G ) ldentification Badges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver wifl be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as req uired in CVC sections: 34507.5, 34600 et seq, 34620, and 1211 1 , and sections 7231 eI seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection Additional inspections may be conducted without notice during normal business hours lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations Winches must havé visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be availabÈ for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). All fees listed on the DTS invoice witl be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shafl the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage aslistedintheDTSsystemhavepassedpursuanttosection22Ssl.l2oftheCVC. All lientransactionsmultbe entered into the DTS system by Tow Operator Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (3S'") day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670,22851;22851 1,22851.2:22851.3., 22851 .4', 22851 .6, 22851 .8; 22851 .10 , 22851 .12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence ina legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust raies set forth in Attachment B by the first week of January of the following year 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out ofgas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (S0%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees areìharged in accordance with this section. Over charging gate fees will be considered a major violation as ouflined in Seition 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel 23. Gancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln ¿ddition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees Californía law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -'16- City resolutions These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 228505 and 12110(b) All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12;00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicÈ. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12.00 p.m. on the followinq business dav. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the '1Sh day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impoundgd vehicle, it is the Tow Operator's responsibility for the vehicle's release The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicatìng that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement The Chief of Police, or his/her designee, reseryes the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation A reinstatement from suspension for a major violation will result in a five hundred dollar (9500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17- . Charg¡ng rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call o Failure to provide information or change of status on any Tow Operator employee or staff o Substantiated private pafty impound complaints . Any Felony/Misdemeanor arrest. Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees o Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant s standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anythlng less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMCsections 1-407 and 9-1712 Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply f Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: i DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storage Rates. Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8.00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 AII fees lísted on the DTS invoice will be received in the form of major credit card, debit card or cash. tVo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- C¡TY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below at Fresno, California, between the City of Fresno, a municipal corporation (City) and Frontier Auto, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD) Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Gontractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otheruvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Ooerator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirec¡y out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class AJB tow truck. .........$120,000 b) Class C tow truck.. ... ... ... $200,000c) Class D tow truck... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provrde a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, offìcers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fìngerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownershrp. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legalexpenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophistícated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654)or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otheruvise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City lf such funding and/or appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given ('1)upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under thrs Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information relate<j to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. 28. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - B) c) demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR: TOW OPERATOR*: Bv:Title' Print Name: lgZtS ?-¿n22 Print Name:Date' *lf a corporation or limited liability company, the document must be signed by two corporate officers The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: ty',<l '( Date: ATTEST: WONNE SPENCE, CMC City Clerk By:. Date: APPROVED AS TO FORM DOUGLAS T. SL 8 tz/zz//y gJåsäPüJ$. 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 228503 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours aday, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to g:00 a m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System, Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension ortermination, allvehicles then in storage atthe time of the suspension ortermination remain protected under this Agreement as'City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc , the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). L Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufflcient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Gitv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenruise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto. profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or seryice operation begins No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500 12520, and'12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City pnor to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) CriminalRecord A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290 . DU|-Within 5 years of the Date of Fingerprinting . Vehicle theft. Fraud. Stolen Property . Crimes of Violence . Any felony crime relating to narcotics or any controlled substance . Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 eT. seq, of the California Revenue and Taxation code. Failure to have any required license or certlfication, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above At the discretion of the tow operator, a wrecker may be used to respond to a tow service request lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dof lies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year 16. Vehicle ldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651 1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lren sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'") day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851.1',228512:22851.3, 2285 1 .4; 2285 1 .6, 2285 1 .8', 2285 1 . 1 0, 2285 1 . 1 2 and 22852. 5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. .1 E- tJ - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc. ) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative i franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no laterthan l2:00 p.m. on the 15'n of the following month, regardless of the disposrtion of the vehicle. ln the event that the '1 Stn of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othen¡vise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorrzes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or hrs/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shaf I retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement . Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17- . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard. Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusal to take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard. Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar (g100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long¡ Failure to respond to customers' needs. Failure to maintain proper equipment. Failure to clean up at a collision scener Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD seryes Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (f5) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the TowUnit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and g-1712. Notwithstanding any provision within Chapter 1, Article4 of the FMC, any person who appeals a suspension in excess of thirty (30)days, ora termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees. Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $1 16.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC secúion 22651.1 and CCC sect¡on 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Herndon Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Agreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contracting The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators 12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liabillty, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) ïhroughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California fnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $,l,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL L|ABlLlry insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 0O 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOK/CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) ClassA/Btowtruck. .....$120,000b) Class C tow truck.. . ... $200,000c) Class D tow truck ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Rísk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and author¡zed volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate thrs Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. '14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow termination, shall not be eligible termination This section applies Operator and/or its owner at the time of the suspension or for a rotation listing for the duration of the suspension or to the Tow Operator working in any capacity within any tow -4- business or operating any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "A". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shail remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, 8 U.S C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DïS). l) Data - Title to: All materials, dôcuments, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement J) Usage: No guarantee rs given by City to Tow Operator regarding usage of this Agreement Usage fìgures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3)years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the fínal resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend andlor remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty The Parties hereto have executed this Agreement. TOW OPERATOR: á.'rl TOW OPERATOR*: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. By APPROVED AS TO FORM DOUGLAS T. SLOAN City Atto r¿¡r.4ôx I\, ¿ott ATTEST: YVONNE SPENCE, CMC City Clerk By:: Date: Date: CITY OF FRESNO, A municipal 8 tz/zz/ t+ ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD 4. Siqnage and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time Iimits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to g:00 a.m. and 4:00 p.m. to 6:00 p m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System Each non-response will be logged by the DTS System and reviewed by the City lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a matenal breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow.Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _ 10 _ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenivise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s) 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "-f ow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reoardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p m (PST) on the next business day 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenivise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotâtion. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804 9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California PenalCode section 290o DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance . Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant . Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 3'1, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (a8) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5, 34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the abílity to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othenvise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25{on truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles These rates shall quote complete charges and fees with no additional fees to be added at a later date These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B) Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.'12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670,22851',22851.1;22851.2,22851.3, 22851 .4', 22851 .6: 22851 .8: 22851 .1 0, 22851 .12 and 22852.5. As described in CVC sect¡on 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. ïhis proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service CallRotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accountrng of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or hisiher designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Majorviolations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to. . Physical assault, against public and/or law enforcement . Verbal abuse against public and/or law enforcement ¡ Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization . Unauthorized access to storage yard . Theft. Mishandling of vehicles stored as evidence. Unauthorized driver responding to call ¡ Failure to provide information or change of status on any Tow Operator employee or staffo Substantiated private party impound complaints . Any Felony/Misdemeanor arrest. Refusalto take a rotational towo Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees ¡ Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to. . Late payment of City franchise fees. Tow truck drivers not wearing City issued I D. cards/ proper uniform. Unauthorizedarrival time in excess of thirty (30)minutes, orforty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operatorwith disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sectionsl-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaoe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hou rs gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Johnson Bros Tow, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services unðer thii Agreement. 1. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respeót to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by C.ity in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Gontractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement 5. PatenUCopvriqhtMaterials/Proprietarvlnfrinqement Unless otherwise expressly provided ín this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City Indemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. L Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore, at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. '12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 0O 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operatioñs, -anO contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury anð property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $'1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck. ... .. . .. $120,000b) Class C tow truck... ....$200,000c) Class D tow truck.. .. ... .. ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, otficials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of covérage, except for the Workers'Compensation policy which shall provide ten (10) calendar days writtên notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, offìcials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow operator shall have furnished city with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement.' E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish theliability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any'insurance policies are applicable. The policy limits do not act as a limitation upon the amount of iñdemnification to beprovided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in noway relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents,employees, persons under the supervision of Tow Operator, vendors, suppliers, invjtees, consultants, sub-consultants, subcontractors, cr anyone employed direcfly or indiiec¡y by any oi them. F) Upon furnish City with a complete copy of anyinsura g all endorsements, with said copy certified by the igínal policy. This requirement shåll survive expira G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain therequired insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insuiance has been restored to fullforce and effect and that the premiums therefore have been paid for a period satisfactory io City.Any failure to maintain the required insurance shall be sufficient cause for City to terminate thisAgreement. H) ct all or any portion of the work to be performed, Tow Operator to provide insurance protection in favor of the city, its officer, uthorized volunteers in accordance with the terms of each of the the subcontractors certificates and endorsements shall be on filewith the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance ofthe work. Tow Operator shall not permit any lien or charge to attach to the wori or the premises, but if any doesso attach, Tow Operator shall promptly procure its release and indemnify, defend, aná f,olO City harmleés andbe responsible for payment of all costs, damages, penalties and expenses related to or arising from or relatedthereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined inFresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of pôl¡ce, or his/herdesignee, this Agreement. This includós but is not limited to changes in:Corporate Treasurer, Trustees, or ownership interests. All chanies ortransfers t d by the Chief of Police, or his/her designee, prior to- suchchange or to remain on the tow services list. Final-written "pprou"i o¡.disapproval for the change or transfer in ownership or control will be given by the chief of police'or his/herdesignee. All "immediate family" members involved in the potential tranéfer and operation of the fow Opeiãtorshall be required to undergo a background check, review, and "Livescan" fingerprint screening. The ,,immediate family" members involved in the change or transfer of ownership or control musi also possesé and keep currentall licensing certificates and insurance as required in this Agreement. The "immediate family" members who willoperate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related busiñess of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is stricfly prohibited. B) ff terminated or suspended, Tow Operator and/or its owner at the time of the suspension ortermination, slall not be eligible for a rotation listing for the duration of the suspension ortermination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. '17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the termof this Agreement. All such records and information shall be considered confidential anâ kept confiãential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectiveÍy Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violatio I of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unlessotherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as lìsted in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment ,,A,'. 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otheruvise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that ñas 5 drafted it is not applicable and is waived The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligatíon of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmþration Rãtorm and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereáfter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 20j4, and shall be effective for three (3) years from that date, unless othenvise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. li such appropriatìons are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf suðh funding and/or appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of Interest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, butnot be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City D) Tow Operator Work Hours and Safety Standards. Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other ireld by each for purposes of execution of the Agreement. ln addition, each party will assist the other party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and thai all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or(2) upon delivery by the United States mait if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS) l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after flnal payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision.2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other iemedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten cafendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. TOW OPERATOR*: Bv:Title: The Parties hereto have executed this Agreement. rile: OØftat¿ Print Name.Date: "lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. In the álternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of i-hesignature to bind the company. CITY OF FRESNO. ATTEST: WONNE SPENCE, CMC City Clerk Date: Date: By:: Date: AS ÏO FORM DOUGLAS T. SLOAN I r z/zzf tt ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, suchother services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles,labor, materials, equipment, machinery, and tools. The Tow operator shall comply rual¡tn all -State laws andregulations, appf icable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommenda[ions as to their use and cáre of alltowing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violaiion ofthis section will be considered a material breach of the Agreement and may result in immediate tórmination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehiclesy by the City. hicles disabted by any other places or on Vehic nce, impeding tñe flow other reason jurisd required by ìaw, Tow m the street a from an the immediate area27700(a)(1)). e the duty to provide for the safety and security of thosevehicles and the contents thereof. These duties are inherent to the job and are to be inclúded in the piice of the basic tow bill The tow truck operator shall provide a business card to the registered owner or driver for the vehicle beingtowed. The business card shall contain the name, address and phone number of the tow company as well asthe link to the vehicle search system in DTS as follows: www findmytow com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle orvehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at thedirection of the FPD officer in charge of the scene and should be limited to reposiiioning ine vehicle to allow for towing. The City has designated two (2) tqw companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non-preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence,the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact theTow Unit on the same business day, or within the next business day if such tow occurs after regular businesshours Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator andlor owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to theTow Operator working in any capacity within any tow business or operating any tow business and'to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List,excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FpD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires towcompanies at the location of the special operation. Tow companies on the Tow Rotation tist tnat are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain w¡tñ tnespecial operation until its conclusion and forfeit any rotational tow calls (FPD, California Hignway patrol, orother) received during the duration of the operation. "Good standing" shall mean that Tow Operãtor has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law.All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowedon any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing serviceThe sign shall have letters that are clearly visible to the public from the street and must be visible at -nignt. Rttstorage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dãys perweek. The Tow Operator will provide customer service twenty-four (24) hours per day and seven iz) Oals p"¡. week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30)minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and226'51.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time isthirty (30) minutes or less, except during peak hours of 7:00 a.m. to g:00 a.m. and 4:00 p.m. to 6:00 p.m.,(Monday through Friday), when the required response time will be extended to forty-five (a5) minutes or less.Tow Operator shall respond with a tow truck of the class required to tow the veñicle sþeóiiieO by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the TowOperator is either unable to respond or unable to meet the maximum response time, the tow operator shallimmediately update the DTS System accordingly lf, after accepting the call, the Tow Operator is unable torespond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. will be n-response. Each non-response will be immediatelyEach r be rogged by the DTS System and reviewed by theonse is er than the Tow Operator, the Tow Operator wilt Oe nd calle portunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach ¡1ay 'be grounds fora (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of theAgreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator ble to provide services due to preplanned/scheduled activity,such as a vacation, m etc., the Tow Operator will notify bity in writing via the DTSsystem at least forty-e City reserves the right to deny these requesis to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and amaterial breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and allpersonal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such storedvehicles, accessories, equipment, and property against all loss or damage by fire, theit or other causes. TheTow Operator will have available for review by City personnel, all permits and proof of compliance to all localzoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of theTow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined aswithin the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _10_ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured ärea is required ior outsidestorage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be providéd. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #20g and shallfollow the current Development and Resource Management Department's Policy and procedure C-002. lf thetow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction custody, and control of any property contained in tow office will be located at the primary storage yard an fashion. The facility shall have a telephone, on-site properly run DTS software and to send and receive em ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes. These measures could include, but are not limited to: the yard beingilluminated during darkness, with security type lighting, to such a degree that visual observation oi the entireyard may be accomplished at all times, improved fencing and/or securiiy patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcfly to a towingservice storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of tne ven¡cle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the Ci business unless directed othenvise by the City's Tow C will be considered a breach of this Agreement. The T stored vehicle. lf the registered owner removes person maintain documentation of such and will require a released. The Tow Operator shall immediately noti materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located atthe Tow Operator's primary storage yard. This inside facility is not required to qualify tor tne City's rotation,however, when inside storage is requested for a particular vehicle, the next Tow'Opeiator in line meeting theneeds of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track,via a web-based lnternet connection. Tow Operators will be required to enter the tıwed vehicle information asinstructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without allrequired data fiel he Tow Opeiator shall clearlyidentify and ente ctually released. A¡ City towrequests shall be progiam in full operation shallcause the imme d bè grounds for immediatetermination by C separate agreement, or license for the DTS softwareprogram with the owner of that proprietary software. The City shall not provide the DTS software program, anylicensing or sub-licen_sing thereof or any intermediary services for the procurement by Tow Operator oi tn"'OtSsoftware program. This Agreement shall not be execut d by the City until Tow Opérator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for allfees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in .real time" and allentries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant tosection 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTb are thosetf at hq,ve fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operaior will beremoved from the City towing rotation. ln the event that DTS fails to provide software seruices, or the City electsto utilize a new software provider, the Tow^Operator will be required to use the replacement towing softwaresystem. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as refereñces to thenew software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions ornotifications received from an authorized City employee or electronic notice from the DTS program. lf the TowOperator receives verbal instructions or notifications from a City employee the Tow Operaior must respond toCity, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services req obtain and keep the confidence of the public. employee of the Tow Operator exhibit any of uncooperative, argumentative, threatening, inco employee, or with any member of the public assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner The City aléo reserves the right t,o cancelan individual tow assignment if in the opinion of the City the Tow Operator is tikely to damagã the vehicle for which the tow service was called. Other examples of unacceptable behavior ¡nôtuOe but ãre not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow,threatening, aggressive, or assertive language, failure to provide timely information oidocuments ¡nresponse to a public or City inquiry, Jack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of thepublic, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release ofvehicle during eveníng or weekend hours, impeding an investigation or any othei conduct which the Citydeems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be conåidereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform Eachuniform shall have the firm's name, as well as the employee's name, in a conspicuouj place. The towcompany's name and driver's first name shall be clearly visible at all times, meaning thåt protective orinclement weather outer garments must meet this standard. Each employee shall have sufficient uniformsso as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include ashirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or serviceoperation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to ihe public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working Personnel will be required toconceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost gárment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the Ciiy deems ihe involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck ai provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited toinvolvement with any other company or business that might result in income or consideration as a result ofany activity initiated by the City An example of such a prohibited involvement could include but is not limited to: financial reimbursement pair business for referrals, or towing directly from the scene of a collision to the auto-bodyior unsolicited approval or request by the registered owner, driver or insurance "orp"nyof the damaged vehicle; kickback to or from a security company or homeowner'i"fÌnding" or towing a vehicle from a location, whether privãte property, public, off streetparking facility or a public roadway Violation of this provision shall be grounds'foi immediate terminationby City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and otheroffice personnel, will have sufficient knowledge, experience and capability to ensure safe and properdischarge of their service responsibilities. lt will be the responsibility oi the Tôw Operator to ensure that allof its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.g of theCVC' Alltow truck drivers and tow truck operators shall be enrolled in the "pull Notice;' program as definedin CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operatoi Cıurse every ¡ve(5) years and copies of completion of the course shall be sent to the City. All Tow Operators andpersonnel shall have no criminal record which would preclude them from being þlaced in a position of trustwhile in the service of a law enforcement agency or any crime listed Uelow un-Oär the heading of ,,Criminal Record." E.) Fingerprints All. owners and employees who have not previously submitted their "Livescan" fingerprint samples shallsubmit their "LiveScan" fingerprint samples, at their own expense, through the City frior to being awardedthis Agreement, for the purposes of verifying their criminal lristory with thé Department of Justice. Failure to provide ínformation regarding the identity of the owner, employee, or anyone else with afinancial ill result in termination of this Rgieement. The Íow Operator willprovide t ng any change in employee status immediately and update DTSto reflect ly may result in further disciplinary action, and will be considereda breach After execution of this Agreement, no person shall be employed by the Tow Operator or perform anyservice under this Agreement until the background record ôfrect< and "LiveSian" is completed anáapproved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" cheók will be aliowed tocontinue to tow for the City until such time as the results of the background and "LiveScan" submissionsare reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned andbeen rehired must complete an additional background check before performing services pursuant to thisAgreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator,including but not limited to any of the following offenses, may be cause tor'deniat of applicåtion ortermination of this Agreement: . Any crimes listed in California penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen property o Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to ifie Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator maybe given the opportunity to replace that employee without prejudice to the Agreement. Nothing shailprohibit the City from removing, suspending or termir eement. lt wili be the responsiıitity otthe Tow Operator to provide the City wi arding any illegal activity, arrest(s) or conviction of any Tow Operator and/or e of this section, any conúiction oi plea of guilty or nolo contendre, even to any re considered convictions. Failure toprovide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City isinvolved. lf a tow truck driver responds to a scene without his authorized name badge, the tow tiuck driver will be dismissed from the scene and the next Tow Operator in rotation will be óalled. Failure to carry an identification badge will be considered a violation as stated in Section 3i, "Disciplinary Action," of this Agreement The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. es are the property of the City and will be returned by the Tow Operator to the City hours of an employee's separation. Tow Operator will provide a current list of ail dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the TowOperat nce of the services required herein shall be open to inspection by the óity or itsauthori and will be subject to no less than one annual inspection. Additional-inspections may be con ce during normal business hours. lnspections may include, but are not limited to, allbooks, , reports, files, financial reccrds, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpole oi auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are ir sufficient, derelict or fail to meet the reqúirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penaliy. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of theCVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shail have equipment capable of towing from off-road areas, towÍng from underground facilities, and recovery services'wìth an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel andlor the person for whom tow service is provided. Allfees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851 1',22851.2',228513, 22851 .4', 22851 6; 22851 8, 22851.10,22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc. ) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions These resolutions are open to public view at the City and/or City offices and are on file with theCity's Traffic Bureau. The Tow Operator will collect fees on the behalf of the ôity from the registered owner,legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by theCity. Fees will be established by an independent con;ulting firm to determine the City's costs ãssociated withimpounding vehicles in accordance with cVC sections 22850.5 and 12110(b). All ve'hicles impounded will becharged an administrative / franchise fee for the release of the vehicle. This fee will be established and attachedto each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release bythe Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrativefees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City'sadministratíve / franchlse fees for every_,City vehicle that was towed during the preceding month and'will pay theCity no later than 12:00 p.m. on the 15'n of the following month, regardless of the dispósition of tne ven¡cle. lnthe event that the 1 5"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a fee must be paid by 12:00 p.m. on Tow inistrative / franchise fees to the Ci onthon until all fees are received, an riate City will keep a strict accounting DTSace to ensure accurate and timely payment of collected Cityadministrative / franchise fees. The fee will be listed as an item on the owner's I agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officiallyreleased by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a majorviolation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded_with a multiple day hold may only be released prior to the impound period with writtenauthorization by the City in the DTS System. The DTS System will automatically sóhedule the release of animpounded vehicle 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of astored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representative,pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registeredowner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating thatthey are properly licensed and insured to drive a motor vehicle. 29. Disciplinarv Action The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violationsinvestigated and sustained. Unless othenvise noted, the Chief of Police, oihis¡her designee, will determine theperiod of suspension and shall retain discre.t:on regarding the length of any suspension imposed pursuant to theterms and conditions of this Agreement. The City shall retain record of violations for at least the term of thisAgreement. 30. Maior violatlons Major violations incf ude any chargeable offense under Federal, State, Local Law and significant violations of thisAgreement. Such violations shall result in suspension or immediate termination of this Ágreement. The Chief ofPolice, or his/her designee, reserves the right to impose longer periods of suspénsions or immediate termination, if deemed appropriate in his/her sole discretion The Chief of Police, or his/her designee, reservesthe right to remove a Tow Operator from the tow rotation during the investigation of a m4ór violation. Areinstatement from suspension for a major violation will result in a five hundred dóllar (9500.00) fäe. Suspensionwill not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln adäition, amajor violation may also result in the Tow Operator's employee being removed from [articipation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcemento Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - o Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard. Theft ¡ Mishandling of vehicles stored as evidence. Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusalto take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform¡ Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched callso Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipment. Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (1S) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and g-1712. Notwithstanding any provision within Chapter l, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $'184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloov Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between B:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 Allfees listed on the DTS invoice will be received in theform of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28rh day of December 20'14 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Kevin's Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv Infrinqement Unless otheruvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than .A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code '1- Any Auto) with limits of not less than $'1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck. . ... ... ... $120,000b) Class C towtruck...... ......$200,000 c) Class D tow truck. ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and author¡zed volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenivriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenvise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless othenruise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. Interpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. EmploveeEliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, B U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othenruise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. b H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. 28. Disputes-AqreementA) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - B) c) demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othenrvise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Title: ¿tJ44,K oatey'7- /o '// TOW OPERATOR*: Bv:ïitle: Print Name: Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: APPROVED AS TO FORM DOUGLAS T. SLOAN City ATTEST: WONNE SPENCE, CMC City Clerk Date:tt.øtt By:: Date: CITY OF FRESNO. A municipal I t z/zz/ t4 ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well aé the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a o special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7.00 a.m. to 9:00 a.m. and 4:00 p m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to includaa roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reqardino Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othen¡vise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an indlvidual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAooearance Tow Operators shall be required to furnish their employees with a distinctive company uniform Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: fìnancial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in fufther disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290¡ DU|-Within 5 years of the Date of Fingerprinting ¡ Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant¡ Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shail prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentifícationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to catry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (a8) hours of an employee's separation. Tow Operator will provide a current list of ail staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507 .5, 34600 et seq, 34620, and 1211 1 , and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determineé that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othenryise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California CivilCode (CCC) 3068.1 (seeAttachment B). Allfees listed on the DTS invoicewill be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851i2of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670;22851', 22851.1, 22851.2', 22851 3, 2285 1 .4; 22851 .6; 22851 .8', 22851 . 1 0, 2285 1 . 1 2 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Gancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12'.00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otheruvise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation The second vlolation will be in the form of a documented reprimanded and a one hundred dollar ($100 00) fine Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee o Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment . Failure to clean up at a collision scene o Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter l, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price oer vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates. Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between B:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver/ Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or caslr. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Lamona Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. ',. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqhtMaterials/Proprietarvlnfrínqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s) including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 eL seq of the California Labor Code 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. Independent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 1)COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. COMMERCIAL AUTOMOBILE LlABlLlry insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: Class A/B tow truck.$120,000 $200,000 $300,000 Class C tow truck.. Class D tow truck WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1 000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-¡nsured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, 2) 3) 4) a) b) c) 5) B) c) D) 3 employees and authorized volunteers Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operato/s business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shalf be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee 16, Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "A" 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees pelorming work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement wifl be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City lf such funding and/or appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination. Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. G) 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or(2)upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulateC under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forur¡arded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute behveen the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions. 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. CITY OF FRESNO. A municipal By Date: ief of tce APPROVED AS TO FORM DOUGLAS T. SLOAN City A By Date: ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: ',¿g tø¿// f I tz/zz/ t'l ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shallbe in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by ìaw, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contaín the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain witñ the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours aday, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6.00 p.m ,(Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and caf led at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove andlor transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area ls required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any propedy contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenruise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request wiil be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS progiam in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651 07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5.00 p.m. (PST) on the next business day 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto. profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All ernployees must be neat, clean and well groomed in appearance ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.g of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq. Drivers must complete a CHP approved Tow Operator Course every five(5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E. ) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed anð approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - tó - . Act¡vely on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. Ail decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shail prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow tiuck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of ail staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 2231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. '|-4. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the peformance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 2T7OO and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilitíes, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotatioñ list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must havô visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles These rates shall quote complete charges and fees with no additional fees to be added at a later date These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068 1 (see Attachment B). All fees listed on the DTS invoice wiil be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC All lien transactions mult be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at tien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670', 22851', 22851 1', 22851.2., 228513., 22851 .4; 22851.6; 22851 .8; 22851.10,22851 .12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times The gate fee is not to exceed fifty percent (S0%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run") The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12.00 p.m. on the 15" of the following month, regardless of the disposition of the vehicle. ln the event that the 15"'of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorízed release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otheruvise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Locaf Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major vlolation A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcemento Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment . Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing ln the event FPD servesTow Operatorwith disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen ('15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter l, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call. Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or casf¡. IVo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON.EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of Decembe r 2014 set.forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Mikes Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operatíons of the City of Fresno Police Department irpbl. participation inthe FPD Rotation Tow Program (Tow Program) is volui tary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services'unãer this Agreement. '1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State ofCalifornia excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venuefor purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing orcommencement of performance hereunder, contains the entire Agreement between the parties with respeðt tothe matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding oñ City unless authorized byCity in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by thepafties; no oral understanding or agreement not incorporated herein shall be binding on either of ifre parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City inwriting. 4. Assiqnment or Sub Contractinq The terms, covenants, and-conditions contained herein shall apply to the parties. Furthermore, neither theperformance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operatorwithout the express written consent of City. Any attempt by Tow Operator to assign or êubcontract theperformance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqhtMaterials/Proprietarv Infrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials in the performance of thisAgreement. Tow Operator warrants that any Software ¿ s modified through services provided hereunder will notinfringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defénd anO nótO Cityand City lndemnitees harmless from any and all such claims and be responsible for payment of all costs,damages, penalties and expenses related to or arising from such claim(s), including, -but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 ol the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancéstry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknówledges that aviolation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 e|seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreementwithout penalty immediately with cause and either party may terminate attei tnirty (30) days writtãn noticewithout cause, unless otherwise specified. Cause shall be deflned as any breach oi tn'¡s Agreement or anymisrepresentation or fraud on the part of the Tow Operator. Exercise Oy City of its right ìo terminate theAgreement shall relieve City of all further obligation. 8. Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver orconsent shall be in writing and signed by the party claimed to have waived or consented. Any consent Oy "nyparty to, or waiver of, a breach by the other, whether express or implied, shall not constitute cônsent to, waiverof, or excuse for any other different or subsequent brear h. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any otherprovided by law, rather than exclusive; and the expr:ssion of certain remedies in this Agreement dóes notpreclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator be consi nt Tow Operator and neither Tow Operator, its employees norder Tow considered an agent or an employee of City. Ñeit'her Towt""rï;i der Tow Operator, shall qualify for workers' compensation or 11. Performance Tow Operator shall peform all work under this Agreement, taking necessary steps and precautions to performthe work to City's satisfaction. Tow Operator shall be responsible for ihe professional quality, technicalassurance, timely completion, and coordination of all d Operator under this Agreement. Tow Operator shall: workman-like manner; furnish all labor, supervision, m therefore; at its sole expense obtain and maintain a including those of City required in its governmental cap permitted to subcontract, be full,v responsible for allwor 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials,employees, agents and authorized volunteers from any and' all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not'limited toP damage) incurred by C nyo smands and actions in ngã ¡ alleged to have arisen ofP s obligations under the all its officers, officials, employees, agents or authorizedvolunteers are negligent, but shall not apply to any loss, liability, fines, penalties,'forfeitures, costs ordamages caused solely by the gross negligence, or caused by the williul misconduct, of City or anyof its officers, officials, employees, agents or authorized volunt,eers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under thisAgreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defendCity and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force andeffect all policies of insurance required hereunder with an insurance company(ies) either (i) admittedby the California lnsurance Commissioner to do business in the State of California anà'rated notless than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager Thefollowing policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personaiand advertising injury',with coverage for premises and operations, products and completed operatioñs, 'and contractual liability (including, without limitation, indemnity obligations under t'he Agreement) with limits of liability of not less than $1,O00,000 per occurrence for bodily injury anã property damage, $1,000,000 per occurrence for personal and advertising injúry'a,i¿ $2,'oOo,ooóaggregate for products and completed operations and 92,000,000 geierãt ãggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of noiless than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles ór other licensed vehicles(Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury andproperty damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehictes in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... .. . .. ... $120,000b) Class C tow truck... ... ... $200,000c) Class D tow truck. . ... .. ... ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code andEMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurancepolicies required hereunder and Tow Operator shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared tó on the Certificateof lnsurance and approved by the City's Risk Manager or his/her designee. At the option of theCity's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, offícials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, orhis/her designee, guaranteeing payment of losses and related investigations, - claim administration and defense expenses. At no time shall City be responsible for ihe payment ofany deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notic of policy cancellation, change or reduction of covéråge,except for the Workers'C icy which shall provide ten (10) calendar days writiên notice of such cancellation ction of coverage. ln the event any policies are due toexpire during the term of Tow Operator shall provide a new'certificate and allapplicable endorsements evidencing renewal of such policy prior to the expiration date of theexpiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Uponissuance by the insurer, broker, or agent of a notice of cancellation, ðhange or reduction incoverage, Tow Operator shall file with the Chief of Police, or his/her designee, ãnd the City's RiskDivision, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officeis, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so TowOperator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its ôfficers, officials, agents, c) D) 3 employees and authorized volunteers Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to beprovided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in noway relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, inv-itees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy-certified by the underwriter to be a true and correct copy of the original policy. This requirement snáll survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City.Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operatorshall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms oi each of thepreceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmleés andbe responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's businessprior to completion of this Agreement, unless such change or transfer is to "immediate family" as de¡ned inFresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of police, or his/herdesignee, this Agreement. This includes but is not limited to changes in:Corporate Treasurer, Trustees, or ownership interests. All chanles or transfers t d by the Chief of Police, or his/her designee, prior tJ such change or to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The ,'immediate family" members involved in the change or transfer of ownership or control must also possesı and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenrvise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly invofved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension ortermination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a needfor equipment replacement and written approval is obtained from the Chief of police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the termof this Agreement. All such records and information shall be considered confidential anâ kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, atTow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, andregulations, including, but not limited to those issued by City in its governmental capacity and all other lawsapplicable to the services at the time services are provided to and accepted Oy ôity. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectiveiy l-aws¡. Tow Oþerator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otheruvise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paiagraph 25 of Attachment .A". 20. Terms and Gonditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full forcé and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless othenvise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable inthe matters dealt with in this Agreement ln addition, each party has been represented by experienced and knowledgeable independent legalcounsel of their own choosing or has knowingly declined to-seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this party hereto or 6y any person representing them, or both. Accordingly, any rule or law Codê section i6S4) or legal decision that would require interpretation of any ambiguiti inst the party that has 5 drafted it is not applicable and is waived The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entiiy, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreemenl meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmþration nãtorm and ControlAct of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereãfter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, lts agents, officers, and employees from employer sanctions and any other liability which may be assessed agâinst Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and ConditionsA) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. li such appropriations are not forthcoming, the I greement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf suðh funding and/or appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, butnot be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall the other party all papers, materials, and other properties of the other held by of execution of the Agreement. ln addition, each party will assist the other party ion of this Agreement and the transfer of all aspects, tangible and intangible, as for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this for Tow Operator is an authorized agent who has actual authority to nd every term, condition, and obligation of this Agreement and thai all r have been fulfìlled to provide such actual authority 6 H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail, or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS) l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. 28. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision.2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - B) c) demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. ïhe Parties hereto have executed this Agreement. TOW OPERATOR: rire: Oht^/ EÊ., TOW OPERATOR*: BV:Title: Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the álternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of i'hesignature to bind the company. Date: APPROVED AS TO FORM DOUGLAS T. SLOAN City Date: ATTEST. WONNE SPENCE, CMC City Clerk CITY OF FRESNO. 8 ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all 'State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violaiion of this section will be considered a material breach of the Agreement and may result in immediate términation of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding tñe flowof traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well aé the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle orvehicle intended for storage from a FPD rotation call or special operation Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for the Tow Rotation List excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain witñ the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at nignt All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dãys perweek. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22BSO.3 and 226-51 07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p m ,(Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the TowOperator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable torespond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. will be esponse. Each non-response will be immediatelyEach e logged by the DTS System and reviewed by the onse is than the Tow Operator, the Tow Operator will be nd calle portunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may Oe grounds fora (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator ble to provide services due to preplanned/scheduled activity, such as a vacation, m etc , the Tow Operator will notify City in writing via the DTS system at least forty-e City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and allpersonal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnef, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. L Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at afltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcily to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv Ïhe Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS progiam in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operafor will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions ornotifications received from an authorized City employee or electronic notice from the DTS program. lf the TowOperator receives verbal instructions or notifications from a City employee the Tow Operaior must respond toCity, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services req obtain and keep the confidence of the public. employee of the Tow Operator exhibit any of uncooperative, argumentative, threatening, inco employee, or with any member of the public. assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative,arg competent or dangerous manner. The City also reserves the right to cancelan if in the opinion of the City the Tow Operator is likely to damagã the vehiclefor called. Other examples of unacceptable behavior ¡nôluCe but ãre not limitedto: age, disconnecting telephone calls for public inquiries regarding à to*threatening, aggressive, or assertive language, failure to provide timely information oidocuñrents inresponse to a public or City inquiry, lack of respect to any City personnel or member of the public,destruction or damaging of evidence, failure to comply with ihe reasonable request of a member of thepublic, failure to release vehicle in a timely manner, failure to make appointmênt for release of vehicleduring evening or weekend hours, failure to promptly be on site at time of appointment for release ofvehicle during evening or weekend hours, impeding an investigation or any otn'ei conduct which the Citydeems unprofessional. lf be in violation of this conduct clause, the City will cancel the Tow Operatora rator in rotation. Any such behavior as set forth above shall be considereda reement and may be grounds for immediate suspension or immediatetermination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Eachuniform shall have the firm's name, as well as the employee's name, in a conspicuouj place. The towcompany's name and driver's first name shall be clearly visible at all times, meaning thåt protective orinclement weather outer garments must meet this standard. Each employee shall have sufficient uniformsso as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include ashirt, long pants, and appropriate safety shoes. All drivers shall be in uniiorm before any towing or serviceoperation begins. No wording, designs, photos, gestures, or anything that could be considered offensiveor obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform.Dress standards are required in order to project a professional and positive image to lhe public All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working Personnel will be required toconceal any tattoos with gloves, collars,.long sleeves, or by other meañs acceptable to the City. Èaciåltattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear_safety vests or reflectorized clothing that conforms to Occupational Safety and HealthAdministration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporatedinto the uniform, jacket, or rain gear, as long as these items are worn as the outermost gãrment. C ) UnlawfulActivityTh hall not be involved, nor shall the Tow Operator or its employeesbe activity whether verbal, written or- conueyêd in any other manner,an may be construed as unlawful. lf the City deems ihe involvementto y terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to anyperson or public or private entity, in consideration ol arranging or requesting the services'of a tow truck aåprovided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle, kickback to or from a security company or homeowner'å association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that allof its personnel will be properly licensed in accordance with sections 12500, 12520, and 12g04.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as de¡ned in CVC section1808'1 et seq.. Drivers must complete a CHP approved Tow Operator Cıurse every five(5) years and copies of completion of the course shall be sent to the City. All Tow Operatorj andpersonnelshall have no criminalrecord which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City frior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator willprovide the City with information regarding any change in employee status immediately and update DTSto reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform anyseruice under this Agreement until the background record check and "LiveScan" is completeO aná approved by the City and said employee has receiver their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previousÏow Service Agreement and have completed a new background and "LiveScan" cheðk will be aliowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 2g0. DUI-Within 5 years of the Date of Fingerprinting. Vehicle thefto Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Act¡vely on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to ifie Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator maybe given the opportunity to replace that employee without prejudice to the Agreement. ru'otning snaitprohibit the City from removing, suspending or termir eement. lt wili be the responsiOitity otthe Tow Operator to provide the City wi arding any illegal activity, arrest(s) or conviction of any Tow Operator and/or e of this section, any conúlcilon oi plea of guilty or nolo contendre, even to any re considered convictions. Failure toprovide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck he Tow Operator shall wear, in plain view an identification badge, authorized and that employee, while on any call for service where the City isinvolved. 11 a ds to a scene without his authorized name badge, the tow tiuck driver will be d e and the next Tow Operator in rotation will be ıalled. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," ofthis Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Jústice. All identification badges are the property of the City and will be returned by the Tow Operator to the Citywithin forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 etseq, 34620, and 12111, and sections 723j et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the TowOperat services required herein shall be open to inspection by the City or itsauthori subject to no less than one annual inspection. Additional-inspections may be con ormal business hours. lnspections may include, but are not limited to, allbooks, iles, financial reccrds, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpoie oi auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are ir sufficient, derelict or fail to meet the reqúirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27TOO and 27907 of theCVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle andlor a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shail have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services'with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum offifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At thediscretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason theTow Operator is unable to complete the tow service request with the wrecker, the Tow Operatoi will not beplaced back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25{on truck is not required equipment. However, Tow Operators that possess this equipment will beplaced on a heavy-duty tow rotation list. All trucks must have_the required emergency lighting, portable stop and tail lamps, a broom, shovel, fireextinguisher (rating 4-Br C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approvedabsorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by themanufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone offtraveled portions of roadways into inundated areas or other inaccessible locations Winches must havé visiblelD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City fromconducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operatorshall not display any sign or advertising material that indicates that his tow vehicles are an official police serviceof the City. 17. Gharqes and Fees to be collected from Registered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles These rates shall quotecomplete charges and fees with no additional fees to b: added at a later date. These rates will be available forreview by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemizedand invoiced in DTS the CVC. tt wiil be the to collect his bill for s sible in any way for the be calculated on the which is countêd as a California Civil Code Al fees listed on the DTS invoice will be received in theform of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must beinvoiced through the DTS system prior to release and at the time of payment. No credit card fees will becharged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The Cityreserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached toany vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage aslisted in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions muit beentered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to liensales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such tirie as isconsidered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold atlien, but under no circumstances before the thirty-fifth (3sth) day after storage. The Tow Operator shall abide by all appficable statutes and ordinances concerning disposal of unclaimedvehicles, including b9! not necessarily limited to CVC sections 22670; 22851, 22BE1.li ZZeSt.2: 22851.3.,22851.4, 22851.6, 22851.8', 22851.10, 22851.i2 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the TowOperator that sells any vehicle at, or disposes of any vehicle aftet, a lien sale, as long as the Toiv Operator canshow written proof that he was notified in writing by the )ity that the vehicle would not-be needed as evidence ina legal action. This proof may exist in the form of an official release in the DTS System or any other writtenconveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removalfrom the rotation list The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out ofgas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) ofthe flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees ) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as ouflined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner wlthout charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln ¿ddition, the Tow Operator will be given one exira tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorizalion falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12.:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the l5th of the month falls on one of the State recogniãed holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 1200 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reseryes the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a fìve hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow ¡ Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storage Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. IVo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. - 19 - CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 26th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Nellys Towing, a Partnership (the Tow Operator). all attachments, contains rules and regulations that a tow company agrees to comply in the tow operations of the City of Fresno Police Department (FPD). Participation in gram (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services-unãer this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venuefor purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing orcommencement of performance hereunder, contains the entire Agreement between the parties with respeót to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein. No exceptions, alternatives, substitutes or revisions are valid or binding oñ City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties; no oral understanding or agreement not incorporated herein shall be binding on er'ther of ìhe parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City uñless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither theperformance of this Agreement nor any porlion thereof may be assigned or subcontracted by Tow Operatorwithout the express written consent of City. Any attempt by Tow Operator to assign or subcontråct theperformance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqhtMaterials/Proprietarv lnfrinqement Unless othen¡r¡ise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining alicense or other authorization to use any patented or copyrighted materials in the performance of thisAgreement. Tow Operator warrants that any Software ¿s modified through services provided hereunder will notinfringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defénd anO notO Cityand City lndemnitees harmless from any and all such claims and be responsible for payment of all costsdamages, penalties and expenses refated to or arising from such claim(s), including, -but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the peÍormance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator äctnówledges that aviolation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defÌned as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City 1'l . Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorízed volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and rnclude coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, whrch are as follows: a) Class A/B tow truck. $120,000b) Class C tow truck. . $200,000c) Class D tow truck. $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $'1,000,000 disease each employee Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and author¡zed volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. ïhe policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or polrcies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be dìscontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in. Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or hisiher designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Gompliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "A" 20. Terms and Gonditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. Interpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legalcounselof their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Gonditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty C) Conflict of Interest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actual delivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or informatron may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City, All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement The inspection andior audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be fon¡varded to the Chief of Police or hls/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potentialdisputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR: Title: 6 t rløf TOW OPERATOR*: *lf a corporation or limited liabilíty company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: APPROVED AS TO FORM DOUGLAS T. SLOAN City Attorne By Date: ATTEST: WONNE SPENCE, CMC City Clerk By:. Date: V lJ ornfrh"' Flor"t A munici 8 gJå8äË"ilJ¡^ 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)) lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full fìnancial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing wíth FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 spec¡al operat¡on with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. ïow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the ïow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area " Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. ïhe facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651 07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Iow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11- 'l',. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otheruvise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins No wording, designs, photos gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804 g of the CVC All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC sectionlB08.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290o DUI-Within 5 years of the Date of Fingerprintingr Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moralturpitude . Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing seruices for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver wifl be dismissed from the scene and the next Tow Operator in rotation will be called Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the propedy of the City and wifl be returned by the Tow Operator to the City within forty-eight (a8) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otheruvise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25{on truck is not required equipment However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City 17. Charoes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in alltow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as rs considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'") day after storage. The Tow Operator shall abide by alf applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670,22851',22851.1:22851.2,22851.3, 22851 .4: 22851.6:22851.8; 22851.10, 22851.12 and 22852 5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -'15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees ) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable seryice being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receíve the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by _16_ City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12,100 p.m. on the 15"'of the following month, regardless of the disposition of the vehicþ. ln the event that the 15"' of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who failto submit the City's administrative / franchise fees to the City by the 1sth day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of coilected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a majoi violation as set forth in this Agreement The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release The Tow Operatoris hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850 3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. Disciplinarv Action The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar (9500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcemento Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B o Vehicle released without authorization. Unauthorized access to storage yard . Theft ¡ Mishandling of vehicles stored as evidence. Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusal to take a rotational tow. Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard ¡ Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspensron will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712 Notwithstanding any provision within Chapter 1, Article4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, ora termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloov Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates. Passenger cars $ 45.00/per day Motorcycles $ 45.00/per daY Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55 00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 Att fees tisted on the DTS invoice witl be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC secfion 1748.1. : - l9 - CITY OF FRESNO NON.EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and RR-M Reyna Towing, a California Corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assionment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv lnfrinqement Unless otheruvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 el seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOI(/CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... $120,000b) Class C tow truck... ...$200,000 c) Class D tow truck... ...$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies) The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenruriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on fìle with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenivise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless othenvise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless othenruise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S C. 51324 et seq., as they currently exist and as they may be hereafter amended Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Gonditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othenryise terminated by City B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othenruise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards. Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority G) b 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to peformance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee Disputes-Agreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othenruise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. r¡fle: Þf€ sìol¿ar *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: APPROVED AS TO FORM DOUGLAS T. SLOAN City Attor By Date: CITY OF FRESNO, 8 t z lzzl t,.t s'Jå:äË=,,)5f^ 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a o special operat¡on with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Resoonse Time Tow Operator shall respond to calls twenty-four (24) hours aday, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _ 10 _ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otheruvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall cteady identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenruise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limited to: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Crimrnal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290 o DU|-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property . Crimes of Vlolence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5, 34600 et seq, 34620, and 121'11, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required ltcense or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, poftable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehrcles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851.1:22851.2:22851.3: 22851.4', 22851 .6, 22851.8; 22851.10,22851.12 and 22852.5 As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Gall Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An afier hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Gancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System The City's administratrve fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the 1Sth of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the '1stn day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othen¡vise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. Disciplinarv Action The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotationaltow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard o Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violatton by the Chief of Police or his/her designee . Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment . Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, ora termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle oer call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or casñ. Â/o credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON.EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Rays Towing, a Partnership (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governino Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Agreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otheruvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otheruvise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. Independent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. '12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than .A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 0'1 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... ......$120,000b) Class C tow truck ... $200,000c) Class D tow truck.. ...$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and author¡zed volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenryriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othen¡vise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "B", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otheruvise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. Interpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654)or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Gonditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otheruvise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othenvise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. "lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. ATTEST: YVONNE SPENCE, CMC City Clerk Date: Date: t4.ll.l By:: Date: TOW OPERATOR*: CITY OF FRESNO. A municipalcor APPROVED AS TO FORM DOUGLAS T. SLOAN I lz/zzJ t + ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 228503 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a m. to 9:00 a m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenryise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facility The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "f ow Operator Personnel" of this Agreement lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provrde any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC sectionl808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DU|-Within 5 years of the Date of Fingerprintingo Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant . Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Gertification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections. 34507.5,34600 et seq, 34620, and 1211'1, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services wlth an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.'1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651 I and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (351h) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670:22851:22851.1:22851.2',22851.3', 2285 1 . 4; 2285 1 .6; 2285 1 .8: 2285 1 . 1 0, 2285 1 . 1 2 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable seruice being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow rn rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than l2:00 p.m. on the 15tn of the following month, regardless of the disposition of the vehicle. ln the event that the 1Sth of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12'.00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15"'day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenrvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DïS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation A reinstatement from suspension for a major violation will result in a ftve hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement o Verbal abuse against public and/or law enforcement . Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization. Unauthorized access to storage yard . Theft. Mishandling of vehicles stored as evidence . Unauthorized driver responding to call o Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee . Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment o Failure to clean up at a collision scene o Vehicle code infractions 32. Hearinq/Aopeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD seryes Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fìfteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, ora termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToMFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloov Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 AII fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Robinsons Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCoovriqhtMaterials/Proprietarvlnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 eT seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days wriüen notice without cause, unless othen¡vise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Gonsent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervrsion, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeltures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall requrre each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... . .. ... . .. $120,000 b) Class C tow truck... ... $200,000 c) Class D tow truck... ...$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retent¡on as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenruriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenryise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragrapl-r 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Galendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the malters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or iegal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and ConditionsA) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othen¡vise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of Interest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given ('1)upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to. All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, fìles, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-AqreementA) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiatlve, has already rendered such a final decision.2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made rn good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identifìed as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othen¡vise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Title: TOW OPERATOR*: Print Name'Date' *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. APPROVED AS TO FORM DOUGLAS T. SL City Date: Date:By By:: Date:t zf zz), y CITY OF FRESNO. þrano{an 14 .6lt.f ATTEST: WONNE SPENCE, CMC City Clerk I i"'Jå."äP='l[f- 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resultrng from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evrdence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a o special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Signage and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 228503 and22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _ l0 _ and Chateau Fresno to the west Tow Operator shall be responsible for the security of vehicles and property at the place of storage At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. ïhe City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A ) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limited to: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the fìrm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, wrttten or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnelshall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E. ) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290 ¡ DU|-Within 5 years of the Date of Fingerprinting ¡ Vehicle theft. Fraud. Stolen Property . Crimes of Violence . Any felony crime relating to narcotics or any controlled substance . Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moral turpitude . Sex, Arson, Narcotics Registrant . Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 eI seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnsoection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be malntained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least '14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless othenvise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to conducting random inspections throughout the year. 16. Vehicleldentification a yearly inspection. This does not preclude the City from Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Gharqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (seeAttachment B). Allfees listed on the DTS invoicewill be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748,1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relattng to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35"') day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerntng disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670;22851',22851.1;22851.2;228513', 2285 1 .4', 22851 .6; 2285 1 .8; 22851 . 1 0, 2285 1 . 1 2 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Gall Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 1Sth of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Sectton 22 above, or a weekend,theCity'sadministrative/franchisefeemustbepaidbyl2:00p.m.onthefollowingbusinessday. Tow Operators who fail to submitthe City's administrative / franchise fees to the City by the 15"'day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenruise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. Disciplinarv Action The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless othenivise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation A reinstatement from suspension for a major violatron will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement . Verbal abuse against public and/or law enforcement . Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization ¡ Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call o Failure to provide information or change of status on any Tow Operator employee or staff o Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusal to take a rotational tow o Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued LD. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee . Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment . Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or hts/her designee, through the Tow Unit Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToMFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45 00/per day Motorcycles $ 45 00/Per daY Trucks or Trailers $ Average CHP Rates Apply lnside Storaoe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver/ Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 AII fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. - 19 - CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the December 2A, 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Romo's Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services unðer this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of tne parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Gontractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv lnfrinqement Unless othen¡vise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of tñis Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violatioñ of anti- discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless othen¡vise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirecfly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its offìcers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll' in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $,1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA OO 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury and property damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck.. ... .. . ... $120,000b) Class C tow truck. ... $200,000c) Class D tow truck... ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: f ) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-f01(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer ln order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the staft of the delay and Tow Operator avails itself of any available remedies. 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "A". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. Interpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. Sf 324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, offlcers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otheruvise terminated by City B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othenryise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of Interest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or othen¡vise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. TOW OPERATOR: a^-- TOW OPERATOR*: Bv Title: Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. DOUGLAS T. SLOAN City By Date: fuu*v, t4' hl( ATTEST: WONNE SPENCE, CMC City Clerk 8 t z/ zzJt"t ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _10_ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to. the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othen¡vise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request wiil be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12,"Tow Operator Personnel" of this Agreement lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othen¡vise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto. profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and '12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every fìve (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290¡ DUI-Within 5 years of the Date of Fingerprinting o Vehicle theft. Fraud. Stolen Property o Crimes of Violence. Any felony crime relating to narcotics or any controlled substance . Any other crimes enumerated in CVC section 2432.3 -13 - . Actively on parole or on any form of probation . Crime of moralturpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to catry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 el seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670; 22851', 22851.1: 22851.2; 228513', 22851.4; 22851 .6', 22851.8', 22851.10,22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations requrre a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Assooation of America (TRAA) vehicle identification guide. 2'1. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Gancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative I franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12.:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 1 5th of the month falls on one of the State recogniied holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspenston and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization. Unauthorized access to storage yard . Theft o Mishandling of vehicles stored as evidence. Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest. Refusal to take a rotational tow. Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor vrolations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls ¡ Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provisron within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirly (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -'18 - ATTACHMENT B TOW FEES Flat price oer vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storage Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or caså. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Ron's Towing, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otheruvise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 ol the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwtse specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedles Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... ... ... ... $120,000b) Class C tow truck. ... $200,000c) Class D tow truck. ...$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $'1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liabilrty insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bllls and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as deflned in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othen¡vise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohib¡ted. B) lf terminated or suspended, Tow termination, shall not be eligible termination. This section applies Operator and/or its owner at the time of the suspension or for a rotation listing for the duration of the suspension or to the Tow Operator working in any capacity within any tow -4- business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Parag raph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 2'1. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless othenruise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each parly has been represented by experienced and knowledgeable independent legalcounsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Gonditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless othen¡vise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are othenvise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly reguirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given ('1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Agreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otheruvise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Ti¡e: è4.ttYl| f Date: 12- ?- / + TOW OPERATOR*: Bv:Title: TOW OPERATOR: Print Name:Date: "lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. Date: APPROVED AS TO FORM DOUGLAS T. SLOAN Ft- Collef Date: ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: By CITY OF FRESNO. I t z lzzf ty ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Ïow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove andlor transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, _10_ and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenruise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s) 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and suffrcient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651 07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Gitv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notificatrons from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. '12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenryise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limited to: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other offlce personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.g of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement untif the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290o DUI-Within 5 years of the Date of Fingerprinting¡ Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registranto Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 3'1, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within fofty-eight (a8) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operatoi will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must havé visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuant to section 22851.12 of the CVC. All lien transactions mult be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670;22851',22851.1:2285j.2;22851.3, 22851 .4', 22851.6; 22851.8; 22851 .10, 22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence ina legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffìc Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than l2:00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the 15th of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by l2:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othen¡vise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless othen¡vise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immedrate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her desrgnee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization¡ Unauthorized access to storage yard¡ Theft ¡ Mishandling of vehicles stored as evidence¡ Unauthorized driver responding to call¡ Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusal to take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard. Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: o Late payment of City franchise fees. Tow truck drivers not wearing City issued LD. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needso Failure to maintain proper equipment. Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (,15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and g-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToWFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. lVo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POL¡CE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28'h day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Steve's Towing, a partnership (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement 1. Governínq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of thls Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. ment Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disabílity, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 el seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive, and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LlABlLlry insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LlABlLlry insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... ... .. . . . ... . .. $120,000b) Class C tow truck. $200,000c) Class D tow truck... .. .. $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $,1,000,000 disease policy limit and $1,000,000 disease each employee Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or elim¡nate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a finanòial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten ('10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liabilíty nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Ghanqe of Gontrol Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othenryise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equrpment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and wrrtten approval is obtained from the Chief of Police or his/her designee 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avatls itself of any available remedies. 17. Confidentialitv Tow Oþrator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U S C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December28,2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of Interest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or requrred to be given hereunder shall be deemed duly given (1)upon actualdelivery, if delivery is by hand, or(2) upon delivery bythe United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disoutes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7- demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. îtL ( htN Øv *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the ãfternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of äesignature to bind the company. DOUGLAS T City By Date: \, ô\ ATTEST: WONNE SPENCE, CMC City Clerk By:: Date:z/ t't TOW OPERATOR*: CITY OF FRESNO. of APPROVED AS TO FORM I ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towing Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding tñe flow of traffic, or which for any other reason, are within the jurisdiction of the FPD As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)) lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to tñe job and are to be inclúded in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain witñ the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnage and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Ïow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651 07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours aday, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7.00 a.m. to g:00 a.m. and 4:00 p m. to 6.00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension ortermination, allvehicles then in storage atthe time of the suspension ortermination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove andlor transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplannedischeduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required ior outsidestorage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #20g and shallfollow the current Development and Resource Management Department's Policy and procedure C-002. lf thetow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care,custody, and control of any property contained in towed or stored vehicles. The storage facility and businessoffice will be located at the primary storage yard and shall be maintained in a functiónal, clean and orderlyfashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment toproperly run DTS software and to send and receive email ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes. These measures could include, but are not limited to: the yard beingilluminated during darkness, with security type lighting, to such a degree that visual observation oi the entireyard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcfly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle-,requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place ofbusine the City's les stored at an auxiliary storagä facilitywill be reement. ll not remove personal'properiy from astored removes a stored vehicie, the Tow öpeiator willmainta will requ signed receipt from the registered owner fór propertyreleased. The Tow Operator shall immediately notify the City if any contrabañd, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv Ïhe Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean worki ìg space. The facility must be constructed to inc-lude aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather. The facility should have a concrete floor and sufficient lighting This inside facility must be located atthe Tow Operator's primary storage yard. This inside facility is not required to quatify toi tfre City,s rotation,however, when inside storage is requested for a particular vehicle, the next Tow Opeiator in line meeting theneeds of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track,via a web-based lnternet connection. Tow Operators will be required to enter the tıwed vehicle information asinstructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without allrequired data fields being entered into the DTS system by the Tow Operator. The Tow Opeiator shall clearlyidentify and enter into DTS the name of the person to whom the vehicle was actually released. All City towrequests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shallcause the immediate removal of the Tow Operator from the tow rotation and bé grounds for immediatetermination by City. Tow Operator must enter into a separate agreement, or license for the DTS softwareprogram with the owner of that proprietary software. The City shall not provide the DTS software program, anylicensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operatòr oi tne OISsoftware program. This Agreement shall not be executed by the City until Tow Opérator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for allfees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time,, and allentries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant tosection 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTb are those tf at hqye fully complied with the provisions set forth in Section 12, "f ow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operaìôr will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City electsto utilize a new software provider, the Tow_Operatorwill be required to use the replacement towing s-oftwaresystem. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as refereñces to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notiflcation by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or ãny employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenrvise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become invofved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or busíness venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner'i association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12g04.9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section'1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Cıurse every five(5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City þrior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Íow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be aliowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is rationale or factual information in the event it elects to denyapplication personnel from providing services for the City under thisAgreement ts denied under this seòt¡on may appeal to ine Chief ofPolice or hi Chief of police, or his/her designee, are final. ln the event the Tow Operator or employee is c be given the opportunity to replace that emplo prohibit the City from removing, suspending or t the Tow Operator to provide the City with updat conviction of any Tow Operator and/or employee of guilty or nolo contendre, even to any lesser-i provide information regarding the identity of the employee, or anyone else with a financial interest in theTow Operator will result in termination of the Agreement. Failure to provide information to the City ol'anyinformation regarding the conviction of any of the above crimes may also result in termination of theAgreement. G.) ldentificationBadges Each tow tru shall wear, in plain view an identification badge,authorized â ¡ryhile on any call for service where the City isinvolved. lf thout his auihorized name badge tne tãw tiuct<driver will be - next Tow operator in rotat¡on will be ialled. Failure tocarry an identification badge will be considered a violation as stated in Section 3'1, "Disciplinary Action,,'ofthis Agreement. The purpose of these badges will be to identify those employees of the Tów Operatorwho have been fingerprinted by the City and have passed the record check Oy ttie Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the Citywithin forty-eight (a8) hours of an employee's separation. Tow Operator will proviOe a current list of allstaff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and iurrent list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current andvalid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12j11, and sections 7231 etseq, of the California Revenue and Taxation code. Failure to have any required license or certification, includingany driver who fails to have an appropriate class of license, may be grounds for immediate termination nV ò¡tVwithout penalty. 14. Inspection All real property and improvements thereon, and all veh Operator in the performance of the services required authorized representative, and will be subject to no less be conducted without notice during normal business ho books, accounts, records, reports, files, financial rec erator for the purpose of auditing he event that the City determines fail to meet the requirements as ately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27g07 of theCVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2)vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capábilities and theability to communicate and connect with the DTS System at all times. The Tow Operator shail have equipmentcapable of towing from off-road areas, towing from underground facilities, anå recovery services'with anadjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towingcapabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum offifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, al¡ Tow _14_ Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25{on truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fìre extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Registered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (seeAttachment B). Allfees listed on the DTS invoicewill be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670:22851',22851.1',22851.2,22851.3', 22851.4; 22851.6; 22851.8, 22851.10, 22851 .12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list Ïhe Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8.00 a.m through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (S0%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls underCVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than '12:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the '15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or othenvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850 3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's empioyee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physicalassault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidencee Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arrest. Refusal to take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard o Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($10000) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform. Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or hisiher designee. Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipmento Failure to clean up at a collision scene. Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (1S) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Offìce. The written appeal shall be in compliance with FMC sections 1-407 and g-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. 18 ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ '184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45 00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $1 16.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 Allfees listed on the DTS invoice will be received in theform of major credit card, debit card or cash. Â/o credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- I f CITY OF FRESNO NON.EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipalcorporation (City) and Thrifty Towing, a California corporation (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Agreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any porlion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any potlion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUGopvriqht Materials/Proprietarv Infrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 et seq. of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless othen¡¡ise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. L Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 1',. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall. perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. ',2. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than 91,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck... ......$120,000b) Class C tow truck.. ... $200,000c) Class D tow truck... ... .. ... $300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either. 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers'Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) J employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or appl¡cant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or terminatÍon. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies. 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Gompliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided 23. Attornev Fees lf either party is required to commence any proceeding or legalaction to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulatrons regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, 8 U S.C. 51324 et seq., as they currently exist and as they may be hereafter amended Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Gonditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: ïow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. b 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given ('1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS) l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have informatlon related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7- demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's finaldecision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow h any of the provisions, covenants or conditions of this Agreement shall be a material bre ln such event the City may, and in addition to any other remediesavailable at law, in eq ified in this Agreement, undertake any of the indiiidual actions orany combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Date: lL40-l'l EE *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the ãlternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of i-hesignature to bind the company. CITY OF FRESNO. A municipal corporation Jerry Dyer, Chief of Police Date. APPROVED AS TO FORM DOUGLAS T. SLOAN City A By By ATTEST: WONNE SPENCE, CMC City Clerk Date: Date: h * Þt- CrJteþ t Name: 8 ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipmènt, machinery, and tools The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the Quty to provide for the safety and security of those vehicles and the contents thereof These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD 3. Special Operatíons FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service The sign shall have letters that are clearly visible to the public from the street and must be visible at ñignt. ntt storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dàys per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 228503 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p m. to 6,00 p m ,(Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unabte to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator wi¡ be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds fora (30) thírty-day suspension of this Agreement A third violation will be considered a material bréach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. TheÏow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property atthe place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required ior'outsidestorage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shallfollow the current Development and Resource Management Department's Policy and Procedure C-002. lf thetow facility is located outside the City of Fresno, the tow operator is required to provide written proof that theyard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care,custody, and control of any property contained in towed or stored vehicles The storage facility and businessoffice will be located at the primary storage yard and shall be maintained in a functiónal, clean and orderlyfashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment toproperly run DTS software and to send and receive email ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures toassist in preventing such crimes. These measures could include, but are not limited to: the yard beingilluminated during darkness, with security type lighting, to such a degree that visual observation oi the ent¡reyard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed direcfly to a towingservice storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle-, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place ofbusine the City's les stored at an auxiliary storage facilitywill be reement. ll. not remove personal'prop"riy from astored removes a stored vehicie, the Tow òperator willmainta will requ signed receipt from the registered owner for propertyreleased The Tow Operator shall immediately notify the City if any contrabañd, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean worki ìg space. The facility must be constructed to include aroof and at least four walls of substantial design to withstand the elements and protect the vehicles from theweather The facility should have a concrete floor and sufficient lighting This inside facility must be located atthe Tow Operator's primary storage yard. This inside facility is not required to qualify toi tfre City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Opeiator in line meeting theneeds of the City's request will be used 10. DTS Requirements Tow Operator shall utitize the most recent, updated and upgraded DTS software program, to dispatch and track,via a web-based f nternet connection. Tow Operators will be required to enter the towed vehicle information asinstructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without allrequired data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearlyidentify and enter into DTS the name of the person to whom the vehicle was actually relàased. All City towrequests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shallcause the immediate removal of the Tow Operator from the tow rotation and bé grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS softwareprogram with the owner of that proprietary software. The City shall not provide the DTS software program, anylicensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator oi t¡e OtSsoftware program. This Agreement shall not be execut d by the City until Tow Operator has demonstrated tothe City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for allfees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time, and allentries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant tosection 2265107 of the CVC. The only Tow Operator personnel authorized to utilize and access DTb are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement.lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operaór will beremoved from the City towing rotation. ln the event that DTS fails to provide software services, or the City electsto utilize a new software provider, the Tow_ Operator will be required to use the replacement towing sãftwaresystem. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as refereñces to thenew software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Offìcial notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. '12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othen¡vise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivitv The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D ) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five(5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed anO approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be aliowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing seryices pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprintingo Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -'13 - . Actively on parole or on any form of probation. Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide tnformation regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentifícationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Ooerator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspectiohs may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25{on truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fìre extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.'l and CCC section 17481 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35'n) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851',22851.1',228512',22851.3', 22851 .4', 22851.6; 22851.8', 22851 10, 22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for simllar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towing Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (ïRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day MemorialDay lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees ) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Gancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offìces and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22above, or a weekend, the City's administrative/franchise fee must be paid by 12.00 p. m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15tn day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otheruvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representatlve taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reseryes the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reseryes the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees o Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours . Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Apoeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed -18- ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty ToWFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates. Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. IVo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. - 19 - CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Tips Automotive, a sole proprietorship (the Tow Operator). ïhis Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under this Agreement. 1. Governing Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Asreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respect to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forth herein. No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party. Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City lndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disabifity, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 etseq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specifled. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator. Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/servíces furnished by Tow Operator under this Agreement. Tow Operator shall. perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore, at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for allwork performed by sub-Tow Operators 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. Insurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than 'A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LlABlLlry insurance which shall be on the most current version of lnsurance Service Offìce (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck. $120,000b) Class C tow truck.. ...$200,000c) Class D tow truck... ...$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, offìcials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorízed volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the Iiability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership Interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or othen¡vise be legally responsible for the Tow Operator will be required to execute a new TSA A) Tow Operator owners shall be directly involved in the day{o-day operat¡ons of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otheruvise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "B", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legalcounsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Rèform and ControlAct of 1986, 8 U.S.C. $1324 et seq., as they currently exist and as they may be hereafter amended Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, butnot be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards. Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and thai all requirements of Tow Operator have been fulfilled to provide such actual authority. b 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be fon¡varded to the Chief of Police or his/her designee Disputes-Aqreement A) The Parties shall déal in good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official índicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identifÌed as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - demand, it shall be deemed a flnal decision adverse to Tow Operator's contentions. City's finaldecision shall be conclusive and binding regarding the dispute unless Tow Operato, com.ences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provrstons, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other iemedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions orany combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. TOW OPERATOR*: Bv.Title: The Parties hereto have executed this Agreement Print Name:Date: *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assístant secretary, the Chief Financial Officer, or any assistant treasurers. In the ãlternative, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of thesignature to bind the company. Date: ATTEST: WONNE SPENCE, CMC City Clerk By:: Date:zz/t y CITY OF FRESNO, APPROVED AS TO FORM DOUGLAS T. SL 8 ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at alltimes during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towinq Services and Duties f t shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www findmytow com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a I spec¡al operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Siqnaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) dãys per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a m. to 9:00 a.m. and 4:00 p.m. to 6:00 p m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. ff, after accepting the call, the Tow Operator is unabte to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termínation of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, -10- and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002 lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at alltimes, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otheruvise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Ïow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. ff that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. OfficialNotification bv Citv Reqardinq Tow Official notiflcation by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5.00 p m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowne/i association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, includíng tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that allof its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.g of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808 1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five(5) years and copies of completion of the course shall be sent to the City All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City þrior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be aliowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290¡ DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen property . Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 -13- . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement. G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any reguired license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real propefty and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the pedormance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request A 3-axle or 25-ton truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reoistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670;22851;22851.1',22851.2;22851.3, 22851 .4', 22851 .6; 22851 .8; 22851 .10, 2285 1 . 1 2 and 22852 5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of Anierica (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day MemorialDay lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16 - City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every.City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15"'of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administrative / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City. 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle. 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement. The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Majorviolations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or hisiher designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement. Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B. Vehicle released without authorization. Unauthorized access to storage yard. Theft. Mishandling of vehicles stored as evidence. Unauthorized driver responding to call. Failure to provide information or change of status on any Tow Operator employee or staff. Substantiated private party impound complaints. Any Felony/Misdemeanor arresto Refusal to take a rotational tow. Failure to utilize the DTS System for all City towing related matters. Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard . Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100 00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform¡ Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designeeo Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipment. Failure to clean up at a collision sceneo Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (i5) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the TowUnit Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and g-1712. Notwithstanding any provision within Chapter 1, Article4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, ora termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat orice per vehicle per call: Light Duty ToMFlatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Averaqe CHP Rates Applv Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates. Passenger cars $ 45.00/per dayMotorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates: Passenger cars $ 55.00/per dayMotorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (S0%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non{ow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 Allfees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. /Vo credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19- CITY OF FRESNO NON-EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 28th day of December 2014 set forth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Tow City, a sole proprietorship (the Tow Operator). This Agreement, including all attachments, contains rules and regulations that a tow company agrees to comply with in order to participate in the tow operations of the City of Fresno Police Department (FPD). Participation in the FPD Rotation Tow Program (Tow Program) is voluntary. Compliance with all of the terms and conditions of the Agreement is mandatory for tow companies participating in the Tow Program. A Tow Operator, by agreeing to participate in the Tow Program, is not acting as an agent for FPD or City when performing services under thið Agreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State of California excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be the County of Fresno, California. 2. Entire Aqreement This Agreement, its attachments and exhibits, when accepted by the Tow Operator either in writing or commencement of performance hereunder, contains the entire Agreement between the parties with respeót to the matters herein, and there are no restrictions, promises, warranties or undertakings other than those set forthherein No exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on City unless authorized by City in writing. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or subcontracted by Tow Operator without the express written consent of City. Any attempt by Tow Operator to assign or subcontract the performance or any portion of this Agreement without the express written consent of City shall be invalid and shall constitute a breach of this Agreement. 5. PatenUCopvriqht Materials/Proprietarv lnfrinqement Unless otherwise expressly provided in this Agreement, Tow Operator shall be solely responsible for obtaining a license or other authorization to use any patented or copyrighted materials in the performance of this Agreement. Tow Operator warrants that any Software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary right, or trade secret right of any third party Tow Operator agrees that, in accordance with the more specific requirement below, it shall indemnify, defend and hold City and City fndemnitees harmless from any and all such claims and be responsible for payment of all costs, damages, penalties and expenses related to or arising from such claim(s), including, but not limited to, attorney's fees, costs and expenses. 6. Non-Discrimination ln the performance of this Agreement, Tow Operator agrees that it will comply with the requirements of section 1735 of the California Labor Code and not engage nor permit any Tow Operators to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Tow Operator acknowledges that a violation of this provision shall subject Tow Operator to all the penalties imposed for a violation of anti- discrimination law or regulation, including but not limited to, section 1720 er.seq. of the California Labor Code. -1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. Independent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators 12. Indemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirec¡y out of performance of this Agreement. Tow Operator's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, offtcials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect afl policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury"with coverage for premises and operations, products and completed operatioñs, -anO contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury anã property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate. 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehictes in the care, custody, and control of the Tow Operator with limits of liability of noiless than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA O0 0'i, and include coverage for all owned, hired, and non-owned automobiles òr other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodity injury and property damage. 4) ON-HOOIICARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) ClassA/B tow truck. ...... ..$120,000b) Class C tow truck.. $200,000c) ClassDtowtruck. ........$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS' LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects city, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, orhis/her designee, guaranteeing payment of losses and related investigations, - claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of covérâge, except for the Workers'Compensation policy which shall provide ten ('10) calendar days writtln notice of such cancellation, change or reduction of coverage ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, ãnd the City's Risk Division, a new certifìcate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be éndorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certifìed by the underwriter to be a true and correct copy of the original policy. This requirement shaf I survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in fufl force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement. This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests. All changes or transfers to "immediate family" must be approved by the Chief of Police, or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The "immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day{o-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies 17. Gonfidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. f 9. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4". 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee EliqibilitvVerification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and Control Act of 1986, 8 U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contrngent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Conflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operator's employees, agents, relatives, and third parties associated with accomplishing the work hereunder. Tow Operator's efforts shall include, but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City. D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party. F) Reprocurement Costs: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority 6 H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (1) upon actual delivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS) l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the peformance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. 28. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7 - B) c) demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Agreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specifìed in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written notice of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. The Parties hereto have executed this Agreement. Tire: O .^, NÐr*- e- 1- t+Print Nam Rq e Gs -ulu) TOW OPERATOR*: By:Title: Print Name:Date *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signaturemust be either the Chairman of the Board, President, or any Vice President. The second signature must be thesecretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the álternat¡ve, a singlesignature is acceptable when accompanied by a corporate document demonstrating the legal authority of i-hesignature to bind the company. By DOUGLAS T. SLOAN City Attorne Ì4- ddt"t ATTEST: WONNE SPENCE, CMC City Clerk By:: Date: Date: Date: CITY OF FRESNO, 8 / zlzz/ t + ATTACHMENT A SCOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools. The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in full force and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towins Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding tñe flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by ìaw, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the piice of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows: www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. ff an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full flnancial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. Special Operations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain w¡tñ the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a o special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Signaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The Tow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles. Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651.07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less. Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thirty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound The City will have the option to remove and/or transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement. 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for all vehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east, - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at alltimes, improved fencing and/or security patrols All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed otherwise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than 1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting. This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City. At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator. The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program. Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "Tow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program. lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or otherwise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public. The City reseryes the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City afso reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limitedto: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry, lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considereda material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard. Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all times. Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform. Dress standards are required in order to project a professional and positive image to the public. All employees must be neat, clean and well groomed in appearance. ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves, or by other means acceptable to the City. Facial tattoos of any variety are not permitted. No facial piercings shall be worn while on duty. Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC. -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a publtc roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804.9 of the CVC. Alltow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC sectionl808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E.) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement. The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) CriminalRecord A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the following offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting. Vehicle theft. Fraud. Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant. Other felony conviction The City is not required to provide any reason, rationale orfactual information in the event it elects to deny appltcation or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee. For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions. Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called. Failure to carry an identification badge will be considered a violation as stated in Section 31, "Dlsciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 et seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. Inspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the peformance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or propefty of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equipment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253,25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times. The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25-ton truck is not required equipment However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list. All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, flre extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar, covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations Winches must have visible lD tags designating the model, make, serial number, and rated capacity All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date These rates will be available for review by City personnel and/or the person for whom tow service is provided All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC. lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). Allfees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment No credit card fees will be charged pursuant to CVC section 22651.1 and CCC section 1748.1 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement. 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC. All lien transactions must be entered into the DTS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35tn) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670; 22851', 22851.1', 22851 2; 22851 3', 22851 .4: 22851.6; 22851 .8; 22851.10, 22851.12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle -15- 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towino Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B. No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a.m. through 5.00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30. All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City. The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions. These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicle This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no later than 12:00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the 15'n of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submitthe City's administrative /franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse. The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's / agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otheruvise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only authorization by the City in the DTS System. The DTS impounded vehicle. be released prior to the impound period with written System will automatically schedule the release of an 28. Release of Vehicles Vehicles may only be released through the DTS System. Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC. At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. DisciplinarvAction The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension rmposed pursuant to the terms and conditions of this Agreement The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement. Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reseryes the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement. Verbal abuse against public and/or law enforcement . Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charging rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence. Unauthorized driver responding to call . Failure to provide information or change of status on any Tow Operator employee or staff¡ Substantiated private party impound complaints. Any Felony/Misdemeanor arresto Refusal to take a rotational tow¡ Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees. Failure to properly secure storage yard o Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement. A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees. Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls. Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designeeo Unauthorizedride-a-long. Failure to respond to customers' needs. Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, ortermination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1407 and 9-1712. Notwithstanding any provision within Chapter 1, Article 4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, or a termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established. Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. - 18 - ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqy Fee: DTS Software Fee per Vehicle Towed $ Charge listed in DTS Contract and DTS System Storaqe Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storage Rates: Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p,m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times. The gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response. Citv of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189.00 Arrested / Suspended Driver $266.00 DUI Driver $450.00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -'19 - CITY OF FRESNO NON.EXCLUSIVE FRANCHISE TOW AGREEMENT FOR FRESNO POLICE DEPARTMENT This Non-exclusive Franchise Tow Agreement (TSA) is entered into effect on the 2}th day of Decembe r 2014 setforth below, at Fresno, California, between the City of Fresno, a municipal corporation (City) and Walt,s Towing,a California corporation (the Tow Operator). This Agr all att ains rules and regulations that a tow company agrees to complywith in o in the of the City of Fresno Police Department (rpol. participation inthe FPD gram is voluntary. Compliance w¡tn ált of the terms and conditions ofthe Agre ry for participating in the Tow Program. A Tow Operator, by agàeingto participate in the Tow Program, is not acting as an agent for FPD or City when performing services'unãer thisAgreement. 1. Governinq Law and Venue This Agreement shall be governed by, and construed enforced in accordance with, the laws of the State ofCalifornia excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venuefor purposes of the filing of any action regarding the enforcement or ìnierpretation of this Agreement and anyrights and duties hereunder shall be the county of Fresno, california. 2. Entire Aqreement ts exhibits, when accepted by the Tow Operator either in writing orpe der, contains the entire Agreement between the parties with respeðt toan trictions, promises, warranties or undertakings other than those sät tort¡'ion bstitutes or revisions are valid or binding oñ City unless authorized byCity in writing. 3. Amendments No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by theparties, no oral understanding or agreement not incorporated herein shall be binding on eJthe,- of ine parties;and no exceptions, alternatives, substitutes or revisions are valid or binding on City ,ñl"s authorized ny ðity inwriting. 4. Assiqnment or Sub Contractinq The terms, covenants, and conditions contained herein shall apply to the parties. Furthermore, neither theperformance of this Agreement nor any p-ortion thereof may be assigned or subcontracted by Tow operatorwithout the express written consent of City. Any attempi oy tow-Operator to assign or subcontract theperformance or any portion of this Agreement without the express written consent of cñy shall be invalid andshall constitute a breach of this Agreement. 5. Unles LL^_:_^1:_.- rator shall be solely responsible for obtaining alicense or other authorization to use any patented ighted materials in the perform"n"" of th¡,Agreement' Tow Operator warrants that any Software as modified through services provided hereunder will notinfringe u , proprietary right, or trade secret rignt of any irriro party. row opáiatoragrees th more specific requirement below, itlnatl indemnify,'defénd ano noto ðityand City m any and all such claims and be responsible for payment of all costs,damages, related to or arising from such claim(s), including, but not limited to,attorney's 6. Non-Discrimination ln the performance of this Agreement, Tow Operator a 1735 of the California Labor Code and not engage nor employment of persons because of the race, religious mental disability, medical condition, marital status, or s violation of this provision shall subject Tow Operator discrimination law or regulation, including but not limited to, section 1720 etseq of the California Labor Code. 1 7. Termination ln addition to any other remedies or rights it may have by law, City has the right to terminate this Agreement without penalty immediately with cause and either party may terminate after thirty (30) days written notice without cause, unless otherwise specified. Cause shall be defined as any breach of this Agreement or any misrepresentation or fraud on the part of the Tow Operator Exercise by City of its right to terminate the Agreement shall relieve City of all further obligation. 8. Consent to Breach Not Waiver No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 9. Remedies Not Exclusive The remedies for breach set forth in this Agreement are cumulative as to one another and as to any other provided by law, rather than exclusive; and the expression of certain remedies in this Agreement does not preclude resort by either party to any other remedies provided by law. 10. lndependent Tow Operator Tow Operator shall be considered an independent Tow Operator and neither Tow Operator, its employees nor anyone working under Tow Operator shall be considered an agent or an employee of City. Neither Tow Operator, its employees nor anyone working under Tow Operator, shall qualify for workers' compensation or other fringe benefits of any kind through City. 11. Performance Tow Operator shall perform all work under this Agreement, taking necessary steps and precautions to perform the work to City's satisfaction. Tow Operator shall be responsible for the professional quality, technical assurance, timely completion, and coordination of all documentation and other goods/services furnished by Tow Operator under this Agreement. Tow Operator shall: perform all work diligently, carefully, and in a good and workman-like manner; furnish all labor, supervision, machinery, equipment, materials, and supplies necessary therefore; at its sole expense obtain and maintain all permits and licenses required by public authorities, including those of City required in its governmental capacity, in connection with performance of the work; and, if permitted to subcontract, be fully responsible for all work performed by sub-Tow Operators. 12. lndemnification A) Tow Operator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Tow Operator, or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tow Operato/s obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or authorized volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers B) lf Tow Operator should subcontract all or any portion of the work to be performed under this Agreement, Tow Operator shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and authorized volunteers in accordance with the terms of the preceding paragraph. C) This section shall survive termination or expiration of this Agreement. 13. lnsurance A) Throughout the life of this Agreement, Tow Operator shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either (i) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guíde, or (ii) authorized by City's Risk Manager. The following policies of insurance are required: 2 5) B) 1) COMMERCIAL GENERAL LIABILITY insurance which shall be on the most current version of f nsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $2,000,000 aggregate for products and completed operations and $2,000,000 general aggregate 2) GARAGEKEEPERS LEGAL LIABILITY insurance which shall include coverage for vehicles in the care, custody, and control of the Tow Operator with limits of liability of not less than $120,000 per occurrence for property damage. 3) COMMERCIAL AUTOMOBILE LlABlLlry insurance which shall be on the most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto) with limits of not less than $1,000,000 per accident for bodily injury and property damage. 4) ON-HOOI(CARGO insurance which shall include coverage for vehicles in tow with limits of liability based on the size of the tow truck, which are as follows: a) Class A/B tow truck.. $120,000b) Class C towtruck...... ......$200,000c) Class D tow truck... . ..$300,000 WORKERS' COMPENSATION insurance as required under the California Labor Code and EMPLOYERS'LIABILITY insurance with minimum limits of $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Tow Operator shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tow Operator shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance and approved by the City's Risk Manager or his/her designee. At the option of the City's Risk Manager, or his/her designee, either: 1) The insurer shall reduce or eliminate such deductibles or self-insured retention as respects City, its officers, officials, employees, agents and volunteers; or 2) Tow Operation shall provide a financial guarantee, satisfactory to City's Risk Manager, or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted thirty (30) calendar days written notice in favor of City of policy cancellation, change or reduction of coverage, except for the Workers'Compensation policy which shall provide ten (10) calendar days written notice of such cancellation, change or reduction of coverage. ln the event any policies are due to expire during the term of this Agreement, Tow Operator shall provide a new certificate and all applicable endorsements evidencing renewal of such policy prior to the expiration date of the expiring policy(ies) to the Chief of Police, or his/her designee, and the City's Risk Division. Upon issuance by the insurer, broker, or agent of a notice of cancellation, change or reduction in coverage, Tow Operator shall file with the Chief of Police, or his/her designee, and the City's Risk Division, a new certificate and all applicable endorsements for such policy(ies). The General Liability, Automobile Liability and Garagekeepers Legal Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Tow Operator's insurance shall be primary with respect to the City, its officers, officials, employees, agents and authorized volunteers with no contribution required of City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, c) D) 3 employees and authorized volunteers. Tow Operator shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. E) The fact that insurance is obtained by Tow Operator shall not be deemed to release or diminish the liability of Tow Operator, including, without limitation, liability under the indemnity provisions of this Agreement. City shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tow Operator. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tow Operator, its principals, officers, agents, employees, persons under the supervision of Tow Operator, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. F) Upon request of City, Tow Operator shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the undenvriter to be a true and correct copy of the original policy This requ irement shall survive expiration or termination of this Agreement. G) lf at any time during the life of the Agreement or any extension, Tow Operator fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. H) lf Tow Operator should subcontract all or any portion of the work to be performed, Tow Operator shall require each subcontractor to provide insurance protection in favor of the City, its officer, officials, employees, agents and authorized volunteers in accordance with the terms of each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be on file with the Tow Operator and City prior to the commencement of any work by the subcontractor. 14. Bills and Liens Tow Operator shall pay promptly all indebtedness for labor, materials, and equipment used in performance of the work. Tow Operator shall not permit any lien or charge to attach to the work or the premises, but if any does so attach, Tow Operator shall promptly procure its release and indemnify, defend, and hold City harmless and be responsible for payment of all costs, damages, penalties and expenses related to or arising from or related thereto. 15. Chanqe of Control Tow Operator agrees that if there is a change or transfer in ownership or control of the Tow Operator's business prior to completion of this Agreement, unless such change or transfer is to "immediate family" as defined in Fresno Municipal Code (FMC) section 3-101(e) and approved in writing by the Chief of Police, or his/her designee, such change or transfer shall terminate this Agreement This includes but is not limited to changes in: Corporate Board Members, Managers, Directors, Treasurer, Trustees, or ownership interests All changes or transfers to "immediate family" must be approved by the Chief of Police or his/her designee, prior to such change or transfer in order for the Tow Operator to remain on the tow services list. Final written approval or disapproval for the change or transfer in ownership or control will be given by the Chief of Police or his/her designee. All "immediate family" members involved in the potential transfer and operation of the Tow Operator shall be required to undergo a background check, review, and "Livescan" fingerprint screening. The "immediate family" members involved in the change or transfer of ownership or control must also possess and keep current all licensing certificates and insurance as required in this Agreement. The 'immediate family" members who will operate or otherwise be legally responsible for the Tow Operator will be required to execute a new TSA. A) Tow Operator owners shall be directly involved in the day-to-day operations of their business and shall not be directly involved in the towing-related business of any other tow company on, or applicant for, the Tow Rotation List. Co-mingling of operations, business, offices, board members, and finances is strictly prohibited. B) lf terminated or suspended, Tow Operator and/or its owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination This section applies to the Tow Operator working in any capacity within any tow 4 business or operating any tow business and to the tow business even if operated under new ownership. C) Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written approval is obtained from the Chief of Police or his/her designee. 16. Force Maieure Tow Operator shall not be in breach of this Agreement caused by any act of God, war, civil disorder, employment strike or other cause beyond its reasonable control, provided Tow Operator gives written notice of the cause of the delay to City within thirty-six (36) hours of the start of the delay and Tow Operator avails itself of any available remedies 17. Confidentialitv Tow Operator agrees to maintain the confidentiality of all City and City-related records and information pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Agreement. All such records and information shall be considered confidential and kept confidential by Tow Operator and Tow Operator's staff, agents and employees. 18. Compliance with Laws Tow Operator represents and warrants that services to be provided under this Agreement shall fully comply, at Tow Operator's expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations, including, but not limited to those issued by City in its governmental capacity and all other laws applicable to the services at the time services are provided to and accepted by City. Tow Operator acknowledges that City is relying on Tow Operator to ensure such compliance (collectively Laws). Tow Operator agrees that it shall defend, indemnify and hold City and City lndemnitees harmless from all liability, damages, costs, and expenses arising from or related to a violation of Laws. 19. Pricinq The Agreement price shall include full compensation for providing all required services in accordance with the Scope of Work attached to this Agreement, and no additional compensation will be allowed therefore, unless otherwise provided for in this Agreement. Tow Operator shall pay the City Franchise Fees as listed in Attachment "8", or "City Administrative / Franchise Fees", in accordance with Paragraph 25 of Attachment "4" 20. Terms and Conditions Tow Operator acknowledges that the undersigned has read and agrees to all terms and conditions included in this Agreement. 21. Severabilitv lf any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 22. Calendar Davs Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 23. Attornev Fees lf either party is required to commence any proceeding or legal action to enforce any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable Attorney's fees and legal expenses. 24. lnterpretation This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. ln addition, each party has been represented by experienced and knowledgeable independent legal counsel of their own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each party further acknowledges that they have not been influenced to any extent whatsoever in executing this Agreement by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including California Civit Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has 5 drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the parties and this Agreement. 25. Authoritv The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitute the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 26. Emplovee Eliqibilitv Verification Tow Operator warrants that it fully complies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statutes and regulations. Tow Operator shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the lmmigration Reform and ControlAct of 1986, I U.S.C. 51324 et seq., as they currently exist and as they may be hereafter amended. Tow Operator shall retain all such documentation for all covered employees for the period prescribed by the law. Tow Operator shall indemnify, defend with counsel approved in writing by City, and hold harmless, City, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against Tow Operator or City or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 27. Additional Terms and Conditions A) Term of Agreement: This Agreement shall commence on December 28, 2014, and shall be effective for three (3) years from that date, unless otherwise terminated by City. B) Fiscal Appropriations: This Agreement is subject to and contingent upon applicable budgetary appropriations being made by the City for each year during the term of this Agreement. lf such appropriations are not forthcoming, the Agreement will be terminated without penalty. Tow Operator acknowledges that funding or portions of funding for this Agreement may also be contingent upon the receipt of funds from, and/or appropriation of funds by City. lf such funding and/or appropriations are not forthcoming, or are otherwise limited, City may immediately terminate or modify this Agreement without penalty. C) Gonflict of lnterest (Tow Operator): Tow Operator shall exercise reasonable care and diligence to prevent any actions or conditions that result in a conflict with the best interest of City. This obligation shall apply to Tow Operator, Tow Operatofs employees, agents, relatives, and third parties associated with accomplishing the work hereunder Tow Operator's efforts shall include but not be limited to, establishing precautions to prevent its employees or agents from making, receiving, providing, or offering gifts, entertainment, payments, loans, or other considerations which could be deemed to appear to influence individuals to act contrary to the best interest of City D) Tow Operator Work Hours and Safety Standards: Tow Operator shall ensure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and City safety and health regulations and laws. E) Orderly Termination: Upon termination or other expiration of this Agreement, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of execution of the Agreement. ln addition, each party will assist the other Party in orderly termination of this Agreement and the transfer of all aspects, tangible and intangible, as may be necessary for the orderly, non-disruptive business continuation of each party F) Reprocurement Gosts: ln the case of default by Tow Operator, City may procure the service from other sources and, if the cost is higher, Tow Operator will be held responsible to pay City the difference between the Agreement cost and the price paid. City may make reasonable efforts to obtain the prevailing market price at the time such services are rendered. This is in addition to any other remedies available under law. G) Authorization Warranty: Tow Operator represents and warrants that the person executing this Agreement on behalf of and for Tow Operator is an authorized agent who has actual authority to bind Tow Operator to each and every term, condition, and obligation of this Agreement and that all requirements of Tow Operator have been fulfilled to provide such actual authority. 6 28. H) Notices: Any and all notices permitted or required to be given hereunder shall be deemed duly given (l) upon actualdelivery, if delivery is by hand; or (2) upon delivery by the United States mail if delivery is by postage paid registered or certified return receipt requested mail; or (3) through electronic means such as, email or the Dispatch & Tracking Solutions Software System (DTS). l) Data - Title to: All materials, documents, data or information obtained from City data files or any City medium furnished to Tow Operator in the performance of this Agreement will at all times remain the property of City. Such data or information may not be used or copied for direct or indirect use by Tow Operator after completion or termination of this Agreement without the express written consent of City. All materials, documents, data or information, including copies, must be returned to City at the end of this Agreement. J) Usage: No guarantee is given by City to Tow Operator regarding usage of this Agreement. Usage figures, if provided, are approximate, based upon the last usage. Tow Operator agrees to supply services and/or commodities requested, as needed by City, at prices listed in the Agreement, regardless of quantity requested. K) Tow Operator's Records: Tow Operator shall keep true and accurate accounts, records, books and data which shall correctly reflect the business transacted by Tow Operator in accordance with generally accepted accounting principles. These records shall be stored at the Tow Operators principal place of business for a period of three (3) years after final payment is received by City. L) Audits/lnspections: Tow Operator agrees to permit City's authorized representative (including auditors from a private auditing firm hired by City) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance under this Agreement. The inspection and/or audit will be confined to those matters connected with the performance of the Agreement including, but not limited to, the costs of administering the Agreement. City reserves the right to audit and verify Tow Operator's records before or after final payment is made. Tow Operator agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated under this Agreement or by law. Tow Operator agrees to allow interviews of any employees or others who might reasonably have information related to such records. Further, Tow Operator agrees to include a similar right to City to audit records and interview staff of any sub-Tow Operator related to performance of this Agreement. M) Should Tow Operator cease to exist as a legal entity, Tow Operator's records pertaining to this Agreement shall be forwarded to the Chief of Police or his/her designee. Disputes-Aqreement A) The Parties shall deal in good faith and attempt to resolve potential disputes informally. 1) Tow Operator shall submit to the Chief of Police, or his/her designee, a written demand for a final decision regarding the disposition of any dispute between the parties arising under, related to, or involving this Agreement, unless City, on its own initiative, has already rendered such a final decision. 2) Tow Operator's written demand shall be fully supported by factual information, and, if such demand involves a cost adjustment to the Agreement, Tow Operator shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the supporting data are accurate and complete, and that the amount requested accurately reflects the Agreement adjustment for which Tow Operator believes City is liable. B) Pending the final resolution of any dispute arising under, related to, or involving this Agreement, Tow Operator agrees to diligently proceed with the performance of this Agreement. Tow Operator's failure to diligently proceed shall be considered a material breach of this Agreement. C) Any final decision of City shall be expressly identified as such, shall be in writing, and shall be signed by the City Hearing Administrative Officer, or Chief of Police, or his/her designee, as applicable. lf City fails to render a decision within ninety (90) days after receipt of Tow Operator's -7- demand, it shall be deemed a final decision adverse to Tow Operator's contentions. City's final decision shall be conclusive and binding regarding the dispute unless Tow Operator commences action in a court of competent jurisdiction. 29. Breach of Aqreement The failure of the Tow Operator to comply with any of the provisions, covenants or conditions of this Agreement shall be a material breach of this Agreement. ln such event the City may, and in addition to any other remedies available at law, in equity, or otherwise specified in this Agreement, undertake any of the individual actions or any combination of the following actions: 1) Afford the Tow Operator written not¡ce of the breach and ten calendar days or such shorter time that may be specified in this Agreement within which to cure the breach; 2) Suspend and/or remove Tow Operator from the rotation; 3) Terminate the Agreement immediately, without any penalty. *lf a corporation or limited liability company, the document must be signed by two corporate officers. The first signature must be either the Chairman of the Board, President, or any Vice President. The second signature must be the secretary, an assistant secretary, the Chief Financial Officer, or any assistant treasurers. ln the alternative, a single signature is acceptable when accompanied by a corporate document demonstrating the legal authority of the signature to bind the company. CITY OF FRESNO. Date: ATTEST. WONNE SPENCE, CMC City Clerk By:: Date: The Parties hereto have executed this Agreement wNr?r-l æp.9, Dyer.of APPROVEÚAS TO FORM DOUGLAS T. SLOAN 8 t z/zz/rY ATTACHMENT A SGOPE OF WORK 1. Scope of Work Tow Operator shall perform the towing, and storage of vehicles as directed by the City, and in addition, such other services as provided in this Scope of Work, and shall provide necessary storage facility, tow vehicles, labor, materials, equipment, machinery, and tools The Tow Operator shall comply with all State laws and regulations, applicable to tow units and impound, towing, storage, selling or junking of vehicles. Tow operators must follow all guidelines set forth by equipment manufactures recommendations as to their use and care of all towing related equipment. All permits and licensing fees as specified under California Vehicle Code (CVC) sections 34620 through 34624 shall be in fullforce and effect at all times during this Agreement. Any violation of this section will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. 2. Towing Services and Duties It shall be the duty of the Tow Operator, when so directed by the City, to provide prompt tow service for vehicles which are taken into custody by the City. This includes vehicles involved in collisions or disabled by any other cause, abandoned in public places or on private property. Vehicles impounded for evidence, impeding the flow of traffic, or which for any other reason, are within the jurisdiction of the FPD. As required by law, Tow Operators are to remove from the street all debris resulting from said collisions and to clean the immediate area of such street (CVC section 27700(a)(1)). lt shall also be the duty to provide for the safety and security of those vehicles and the contents thereof. These duties are inherent to the job and are to be included in the price of the basic tow bill. The tow truck operator shall provide a business card to the registered owner or driver for the vehicle being towed. The business card shall contain the name, address and phone number of the tow company as well as the link to the vehicle search system in DTS as follows. www.findmytow.com Tow truck operators and/or drivers will not be permitted to drive an impounded or recovered stolen vehicle or vehicle intended for storage from a FPD rotation call or special operation. Any exceptions must be at the direction of the FPD officer in charge of the scene and should be limited to repositioning the vehicle to allow for towing. The City has designated two (2) tow companies for evidence impound tows and no other rotation tow company shall maintain custody over these vehicles at any time. lf an officer impounds a vehicle for evidence and a non- preference rotational tow is dispatched, it is the responsibility of the tow driver to verify with the officer on scene as to whether a vehicle is to be held for evidence. lf it is determined that the vehicle is to be held for evidence, the tow driver must immediately notify the officer on scene that the company is not authorized to handle evidence impounds and an evidence tow company shall be dispatched. Tow Operator shall then contact the Tow Unit on the same business day, or within the next business day if such tow occurs after regular business hours. Acceptance of an evidence tow by a non-designated evidence tow company will result in disciplinary action and full financial responsibility for all tow and storage fees for each violation. lf terminated or suspended, Tow Operator and/or owner at the time of the suspension or termination, shall not be eligible for a rotation listing for the duration of the suspension or termination. This provision applies to the Tow Operator working in any capacity within any tow business or operating any tow business and to the tow business even if operated under new ownership. Tow Operator shall not share equipment with any other tow company on, or applicant for, the Tow Rotation List, excluding equipment which may be unavailable due to repairs or when there is a need for equipment replacement and written notice has been obtained from FPD. 3. SpecialOperations FPD conducts special operations coordinated through the Traffic Bureau throughout the year that requires tow companies at the location of the special operation. Tow companies on the Tow Rotation List that are in good standing with FPD may be invited to participate in these operations, provided they are willing to remain with the special operation until its conclusion and forfeit any rotational tow calls (FPD, California Highway Patrol, or other) received during the duration of the operation. "Good standing" shall mean that Tow Operator has not violated, or is not in violation of the terms of this Agreement, the provisions of the FMC, State, or Federal law. All special operations tows will be subject to the provisions of this Agreement. Tow Operator shall respond to a 9 special operation with a flatbed tow truck with the capability of towing (2) vehicles. No ride alongs will be allowed on any special operations unless the ride along is the Tow Owner or a Tow Driver who is in training and has been approved by FPD. 4. Signaqe and hours of Operation The storage yard or business office shall have a sign that clearly identifies it to the public as a towing service. The sign shall have letters that are clearly visible to the public from the street and must be visible at night. All storage facilities must be accessible to City personnel twenty-four (24) hours per day and seven (7) days per week. The ïow Operator will provide customer service twenty-four (24) hours per day and seven (7) days per week for the release of vehicles Tow Operator shall provide at least one person at a call station to respond and release vehicles within thirty (30) minutes. Tow Operator shall maintain all signage required pursuant to CVC sections 22850.3 and 22651 07 and include an after-hours contact phone number for Tow Operator. 5. Response Time Tow Operator shall respond to calls twenty-four (24) hours a day, seven (7) days a week, within the maximum response time limits as established by the Chief of Police or his/her designee. A reasonable response time is thirty (30) minutes or less, except during peak hours of 7:00 a.m. to 9:00 a.m. and 4:00 p m to 6:00 p.m., (Monday through Friday), when the required response time will be extended to forty-five (45) minutes or less Tow Operator shall respond with a tow truck of the class required to tow the vehicle specified by the DTS System. 6. Non-Response The Tow Operator shall update the DTS System at the time of dispatch to a tow rotation request. lf the Tow Operator is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the DTS System accordingly. lf, after accepting the call, the Tow Operator is unable to respond or will be delayed in responding, the Tow Operator shall immediately update the DTS system accordingly. To decline or refuse to respond will be considered a non-response. Each non-response will be immediately documented in the DTS System. Each non-response will be logged by the DTS System and reviewed by the City. lf the fault for the non-response is attributed to other than the Tow Operator, the Tow Operator will be placed back in the rotational list and called at the next opportunity in line. One such breach, determined to be the fault of the Tow Operator, will be grounds for written reprimand which may be subsequent to a meeting between the Tow Operator and the City. A second breach may be grounds for a (30) thitty-day suspension of this Agreement. A third violation will be considered a material breach of the Agreement and may result in immediate termination of this Agreement. ln the case of suspension or termination, all vehicles then in storage at the time of the suspension or termination remain protected under this Agreement as City's impounds and the Tow Operator is so bound. The City will have the option to remove andlor transfer stored vehicles. When a Tow Operator will be temporarily unavailable to provide services due to preplanned/scheduled activity, such as a vacation, maintenance, medical leave, etc., the Tow Operator will notify City in writing via the DTS system at least forty-eight (48) hours in advance. City reserves the right to deny these requests to maintain adequate service levels for tow operations. Failure to notify the City will be considered a non-response and a material breach of this agreement 7. StoraqeResponsibilities It shall be the duty of the Tow Operator to provide impound and other storage service for allvehicles as directed by the City. The Tow Operator shall be responsible for all vehicles, accessories and equipment thereon and all personal property therein stored by Tow Operator. lt shall be the Tow Operators' duty to protect such stored vehicles, accessories, equipment, and property against all loss or damage by fire, theft or other causes. The Tow Operator will have available for review by City personnel, all permits and proof of compliance to all local zoning, special use, conditional use and special requirements, laws and regulation. lt is the responsibility of the Tow Operator to ensure vehicles are stored in a secured facility. 8. Size and Location of Storaqe Facilitv The tow yard shall be located within the City of Fresno's "Metropolitan Area." Metropolitan area is defined as within the borders of Copper Avenue to the north, American Avenue to the south, DeWolf Avenue to the east - 10 - and Chateau Fresno to the west. Tow Operator shall be responsible for the security of vehicles and property at the place of storage. At a minimum, a six (6) foot fence or enclosed secured area is required for outside storage. A minimum of 5,000 square feet, or room for twenty (20) vehicles, shall be provided. All tow yards located with the City of Fresno shall be in compliance with the FMC, current Directors Class #208 and shall follow the current Development and Resource Management Department's Policy and Procedure C-002. lf the tow facility is located outside the City of Fresno, the tow operator is required to provide written proof that the yard is in compliance with the authorizing jurisdiction. Tow Operator is responsible for the reasonable care, custody, and control of any property contained in towed or stored vehicles. The storage facility and business office will be located at the primary storage yard and shall be maintained in a functional, clean and orderly fashion. The facility shall have a telephone, on-site fax machine and the necessary computer equipment to properly run DTS software and to send and receive email. ln the event of criminal activity at a storage facility, the City may require the Tow Operator to take measures to assist in preventing such crimes. These measures could include, but are not limited to: the yard being illuminated during darkness, with security type lighting, to such a degree that visual observation of the entire yard may be accomplished at all times, improved fencing and/or security patrols. All vehicles stored or impounded as a result of a tow ordered by the City shall be towed directly to a towing service storage lot unless the City, or in the case of a citizen's assist, a person legally in charge of the vehicle, requests that it be taken to some other location. All vehicles towed as a result of action taken by the City will be stored at the Tow Operator's principal place of business unless directed othenryise by the City's Tow Coordinator. Vehicles stored at an auxiliary storage facility will be considered a breach of this Agreement. The Tow Operator shall not remove personal property from a stored vehicle. lf the registered owner removes personal property from a stored vehicle, the Tow Operator will maintain documentation of such and will require a signed receipt from the registered owner for property released. The Tow Operator shall immediately notify the City if any contraband, weapons or hazardous materials are found in the vehicle(s). 9. Enclosed Facilitv The Tow Operator may maintain, without charge to the City or any other person, separate and enclosed garage facilities no less than '1,000 square feet of clean working space. The facility must be constructed to include a roof and at least four walls of substantial design to withstand the elements and protect the vehicles from the weather. The facility should have a concrete floor and sufficient lighting This inside facility must be located at the Tow Operator's primary storage yard. This inside facility is not required to qualify for the City's rotation, however, when inside storage is requested for a particular vehicle, the next Tow Operator in line meeting the needs of the City's request will be used. 10. DTS Requirements Tow Operator shall utilize the most recent, updated and upgraded DTS software program, to dispatch and track, via a web-based lnternet connection. Tow Operators will be required to enter the towed vehicle information as instructed by the City At no time will a vehicle be released, subject to lien, or junked from impound without all required data fields being entered into the DTS system by the Tow Operator The Tow Operator shall clearly identify and enter into DTS the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program Failure at any time to have the DTS program in full operation shall cause the immediate removal of the Tow Operator from the tow rotation and be grounds for immediate termination by City. Tow Operator must enter into a separate agreement, or license for the DTS software program with the owner of that proprietary software. The City shall not provide the DTS software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by Tow Operator of the DTS software program. This Agreement shall not be executed by the City until Tow Operator has demonstrated to the City's satisfaction compliance with the requirements set forth herein. Tow Operator shall be liable for all fees, charges, prices, rates and service charges required from DTS. DTS shall be utilized in "real time" and all entries should reflect as such. lnvoices shall be used from DTS when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only Tow Operator personnel authorized to utilize and access DTS are those that have fully complied with the provisions set forth in Section 12, "f ow Operator Personnel" of this Agreement. lf the Tow Operator is not in FULL compliance with the above stated requirement, the Tow Operator will be removed from the City towing rotation. ln the event that DTS fails to provide software services, or the City elects to utilize a new software provider, the Tow Operator will be required to use the replacement towing software system. lf that occurs, all references to DTS in this Agreement shall instead be interpreted as references to the new software program. -11 - 11. Official Notification bv Citv Reqardinq Tow Official notification by City regarding tow services is considered any form of written, email, verbal instructions or notifications received from an authorized City employee or electronic notice from the DTS program lf the Tow Operator receives verbal instructions or notifications from a City employee the Tow Operator must respond to City, by 5:00 p.m. (PST) on the next business day. 12. Tow Operator Personnel A.) Conduct The Tow Operator shall perform the services required of it in an ethical, orderly manner, endeavoring to obtain and keep the confidence of the public. At no time will the Tow Operator or its agent or any employee of the Tow Operator exhibit any of the following behavior: rudeness, or othenruise being uncooperative, argumentative, threatening, incompetent or acting in a dangerous manner with any City employee, or with any member of the public The City reserves the right to cancel an individual tow assignment, if in the opinion of the City, the Tow Operator is acting in a rude, uncooperative, argumentative, threatening, incompetent or dangerous manner. The City also reserves the right to cancel an individual tow assignment if in the opinion of the City the Tow Operator is likely to damage the vehicle for which the tow service was called. Other examples of unacceptable behavior include but are not limited to: profanity, abusive language, disconnecting telephone calls for public inquiries regarding a tow, threatening, aggressive, or assertive language, failure to provide timely information or documents in response to a public or City inquiry lack of respect to any City personnel or member of the public, destruction or damaging of evidence, failure to comply with the reasonable request of a member of the public, failure to release vehicle in a timely manner, failure to make appointment for release of vehicle during evening or weekend hours, failure to promptly be on site at time of appointment for release of vehicle during evening or weekend hours, impeding an investigation or any other conduct which the City deems unprofessional. lf the Tow Operator is found to be in violation of this conduct clause, the City will cancel the Tow Operator and request the next Tow Operator in rotation. Any such behavior as set forth above shall be considered a material breach of this Agreement and may be grounds for immediate suspension or immediate termination by the City, without penalty. B.) PersonnelAppearance Tow Operators shall be required to furnish their employees with a distinctive company uniform. Each uniform shall have the firm's name, as well as the employee's name, in a conspicuous place. The tow company's name and driver's first name shall be clearly visible at all times, meaning that protective or inclement weather outer garments must meet this standard Each employee shall have sufficient uniforms so as to maintain a neat, clean appearance at all ttmes Minimum requirements for uniforms include a shirt, long pants, and appropriate safety shoes. All drivers shall be in uniform before any towing or service operation begins. No wording, designs, photos, gestures, or anything that could be considered offensive or obscene to the general public shall be displayed by the Tow Operators or on any part of the uniform Dress standards are required in order to project a professional and positive image to the public All employees must be neat, clean and well groomed in appearance ln order to ensure a professional appearance, all tattoos must be concealed by operators while working. Personnel will be required to conceal any tattoos with gloves, collars, long sleeves or by other means acceptable to the City. Facial tattoos of any variety are not permitted No facial piercings shall be worn while on duty Drivers shall wear safety vests or reflectorized clothing that conforms to Occupational Safety and Health Administration (OSHA) requirements. Alternatively, the OSHA safety requirements may be incorporated into the uniform, jacket, or rain gear, as long as these items are worn as the outermost garment. C.) UnlawfulActivity The Tow Operator or it's employees shall not be involved, nor shall the Tow Operator or its employees become involved in any agreement or activity whether verbal, written or conveyed in any other manner, any activity or business venture which may be construed as unlawful. lf the City deems the involvement to be unlawful, the City may immediately terminate this Agreement. The Tow Operator shall not provide any direct or indirect commission, gift or any compensation to any person or public or private entity, in consideration of arranging or requesting the services of a tow truck as provided in section 12110 of the CVC -12- No Tow Operator will be involved or solicit any compensation of any kind including but not limited to involvement with any other company or business that might result in income or consideration as a result of any activity initiated by the City. An example of such a prohibited involvement could include but is not limited to: financial reimbursement by auto-body repair business for referrals, or towing directly from the scene of a collision to the auto-body shop without prior unsolicited approval or request by the registered owner, driver or insurance company representative of the damaged vehicle; kickback to or from a security company or homeowner's association for "finding" or towing a vehicle from a location, whether private property, public, off street parking facility or a public roadway. Violation of this provision shall be grounds for immediate termination by City, without penalty. D.) Personnel Licenses Tow Operators providing services under this Agreement, including tow truck drivers, dispatchers and other office personnel, will have sufficient knowledge, experience and capability to ensure safe and proper discharge of their service responsibilities. lt will be the responsibility of the Tow Operator to ensure that all of its personnel will be properly licensed in accordance with sections 12500, 12520, and 12804 9 of the CVC. All tow truck drivers and tow truck operators shall be enrolled in the "Pull Notice" program as defined in CVC section1808.1 et seq.. Drivers must complete a CHP approved Tow Operator Course every five (5) years and copies of completion of the course shall be sent to the City. All Tow Operators and personnel shall have no criminal record which would preclude them from being placed in a position of trust while in the service of a law enforcement agency or any crime listed below under the heading of "Criminal Record." E ) Fingerprints All owners and employees who have not previously submitted their "LiveScan" fingerprint samples shall submit their "LiveScan" fingerprint samples, at their own expense, through the City prior to being awarded this Agreement, for the purposes of verifying their criminal history with the Department of Justice. Failure to provide information regarding the identity of the owner, employee, or anyone else with a financial interest in the Tow Operator will result in termination of this Agreement The Tow Operator will provide the City with information regarding any change in employee status immediately and update DTS to reflect such changes. Failure to comply may result in further disciplinary action, and will be considered a breach of this Agreement. After execution of this Agreement, no person shall be employed by the Tow Operator or perform any service under this Agreement until the background record check and "LiveScan" is completed and approved by the City and said employee has received their identification badge from the City. Notwithstanding the foregoing, Tow Operators and owners that have towed for the City under the previous Tow Service Agreement and have completed a new background and "LiveScan" check will be allowed to continue to tow for the City until such time as the results of the background and "LiveScan" submissions are reviewed and approved by the City. Any employee of the Tow Operator that has left employment with said Tow Operator and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement F.) Criminal Record A conviction of anyone with a financial interest in the Tow Operator, or any employee of the Tow Operator, including but not limited to any of the folfowing offenses, may be cause for denial of application or termination of this Agreement: . Any crimes listed in California Penal Code section 290. DUI-Within 5 years of the Date of Fingerprinting . Vehicle theft. Fraud . Stolen Property. Crimes of Violence. Any felony crime relating to narcotics or any controlled substance. Any other crimes enumerated in CVC section 2432.3 - 13 - . Actively on parole or on any form of probation . Crime of moral turpitude. Sex, Arson, Narcotics Registrant . Other felony conviction The City is not required to provide any reason, rationale or factual information in the event it elects to deny application or remove any of Tow Operator's personnel from providing services for the City under this Agreement. Tow driver or employee applicants denied under this section may appeal to the Chief of Police or his/her designee. All decisions by the Chief of Police, or his/her designee, are final. ln the event the Tow Operator or employee is convicted or is under investigation, the Tow Operator may be given the opportunity to replace that employee without prejudice to the Agreement. Nothing shall prohibit the City from removing, suspending or terminating the Agreement. lt will be the responsibility of the Tow Operator to provide the City with updated information regarding any illegal activity, arrest(s) or conviction of any Tow Operator and/or employee For the purpose of this section, any conviction or plea of guilty or nolo contendre, even to any lesser-included offense, are considered convictions Failure to provide information regarding the identity of the employee, or anyone else with a financial interest in the Tow Operator will result in termination of the Agreement. Failure to provide information to the City of any information regarding the conviction of any of the above crimes may also result in termination of the Agreement G.) ldentificationBadges Each tow truck driver or employee of the Tow Operator shall wear, in plain view an identification badge, authorized and issued by the City to that employee, while on any call for service where the City is involved. lf a tow truck driver responds to a scene without his authorized name badge, the tow truck driver will be dismissed from the scene and the next Tow Operator in rotation will be called Failure to carry an identification badge will be considered a violation as stated in Section 31, "Disciplinary Action," of this Agreement. The purpose of these badges will be to identify those employees of the Tow Operator who have been fingerprinted by the City and have passed the record check by the Department of Justice. All identification badges are the property of the City and will be returned by the Tow Operator to the City within forty-eight (48) hours of an employee's separation. Tow Operator will provide a current list of all staff including drivers, dispatchers, etc. Anytime there are any changes to this list, the City is to be notified by the next business day and provided with an updated and current list. 13. Tow Operator Licensinq and Certification All licensing and certifications required by Federal, State and local authorities shall be maintained current and valid at all times as required in CVC sections: 34507.5,34600 et seq, 34620, and 12111, and sections 7231 eI seq, of the California Revenue and Taxation code. Failure to have any required license or certification, including any driver who fails to have an appropriate class of license, may be grounds for immediate termination by City without penalty. 14. lnspection All real property and improvements thereon, and all vehicle facilities, equipment and materials used by the Tow Operator in the performance of the services required herein shall be open to inspection by the City or its authorized representative, and will be subject to no less than one annual inspection. Additional inspections may be conducted without notice during normal business hours. lnspections may include, but are not limited to, all books accounts, records, reports, files, financial records, supporting documentation, including payroll and accounts payable/receivable records, and other papers or property of Tow Operator for the purpose of auditing or inspecting any aspect of performance directly related to this Agreement. ln the event that the City determines that the real property and improvements thereon are insufficient, derelict or fail to meet the requirements as called out in this Agreement, this Agreement may be terminated by City immediately, without penalty. 15. Vehicle and Equioment Requirements Tow vehicles will be maintained in compliance with sections 24605, 25253, 25300, 27700 and 27907 of the CVC. Tow vehicles will be of at least 14,000 lbs. GVWR with dual rear wheels, with the ability to tow two (2) vehicles, or a vehicle and/or a trailer. Tow vehicles must have two-way communication capabilities and the ability to communicate and connect with the DTS System at all times The Tow Operator shall have equipment capable of towing from off-road areas, towing from underground facilities, and recovery services with an adjustable boom with at least five tons of lifting capacity. ln addition to the conventional wheel lift towing capabilities, the Tow Operator shall maintain at least one or more flatbed or rollback trucks with a minimum of fifty (50) feet of cable, and the required safety equipment. Unless otherwise specified by the City, all Tow -14- Operators shall respond to a tow service request with a flatbed or rollback truck as specified above. At the discretion of the tow operator, a wrecker may be used to respond to a tow service request. lf for any reason the Tow Operator is unable to complete the tow service request with the wrecker, the Tow Operator will not be placed back on the top of the rotation list and a new Tow Operator will receive the tow service request. A 3-axle or 25{on truck is not required equipment. However, Tow Operators that possess this equipment will be placed on a heavy-duty tow rotation list All trucks must have the required emergency lighting, portable stop and tail lamps, a broom, shovel, fire extinguisher (rating 4-8, C), a utility light, reflective triangles, a large pry-bar covered trash cans with approved absorbent, rags, unlocking equipment, dollies (boom trucks), chains, and/or tie downs. Wheel lift trucks will maintain at least 100 feet of cable and all safety equipment as required by the manufacturer. Tow vehicles must have a cable winch of sufficient size and capacity to retrieve vehicles that have gone off traveled portions of roadways into inundated areas or other inaccessible locations. Winches must have visible lD tags designating the model, make, serial number, and rated capacity. All tow trucks used in City tows will be subject to a yearly inspection. This does not preclude the City from conducting random inspections throughout the year. 16. Vehicleldentification Tow vehicles shall display identification signs in compliance with section 27907 of the CVC. The Tow Operator shall not display any sign or advertising material that indicates that his tow vehicles are an official police service of the City. 17. Charqes and Fees to be collected from Reqistered Owners All rates and charges shall be conspicuously posted in the office and in all tow vehicles. These rates shall quote complete charges and fees with no additional fees to be added at a later date. These rates will be available for review by City personnel and/or the person for whom tow service is provided. All fees collected shall be itemized and invoiced in DTS in accordance to section 22651.07 of the CVC lt will be the Tow Operator's responsibility to collect his bill for service, and the City will not be responsible in any way for these charges. Storage fees will be calculated on the calendar day except the first 24-hours which is counted as a single day in accordance with California Civil Code (CCC) 3068.1 (see Attachment B). All fees listed on the DTS invoice will be received in the form of major credit card, debit card, or cash. All fees collected, both City and Tow Operator fees, must be invoiced through the DTS system prior to release and at the time of payment. No credit card fees will be charged pursuant to CVC section 22651J and CCC section 17481 for any portion of the fees. The City reserves the right to change all payment methods during the term of this agreement 18. Lien Fees At no time shall the City be charged a lien fee on a towed or impounded vehicle. No lien shall be attached to any vehicle that has been impounded by the City until after seventy-two (72) hours from the time of storage as listed in the DTS system have passed pursuantto section 22851.12 of the CVC All lien transactions must be entered into the DïS system by Tow Operator. Vehicles sold at lien sale shall abide by all laws relating to lien sales. A vehicle held in impound by the City for thirty (30) days, shall not be sold at lien until such time as is considered reasonable to allow the registered owner time to pay for and pick up the vehicle before it is sold at lien, but under no circumstances before the thirty-fifth (35th) day after storage. The Tow Operator shall abide by all applicable statutes and ordinances concerning disposal of unclaimed vehicles, including but not necessarily limited to CVC sections 22670',22851,22851.1,22851.2',228513: 22851.4: 22851.6',22851 .8; 22851.10, 22851 12 and 22852.5. As described in CVC section 22856, liability for despoliation of evidence shall not arise against the Tow Operator that sells any vehicle at, or disposes of any vehicle after, a lien sale, as long as the Tow Operator can show written proof that he was notified in writing by the City that the vehicle would not be needed as evidence in a legal action. This proof may exist in the form of an official release in the DTS System or any other written conveyance signed by a member of the City prior to the official, written release of the vehicle. - 15 - 19. Reasonableness and Validitv of Fees Fees charged to the registered owner or any other person for response to calls originating from the City shall be reasonable and not in excess of those rates charged for similar services provided in response to requests initiated by any other public agency or private person. During the term of this agreement, the City shall conduct an annual review each December of towing and storage fees of comparable cities and adjust rates set forth in Attachment B by the first week of January of the following year. 20. Towinq Operation All tows performed under this Agreement will be included in the flat rate charge as described in Attachment B No additional charges shall be charged without prior approval from the City and written notice is provided in the DTS System. Any unapproved charges received outside the DTS System will result in immediate termination of this Agreement and removal from the rotation list. The Tow Operator shall base towing charges upon the class of vehicle being towed regardless of the class of the truck used, except when vehicle recovery operations require a larger class truck. The Tow Operator may refer to the tow truck classes and weight ratings as defined by the Towing & Recovery Association of America (TRAA) vehicle identification guide. 21. Service Call Rotation and Fees The City shall establish a separate rotation list for Tow Operators willing to respond to service requests (out of gas, lockouts, tire changes, etc.) Rates for a service requests shall not exceed one-half the flat rate charge for a light duty truck response. 22. Gate Fees No gate fees may be charged between 8:00 a m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed below: New Year's Day Martin Luther King Day Presidents'Day Cesar Chavez Day Memorial Day lndependence Day Labor Day Veterans'Day Thanksgiving Day Day after Thanksgiving Christmas Day An after hours gate fee may be charged at all other times. The gate fee is not to exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occurs outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees.) The Tow Operator is responsible for assuring that proper gate fees are charged in accordance with this section. Over charging gate fees will be considered a major violation as outlined in Section 30 All towing and storage fees charged by the Tow Operator are the responsibility of the vehicle's owner and are not the responsibility of the City The exception would be evidentiary impounds made at the direction of City personnel. 23. Cancelled Tow The City shall not be liable to pay the Tow Operator or anyone else any charge or other fee for a call that does not result in a chargeable service being rendered by Tow Operator ("Dry Run"). The cancelled Tow Operator shall be placed back on the top of the rotation list and will receive the next tow in rotation. 24. Towed in Error ln the event the City determines that an error has occurred in impounding a vehicle, it shall be immediately released to the registered owner without charge and the Tow Operator will be placed back on the top of the rotation list and will receive the next tow in rotation. ln addition, the Tow Operator will be given one extra tows on the rotation list. Additional extra tows may be given at the discretion of the Tow Unit. 25. Release Fees California law authorizes the recovery of funds required to enforce certain provisions of the CVC and promote traffic safety on public roadways. This authorization falls under CVC section 22850.5 and further authorized by -16- City resolutions These resolutions are open to public view at the City and/or City offices and are on file with the City's Traffic Bureau. The Tow Operator will collect fees on the behalf of the City from the registered owner, legal owner or agent of an impounded car. A City administrative / franchise fee will be charged for the release of a vehicle that has been impounded by the City. Fees will be established by an independent consulting firm to determine the City's costs associated with impounding vehicles in accordance with CVC sections 22850.5 and 12110(b). All vehicles impounded will be charged an administrative / franchise fee for the release of the vehicte. This fee will be established and attached to each vehicle in the DTS System. The City's administrative fees will be collected at the time of the release by the Tow Operator. The Tow Operator will pay the City's franchise fees equivalent to the City's administrative fees for every vehicle that is not picked up by the owner or agent. The Tow Operator will pay the City's administrative / franchise fees for every City vehicle that was towed during the preceding month and will pay the City no laterthan'12:00 p.m. on the 15'n of the following month, regardless of the disposition of the vehicle. ln the event that the 15th of the month falls on one of the State recognized holidays listed in Section 22 above, or a weekend, the City's administrative/franchise fee must be paid by 12:00 p.m. on the following business day. Tow Operators who fail to submit the City's administratrve / franchise fees to the City by the 15'n day of each month will be immediately suspended from rotation until all fees are received, and will be subject to appropriate disciplinary action and civil recourse The City will keep a strict accounting of these fees through the DTS System and frequent audits will take place to ensure accurate and timely payment of collected City administrative / franchise fees. The fee will be listed as an item on the owner's i agent's DTS contractor invoice. 26. UnauthorizedRelease Unauthorized release of an impounded vehicle, accidental or otherwise, having evidentiary value, not officially released by the City, and determined to be the fault of the Tow Operator, will result in the issuance of a major violation as set forth in this Agreement. The determination of such fault will be the responsibility of the City 27. Release of Multi-Dav lmpounds A vehicle impounded with a multiple day hold may only be released prior to the impound period with written authorization by the City in the DTS System. The DTS System will automatically schedule the release of an impounded vehicle 28. Release of Vehicles Vehicles may only be released through the DTS System Once the DTS System authorizes the release of a stored or impounded vehicle, it is the Tow Operator's responsibility for the vehicle's release. The Tow Operator is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850 3 of the CVC At the time of release, the Tow Operator shall have the registered owner, legal owner, or authorized representative taking possession of the vehicle sign a release indicating that they are properly licensed and insured to drive a motor vehicle. 29. Disciplinarv Action The Chief of Police, or his/her designee, shall take disciplinary action against Tow Operators for violations investigated and sustained. Unless otherwise noted, the Chief of Police, or his/her designee, will determine the period of suspension and shall retain discretion regarding the length of any suspension imposed pursuant to the terms and conditions of this Agreement The City shall retain record of violations for at least the term of this Agreement. 30. Maior violations Major violations include any chargeable offense under Federal, State, Local Law and significant violations of this Agreement Such violations shall result in suspension or immediate termination of this Agreement. The Chief of Police, or his/her designee, reserves the right to impose longer periods of suspensions or immediate termination, if deemed appropriate in his/her sole discretion. The Chief of Police, or his/her designee, reserves the right to remove a Tow Operator from the tow rotation during the investigation of a major violation. A reinstatement from suspension for a major violation will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. ln addition, a major violation may also result in the Tow Operator's employee being removed from participation in this Agreement. Examples of major violations include, but are not limited to: . Physical assault, against public and/or law enforcement . Verbal abuse against public and/or law enforcement . Resisting arrest. Tow Truck Driver under the influence of alcohol or illegal drugs -17 - . Charglng rates that exceed those listed in Attachment B . Vehicle released without authorization . Unauthorized access to storage yard . Theft . Mishandling of vehicles stored as evidence . Unauthorized driver responding to call o Failure to provide information or change of status on any Tow Operator employee or staff . Substantiated private party impound complaints . Any Felony/Misdemeanor arrest . Refusalto take a rotational tow . Failure to utilize the DTS System for all City towing related matters . Repeated late or nonpayment of City franchise fees . Failure to properly secure storage yard ¡ Failure to obey a lawful order by law enforcement 31. Minor violations Minor violations will be given to the Tow Operator in the form of a documented warning for the first violation. The second violation will be in the form of a documented reprimanded and a one hundred dollar ($'100.00) fine. Repeated minor violations during the term of the Agreement may be treated as a major violation, and the Tow Operator will be suspended or terminated from this Agreement A reinstatement from suspension will result in a five hundred dollar ($500.00) fee. Suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee. Examples of minor violations include, but are not limited to: . Late payment of City franchise fees . Tow truck drivers not wearing City issued l.D. cards/ proper uniform . Unauthorized arrival time in excess of thirty (30) minutes, or forty-five (45) minutes during peak hours. Repeated rejection of dispatched calls . Other violations of this Agreement not considered a major violation by the Chief of Police or his/her designee. Unauthorizedride-a-long. Failure to respond to customers' needs . Failure to maintain proper equipment. Failure to clean up at a collision scene . Vehicle code infractions 32. Hearinq/Appeal Tow Operator must have a legal existing interest in the tow operation or entitlement subject to the City order, citation, decision or determination to have standing to appeal a decision by the Chief of Police or his/her designee. An appeal that fails to identify the appellant's standing may be rejected as defective. ln the event FPD serves Tow Operator with disciplinary action amounting to anything less than a suspension resulting from a minor violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension for thirty (30) days or less resulting from a minor or major violation, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Chief of Police, or his/her designee, through the Tow Unit Upon receipt of a written request for an appeal, and at the discretion of the Chief of Police, or his/her designee, the Tow Operator may be allowed to continue rotational tows until the final disposition of the appellate hearing. ln the event FPD serves Tow Operator with disciplinary action amounting to a suspension in excess of thirty (30) days, or termination of the TSA, the Tow Operator may request a hearing within fifteen (15) calendar days by submitting an appeal in writing to the Administrative Hearing Officer by way of the City Manager's Office. The written appeal shall be in compliance with FMC sections 1-407 and 9-1712. Notwithstanding any provision within Chapter 1, Article4 of the FMC, any person who appeals a suspension in excess of thirty (30) days, ora termination of the TSA shall not be entitled to placement on the Tow Rotation List or to participate in tows until such time as any appeal hearing has been concluded and the Administrative Hearing Officer finds that no grounds for a suspension in excess of thirty (30) days, or a termination of the TSA has been established Tow Operator's remedy shall be limited to reinstatement on the tow rotation list in such case and no other compensation or consideration will be allowed. 18 ATTACHMENT B TOW FEES Flat price per vehicle per call: Light Duty Tow/Flatbed $ 184.00/Each Medium Duty Tow $ Average CHP Rates Apply Heavy Duty Tow $ Average CHP Rates Apply Water Recovery: $ Average CHP Rates Apply Technoloqv Fee: DTS Software Fee per Vehrcle Towed $ Charge listed in DTS Contract and DTS System Storage Rates: Passenger cars $ 45.00/per day Motorcycles $ 45.00/per day Trucks or Trailers $ Average CHP Rates Apply lnside Storaqe Rates. Passenger cars $ 55.00/per day Motorcycles $ 55.00/per day Trucks or Trailers $ Average CHP Rates Apply Gate Fee: No gate fees may be charged between 8:00 a.m. through 5:00 p.m. Monday through Friday, excluding State recognized holidays as listed in the Agreement. An after hours gate fee may be charged at all other times ïhe gate fee shall not exceed fifty percent (50%) of the flat rate charge for a light duty tow and may be charged to the vehicle's owner for releases or personal property recovery that occur outside normal business hours (excluding lien fees, storage fees, taxes, or other additional fees). Non-tow service calls (out of gas, lockouts, and flat tires) shall not exceed one-half the flat rate charge for a light duty truck response City of Fresno Administrative / Franchise Fees: Vehicle Collision Blocking a Roadway $ 60.00 lllegally Parked / Abandoned Vehicle $116.00 Unlicensed Driver / Expired Registration $189 00 Arrested / Suspended Driver $266.00 DUI Driver $450 00 All fees listed on the DTS invoice will be received in the form of major credit card, debit card or cash. No credit card fee will be charged pursuant to CVC section 22651.1 and CCC section 1748.1. -19-