VEHICLE TOW SERVICE FRANCHISE AGREEMENT
This Vehicle Tow Service Franchise Agreement ("Agreement") is made between the City of Marysville ("CITY"), and _______________________________ Towing Service ("OPERATOR"), on _______________, 2023.
RECITALS
A. CITY requires tow services in the exercise of its police powers necessary or appropriate to the general welfare of CITY's citizens.
B. CITY finds and determines that the unauthorized parking of vehicles that cannot be removed constitutes a public nuisance and public emergency affecting the property, public safety, and welfare of the citizens and residents of the CITY.
C. Pursuant to the terms of Chapter 10.18 of Title 10 of CITY's Municipal Code authorizing the granting of nonexclusive franchises to tow operators, CITY has granted OPERATOR a nonexclusive franchise. Pursuant to such franchise, OPERATOR desires to be placed on CITY's ROTATION TOW LIST permitting OPERATOR to provide tow services expeditiously to clear stopped, standing, parked, and hazardous vehicles from public streets, roads, and private property. These services shall be provided on a rotating basis with other similarly qualified OPERATORS.
D. The parties have negotiated the terms pursuant to which OPERATOR will provide such services, and have herein reduced such terms to writing, effective September 1, 2023 (at 00:00 am) and ceasing on August 31, 2025 (at 23:59 pm) – unless otherwise stated in writing by the City.
E. Chapter 10.18 of Title 10 of the CITY’s Municipal Code establishes towing regulations governing the provision of nonconsensual police towing services and authorizes the granting of nonexclusive franchises for such services. The terms and conditions of Chapter 10.18 shall be applicable for the entire term of this Agreement, including the requirement set forth in Section 10.18.170 requiring OPERATOR's payment of a franchise fee.
TOW SERVICE AGREEMENT
NOW, THEREFORE, CITY and OPERATOR, in consideration of OPERATOR's promise to be available to provide the scope of services as set forth herein, and CITY's promise to place OPERATOR on its ROTATION TOW LIST, hereby agree as follows:
1. INCORPORATION OF RECITALS
The recitals set forth above, and all defined terms set forth in such recitals and in the introductory paragraph preceding the recitals, are hereby incorporated into this Agreement as if set forth herein in full.
2. DEFINITIONS
A. "OPERATOR" shall refer to ______________________________ Towing Service and its employees, located at
, and shall not refer to or include any other towing
company or service other than OPERATOR.
B. "ROTATION TOW LIST" shall refer to the list of OPERATORS maintained by CITY who are available to provide tow services expeditiously to clear stopped, standing, parked, and hazardous vehicles from public streets, roads, and private property, as directed by CITY, on a rotating basis.
C. CITY's “regular business hours” as referenced herein refer to the hours of 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding state holidays.
3. ROTATION TOW LIST
A. Maintenance of List and Dispatch Calls. CITY shall maintain a ROTATION TOW LIST. CITY shall place OPERATOR on its
ROTATION LIST and dispatch OPERATOR to provide services covered by this Agreement.
B. Order of Dispatch Calls. OPERATOR shall be dispatched by CITY in accordance with its sequential place on the ROTATION TOW LIST. A dispatch call to OPERATOR shall constitute one turn on the ROTATION TOW LIST, and OPERATOR shall thereafter be moved to the bottom of the ROTATION TOW LIST, even if OPERATOR: (1) fails to answer the telephone, (2) is unable to provide a service, (3) is unable to respond, or (4) the call is canceled due to excessive response time. Under any of these circumstances, CITY shall dispatch the next operator in order on the ROTATION TOW LIST. If two or more operators are required at the same incident, the CITY's Incident Commander shall have the discretion to assign operators to the vehicles to be towed.
C. Temporary Removal from List. If OPERATOR does any of the following, OPERATOR shall be removed from the ROTATION TOW LIST for twenty-four (24) hours:
i. OPERATOR is unable to provide a timely response (as set forth in Section 4.A.); or
ii. OPERATOR is unable to provide storage space in response to a call; or
iii. OPERATOR dispatches a tow truck other than one owned by OPERATOR (for example, if OPERATOR has a parent,
subsidiary, or co-owned company and dispatches a tow truck from such parent, subsidiary, or co-owned company).
D. Canceled Calls. If CITY determines that OPERATOR, after being dispatched, is not needed, and the call is canceled by CITY, up to and including arrival at the scene, OPERATOR shall not charge for responding, and the OPERATOR shall be placed back on the top of the ROTATION TOW LIST.
E. Assistance with Vehicles Blocking a Roadway. When OPERATOR is called to a collision scene where a vehicle(s) is blocking a roadway, a CITY police officer may request OPERATOR's assistance in clearing the roadway. In such a case, OPERATOR may be requested to move the vehicle to a safe location, as directed by the officer. OPERATOR shall not charge CITY for this assistance. The assistance provided shall not change the order of OPERATOR's placement on the ROTATION TOW LIST.
F. List Disputes. If OPERATOR questions or disputes any aspect of the ROTATION TOW LIST, OPERATOR shall not contact the Marysville Police Communications but shall refer all questions and disputes to the CITY’s Operations Lieutenant, Adam Barber during regular business hours.
G. CITY Reservation of Authority. Nothing in this Agreement shall be construed to restrict or prohibit CITY from conducting its own towing operations or maintaining its own towing storage yard, either in lieu of, or in addition to the franchise authorized pursuant to this Agreement or any franchise awarded pursuant to Chapter 10.18.
4. RESPONSE TO CALLS
A. Response Required. OPERATOR is expected to respond to dispatch calls 24 hours per day, seven days per week, within the maximum response time of thirty (30) minutes. At the time of dispatch, OPERATOR shall advise CITY if OPERATOR is either unable to respond or meet the maximum response time.
B. Notification of Complaints. OPERATOR shall notify CITY in writing within seventy-two (72) hours of any complaints made to OPERATOR regarding: (1) the performance of any service in connection with towing or storage, (2) rates or fees charged, or (3) any claims or legal action served upon or instituted against OPERATOR relating to services provided by OPERATOR pursuant to this Agreement.
5. TOW TRUCK REQUIREMENTS AND CLASSIFICATIONS
The following requirements are included in this Agreement in an effort to protect the safety and welfare of the citizens and residents of the CITY.
A. Tow Truck Capabilities and Equipment. OPERATOR shall equip and maintain tow trucks covered under this Agreement in accordance with the provisions set forth in the California Vehicle Code, Title 13 of the California Code of Regulations (Title 13), the specifications contained in this Agreement, and in a manner consistent with industry standards and practices. All tow trucks shall have recovery capabilities, wheel lift capabilities, and a boom meeting the specifications contained in this Agreement. An OPERATOR who has a car carrier is exempt from the recovery, wheel lift, and boom capability requirements; however, the car carrier must be an additional unit. Class D tow trucks used exclusively for salvage and recovery operations are not required to possess underlift capabilities.
B. Proof of Inspection. OPERATOR has, and shall maintain, proof that all service vehicles have been inspected by and meet California Highway Patrol standards.
C. Gross Vehicle Weight Rating and Safe Loading Requirements. A violation of the Gross Vehicle Weight Rating (GVWR) and safe loading requirements of a tow truck shall result in the immediate suspension of OPERATOR from the ROTATION TOW LIST. Such violations may include exceeding the tow truck’s GVWR, front axle weight rating, rear axle weight rating, maximum tire weight ratings, or not maintaining fifty (50) percent of the tow truck’s unladen front axle weight on the front axle when towing. The suspension shall remain in effect until CITY has conducted an inspection and concluded that OPERATOR is in compliance.
D. Classes of Tow Trucks. OPERATOR shall maintain a minimum of two (2) tow trucks, as specified in this Section 5.D., one of which shall be a Class A truck, as defined in Section 5.D.1.
i. Class A - Light Duty
OPERATOR shall maintain a minimum of one tow truck, which has a manufacturer’s GVWR of at least 10,000/14,000 pounds. ii. Class B - Medium Duty
a. Class B tow trucks shall have a GVWR of at least 19,501 pounds. The truck shall be equipped with air brakes and a tractor protection valve or device and be capable of
providing and maintaining continuous air to the towed
vehicle.
b. Class B tow trucks that are not equipped with portable tow dollies 24 hours per day, 7 days per week, will not be
allowed to operate on the ROTATION TOW LIST.
iii. Class C - Heavy Duty
Class C tow trucks shall have a GVWR of at least 33,000 pounds.
The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle. iv. Class D - Super Heavy Duty
a. Class D tow trucks shall have a GVWR of at least 50,000 pounds. The truck shall be equipped with air brakes and must be capable of providing and maintaining continuous air to the towed vehicle.
b. This class of tow truck should be used exclusively for salvage and recovery operations.
E. Auxiliary Equipment. To properly and safely tow and service the wide variety of vehicles being operated on the highway, a towing procedure may require the use of auxiliary equipment specifically designed for this purpose. OPERATOR shall maintain auxiliary equipment and use it when appropriate.
6. TOW DRIVERS
A. Driver Requirements. OPERATOR shall ensure that tow truck drivers responding to calls initiated by the CITY are qualified and competent employees of OPERATOR’s company and have not been convicted of any of the categories of crimes outlined in section 7.E. of this Agreement.
OPERATOR shall ensure that the tow truck drivers are trained and proficient in the use of the tow truck and related equipment, including but not limited to, the procedures necessary for the safe towing and recovery of the various types of vehicles serviced through CITY rotation. Tow truck drivers shall be at least eighteen (18) years of age and shall possess the proper class license and certificates for the towed and towing vehicle.
Class A licenses must be endorsed to allow operation of special vehicle configurations and/or special cargoes. All drivers shall complete and sign the Tow Operator/Driver Information Sheet, attached hereto as Attachment B. Failure of OPERATOR to satisfy any of the requirements set forth in this section shall be cause for suspension from inclusion on the ROTATION TOW LIST. The suspension shall remain in effect until OPERATOR has presented proof to CITY that its driver(s) are qualified and competent.
B. List of Drivers. OPERATOR shall provide a current list of drivers to CITY upon execution of this Agreement by OPERATOR. OPERATOR shall maintain a current list of drivers and shall notify CITY upon any change in driver status, including the addition or deletion of any drivers.
An updated list shall be provided to CITY within seven (7) calendar days of any change in driver status, including either the addition or deletion of a driver. On or before September 1, 2023, OPERATOR shall provide an updated and current list of drivers to CITY for the 2023-2025 term of this Agreement and shall continue to maintain and update this list pursuant to the terms set forth in this Section of the Agreement.
7. DEMEANOR AND CONDUCT
A. Compliance with Law. OPERATOR shall at all times comply with federal, state, and local laws and ordinances, including but not limited to Chapter 10.18 and 5.04.020 of the CITY's Municipal Code.
B. Unacceptable Conduct. OPERATOR shall refrain from any of the following conduct in performing services pursuant to this Agreement:
i. Rude or discourteous behavior;
ii. Lack of service, selective service, or refusal to provide service, which OPERATOR is/should be capable of performing;
iii. Any act of sexual harassment or sexual impropriety; iv. Unsafe driving practices;
v. Exhibiting any objective symptoms of alcohol and/or drug use; vi. Appearing at the scene with the odor of an alcoholic beverage emitting from the OPERATOR/tow truck driver's breath or displaying objective symptoms of drug use. The OPERATOR/tow truck driver shall submit to a preliminary alcohol screening test or a blood test upon demand of CITY.
C. Traffic Violations. In the event CITY becomes aware of a minor traffic violation committed by OPERATOR, CITY shall advise OPERATOR of said violation. CITY may terminate this Agreement pursuant to Section 14 if OPERATOR commits three minor traffic violations (including failure to stop, speeding, expired registration) within any twelve-month period or if OPERATOR is determined to be at fault in any vehicular accident.
D. Suspicion of Criminal Activity. Should CITY suspect that OPERATOR has engaged in criminal activity, CITY shall conduct an investigation and/or assist the lead investigating agency, and, if warranted, request prosecution.
E. Convictions. If OPERATOR is convicted of any of the following categories of crimes during the term of this Agreement, such conviction shall be grounds to terminate this Agreement pursuant to Section 14:
i. Theft or embezzled vehicle;
ii. Fraud related to the towing business;
iii. Stolen or embezzled property;
iv. Crime(s) of violence;
v. Drug-related offense(s);
vi. Misdemeanor or Felony driving while under the influence of alcohol and/or a drug;
vii. Moral turpitude
F. Arrests/Charges. In the event OPERATOR is arrested and charged for a violation of any of the above categories of crimes specified above in Section 7E. OPERATOR may be suspended from inclusion on the ROTATION TOW LIST until the case is adjudicated.
G. No Offers or Payment of Gratuities to CITY Personnel. OPERATOR shall not pay or offer to pay gratuities of any kind to CITY personnel.
Any requests for gratuities made by any CITY personnel shall not be honored by OPERATOR, its employees or agents, and shall be immediately reported to CITY.
H. Conduct-Related Complaints. All CITY-related tow service complaints received by CITY against OPERATOR shall be accepted and investigated in a fair and impartial manner. OPERATOR shall be notified of the results of any CITY investigation.
8. STORAGE FACILITY
A. Sufficient Storage. OPERATOR shall maintain sufficient storage facilities and/or spaces to meet needs of CITY-related calls for service.
B. Location of Storage Facilities.
i. Preservation of Public Safety. As set forth in paragraph 8.B.2. below, the parties agree that CITY may regulate the location of OPERATOR's primary storage facility and that the reasons for this requirement include, but are not limited to the following:
a. A disabled motor vehicle in traffic creates a safety hazard, and CITY is obligated to act quickly to remove or cause the removal of disabled vehicles from CITY streets,
b. CITY is obligated to ensure the safe removal of disabled vehicles from CITY streets,
c. CITY seeks to reduce the distance of tows in order to ensure safe removal of disabled vehicles from CITY
streets,
d. CITY has a limited number of police officers; and in order to protect public safety, CITY seeks to avoid reducing
police presence within CITY limits when officers are
required to travel to storage facilities for towing-related purposes; and
e. CITY seeks to avoid requiring vehicle owners to travel great distances and into unknown, possibly unsafe areas, in order to retrieve their vehicles.
2. Location of Primary Facility. OPERATOR agrees to maintain at least one (1) storage facility as set forth in Attachment A, attached hereto and incorporated herein. In the interest of the preservation and protection of public safety in the CITY, CITY finds that OPERATOR’s primary storage facility does not require CITY police officers to be outside CITY limits for excessive periods of time and that OPERATOR’s primary storage facility is located at such a distance from CITY as to not compromise the safe removal of disabled vehicles from CITY streets. When possible,
OPERATOR's primary storage facility should be at the same location as OPERATOR's business address. If not at the same location, there shall be no charge for any additional distance traveled to and from a secondary location. Upon request of the vehicle's owner and/or a person having a legal entitlement to the vehicle and/or property stored, said vehicle and/or personal property shall be released at OPERATOR's primary storage facility or place of business.
3. Prior Approval of Additional Storage Facilities. Prior to the utilization of any secondary storage facilities, or any storage facilities that were not listed on Attachment A, OPERATOR shall furnish the address (es) of any such storage facilities to CITY and obtain CITY’s approval. Storage facilities owned by OPERATOR, and shared with another operator, shall only be approved if the other operator charges for the space exclusively on a flat monthly rate basis rather than a vehicle-by-vehicle basis, or combination thereof. Facilities shared by OPERATOR with another operator shall be physically separated from each other and secured separately.
C. Required Signs
i. Towing Service. OPERATOR’s place of business 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. The sign shall be visible at night.
ii. Business Hours. OPERATOR's business hours shall be posted in plain view to the public. If OPERATOR’s office is staffed with only one employee, it may be closed for one hour at lunch. A sign shall be posted with the reason for closure. The sign shall display a telephone number which, upon calling, will result in an immediate response to release property or vehicles.
iii. Fees. OPERATOR shall display in plain view at all cashiers’ stations, a sign as described in Section 3070 of the California Civil Code, disclosing all storage fees and charges in force, including the maximum daily storage rate.
D. Employee and/or Agent Training. OPERATOR shall properly train its employees to conduct business transactions related to towing, storage, and release of vehicles/property.
E. Security. OPERATOR shall be responsible for the security of vehicles and personal property at the place of storage. NO WAIVER, HOLD
HARMLESS AGREEMENT, OR OTHER SIMILAR RELEASE
AND/OR INDEMNIFICATION AGREEMENT SHALL BE REQUIRED
BY OPERATOR AS A CONDITION TO THE RELEASE OF A
VEHICLE TOWED TO AND STORED AT THE PLACE OF
STORAGE. A fenced or enclosed area shall be provided. OPERATOR is responsible for the reasonable care, custody, and control of any personal property contained inside towed or stored vehicles.
F. Removal of Personal Property. OPERATOR shall not remove personal property from a stored or impounded vehicle unless (i) such property is given to the owner of the vehicle or the owner's agent and (ii) the vehicle has not been impounded for evidence or investigation. If OPERATOR returns personal property to the vehicle owner or the owner's agent, OPERATOR shall provide a receipt, with a copy placed in the stored vehicle. "Personal property" as used herein refers to items that are not affixed to a vehicle. OPERATOR shall receive prior approval from CITY before removing any personal property from a vehicle that has been impounded for evidence or investigation.
i. Requests by Owner/Authorized Agent. Personal property from a stored vehicle shall be released upon request of the vehicle owner or authorized agent. Responses to such requests are mandatory on weekends, holidays, and outside OPERATOR's regular business hours, provided the vehicle’s current owner and/or authorized agent are available for return of personal property. Payment for an after-hours release of personal property may be required at the time of the release. The maximum hourly charge for nonbusiness hours releases shall be one-half the hourly tow rate charged for initially towing the vehicle. Upon receipt of such requests, response to the office and/or storage facility, as applicable, shall be within the time frame required for a CITY Class A tow, as set forth in Section 4.A. ii. Release of Cargo. Cargo shall be released upon demand of the carrier or pursuant to a court order.
G. Release of Vehicles.
i. Payment of Fees. OPERATOR shall release impounded vehicles provided that OPERATOR (a) receives all applicable fees due it from the registered owner or owner's authorized agent (subject to the rate limitation specified in Section 9.A.) and (b) the registered owner or owner's authorized agent pays an administrative fee, pursuant to Vehicle Code section 22850.5 and Resolution No. 2017-11, adopted by the City Council on February 21, 2017. ii. Responding to Requests to Release Vehicles. OPERATOR shall respond to any requests for the release of vehicles on weekends, holidays, and any other time outside of OPERATOR's regular business hours when requested by the current registered owner or owner’s authorized agent. Upon receipt of such requests, response to the office and/or storage facility, as applicable, shall be within the time frame required for a CITY Class A tow.
H. Sales of Vehicles. OPERATOR shall be responsible to facilitate and properly conduct a lien sale pursuant to the California Vehicle Code. i. Report Required. A report shall be made to the CITY by OPERATOR on a quarterly basis and specifically on September 1, December 1, March 1, and June 1 of each year of this Agreement of the impoundment or storage of any vehicle pursuant to this Agreement. This report shall be made on a form entitled "Marysville Police Department Notice of Disposition of Stored Vehicles." The form shall report the sale price of the vehicle.
I. Compliance with Law. OPERATOR shall at all times be responsible for complying with the provisions contained in Division 11, Chapter 10, Article 2, commencing with Section 22850 of the California Vehicle Code.
J. Maintenance of Records. Records pertaining to stored, impounded or sold vehicles shall be maintained and available for inspection for a period of four (4) years from the date of the service provided. All such records shall be available to CITY for review in accordance with Section 10 of this Agreement.
9. RATES/FEES
The following rate requirements apply to CITY-initiated tow services when tow is performed without the prior consent or authorization of the owner of the vehicle, or owner's authorized agent.
A. Rates/Fees. OPERATOR’s list of retail hourly rates, fees for special operations (as applicable), and fees for inside and outside storage are attached hereto as Attachment A.
B. Reduction of Rates. OPERATOR may propose lowering its rates at any time by submitting a new list of rates to CITY. Such new rates, if approved by CITY, shall supersede the previous rates set forth in Attachment A, and shall require an amendment to this Agreement.
C. Approved Rate Schedule to be kept in Tow Vehicle. The approved schedule of rates charged by OPERATOR shall be stored in OPERATOR's tow truck(s), and shall be presented upon demand to the person(s) for whom the services are being provided, their agents, or any CITY police officer at the scene.
D. Towing Fees. OPERATOR shall base towing charges upon the class of vehicle being towed, regardless of the class of truck used, except when vehicle recovery operations require a larger class truck. The rate for towing shall be computed from portal to portal. Time expended shall be charged at a rate not to exceed the DEPARTMENT-approved hourly rate.
Once the time attributable to the minimum charge (outlined below) is exceeded, any additional time expended shall be billed at the approved hourly rate, in no more than one-minute increments. There shall be no additional charges for mileage or labor. Applicable minimum charges are as follows:
i. Minimum Charge When Service Does Not Result in Storage of Vehicle. OPERATOR may charge up to a thirty (30) minute minimum per call for any service or tow which is performed when the vehicle driver or agent is present, and the vehicle is not stored at the direction of an officer.
ii. Tow Resulting in Storage of Vehicle. OPERATOR may charge up to a one (1) hour minimum per call on responses which result in storage of a vehicle at the direction of an officer.
iii. Canceled Service. If service has begun and is canceled by CITY, charges shall not exceed one-half (½) of the regular towing charge for the actual time expended on the call.
iv. Fees for Services When Rate Not Previously Submitted. If OPERATOR performs a service for which a required rate was not previously submitted and approved by CITY, OPERATOR shall only charge the approved hourly rate set forth in Attachment A for the applicable class of vehicle.
E. Payment of Fees. The parties understand and agree that CITY shall not be responsible for the payment of fees to OPERATOR and that the vehicle owner (or authorized agent) shall be solely responsible for paying all applicable fees set forth in this Section 9.
F. Overcharging Customers. Intentionally overcharging customers shall be cause for suspension or termination of OPERATOR from inclusion on the ROTATION TOW LIST. The suspension will remain in effect until OPERATOR has presented proof to the CITY that reimbursement has been made to the aggrieved customer.
G. Franchise Fees. The OPERATOR shall pay to the CITY during the term of this Agreement, the sum of TWO THOUSAND DOLLARS ($2,000.00) per year as a Franchise Fee for the costs of the CITY to administer the franchise tow services program. OPERATOR has the option of paying the CITY for both years included in this Agreement on or before September 1, 2023 (FOUR THOUSAND DOLLARS ($4,000.00)) or pay for each year individually. If OPERATOR elects to pay the CITY for each year individually, then OPERATOR shall pay the CITY the sum of TWO THOUSAND DOLLARS ($2,000.00) on or before September 1, 2023 for the year beginning September 1, 2023 and ending August 31, 2024 AND pay to the CITY the sum of TWO THOUSAND DOLLARS ($2,000.00) on or before September 1, 2024 for the year beginning September 1, 2024 and ending August 31, 2025.
10. INSURANCE
A. OPERATOR shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by the OPERATOR, its agents, representatives, or employees.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if OPERATOR has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $2,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $2,000,000 per accident for bodily injury or disease.
4. Professional Liability, Garagekeepers and On-Hook Towing Insurance appropriate to the OPERATOR’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
If the OPERATOR maintains broader coverage and/or higher limits than the minimums shown above, the CITY requires and shall be entitled to the broader coverage and/or higher limits maintained by the OPERATOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The CITY, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL and professional liability policies with respect to liability arising out of work or operations performed by or on behalf of the OPERATOR including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the OPERATOR’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the OPERATOR’s insurance coverage shall be primary insurance primary coverage at least as broad as ISO CG 20 01 04 13 as respects the CITY, its officers, officials, employees, and volunteers. Any insurance or selfinsurance maintained by the CITY, its officers, officials, employees, or volunteers shall be excess of the OPERATOR’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the CITY.
Waiver of Subrogation
OPERATOR hereby grants to CITY a waiver of any right to subrogation which any insurer of said OPERATOR may acquire against the CITY by virtue of the payment of any loss under such insurance. OPERATOR agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the CITY has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the CITY. The CITY may require the OPERATOR to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or CITY.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the CITY.
Verification of Coverage
OPERATOR shall furnish the CITY with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to CITY before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the OPERATOR’s obligation to provide them. The CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Subcontractors
OPERATOR shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that CITY is an additional insured on insurance required from subcontractors.
Special Risks or Circumstances
CITY reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
B. Duty to Maintain Coverage. Failure of OPERATOR to maintain the minimum insurance requirements set forth herein shall immediately nullify this Agreement.
11. INDEMNIFICATION
OPERATOR specifically agrees to indemnify, release, defend (by counsel reasonably satisfactory to the City Attorney), and hold harmless CITY, its officers, agents, and employees from and against any and all actions, claims, demands, judgments, suits, losses, expenses including attorneys' fees, damages, and liabilities resulting from injury or death of a person or injury to property, arising out of or in any way connected with the performance of this Agreement, however caused, regardless of any negligence of the CITY, whether active or passive, excepting only such injury or death as may be caused by the sole negligence or willful misconduct of the CITY, and regardless of the merit or outcome of a proceeding arising out of, or in any manner connected with, any or all of the operation or services authorized pursuant to this Agreement and Chapter
10.18 of CITY's Municipal Code. OPERATOR shall pay all costs that may be incurred by CITY in enforcing this indemnity, including reasonable attorneys' fees.
12. BUSINESS RECORDS
A. Service Records. OPERATOR shall maintain records, including but not limited to invoices, pertaining to all services provided pursuant to this Agreement for a period of at least two (2) years plus the current term of this Agreement. The records shall be maintained at OPERATOR’s place of business. Invoices shall include a description of each vehicle, nature of service performed, date the vehicle was towed, start time, end time, total time spent on the tow, date vehicle was released, total time the vehicle was stored with the company, location of call, itemized cost of towing and storage, the tow truck driver’s name, and truck used.
B. Other Required Records. OPERATOR shall also maintain business records relating to personnel, insurance, personnel taxes, payroll, applicable operating authorities, local operating authorities, lien sale actions, Federal Communication Commission licensing, and non-CITY tows.
C. Inspection of Records. CITY may inspect all OPERATOR records with or without notice during OPERATOR's regular business hours. Failure of OPERATOR to comply with this requirement will result in suspension of OPERATOR from inclusion on the ROTATION TOW LIST until
OPERATOR has complied with the inspection requirement.
D. Copies of Records. OPERATOR shall permit the CITY to make copies of business records at OPERATOR's place of business, or to remove business records for the purpose of reproduction, at OPERATOR's option.
CITY shall provide a receipt for any original records removed from OPERATOR's place of business.
13. TRANSFER AND ASSIGNMENT
The transfer or assignment of OPERATOR's franchise is prohibited without the prior consent of the City Council, as set forth in Section 10.18.160 of the CITY's Municipal Code. Pursuant to that section, the consent of the City Council shall be subject to any terms and conditions as the City Council may prescribe.
14. SUSPENSION AND TERMINATION OF AGREEMENT
A. Suspension. CITY may suspend OPERATOR's franchise, precluding it from being included on the ROTATION TOW LIST, for any violation of this Agreement pursuant to Section 10.18.150 of the CITY's Municipal Code and until such time as OPERATOR can satisfactorily demonstrate its compliance with all terms of this Agreement or such other longer period of time as authorized by Section 10.18.150. Upon completion of a term of suspension from inclusion on the ROTATION TOW LIST, OPERATOR shall comply with all terms and conditions of this Agreement prior to being placed back on the ROTATION TOW LIST.
B. Termination for Cause. CITY may terminate this Agreement, and the nonexclusive franchise granted by CITY to OPERATOR pursuant to Section 10.18.140 of the CITY's Municipal Code, as it may be amended from time to time.
C. Forfeiture of Franchise Fee. OPERATOR understands that pursuant to Section 10.18.170 of the CITY's Municipal Code, in the event of either suspension or termination of a franchise, OPERATOR shall forfeit any franchise fee paid to CITY and waives any and all claims or rights to collect back from CITY any amounts collected by CITY pursuant to Chapter 10.18 of CITY's Municipal Code.
15. COLLUSION
A. OPERATOR shall not conspire, attempt to conspire, or commit any other act of collusion with any other operator for the purpose of secretly, or otherwise, establishing an understanding regarding rates or conditions to this Agreement that would bring about any unfair condition which could be prejudicial to CITY, the motoring public, or other operators.
B. A finding by CITY that OPERATOR has been involved in collusion shall immediately terminate this Agreement, and OPERATOR shall be disqualified from eligibility for the ROTATION TOW LISTS for two years.
16. ANNUAL MEETINGS
CITY may conduct one annual meeting with OPERATOR to discuss issues concerning the ROTATION TOW LIST. If CITY holds such a meeting, OPERATOR shall be required to attend. CITY shall give OPERATOR ten (10) days written notice of these meetings.
17. ADVERTISING
OPERATOR shall not display any sign or engage in any advertisement indicating an official or unofficial connection with CITY.
18. TERM OF AGREEMENT AND APPLICATION FEE
The OPERATOR shall pay an Application Fee to apply to be a Franchisee of the CITY in the sum of TWO HUNDRED FIFTY DOLLARS ($250.00). This Agreement commences on the date of execution by the City ("Effective Date"), subject to Section 25 and shall expire two years from the Effective Date at 23:59:59. The Application Fee shall be a one-time fee in conjunction with this Agreement and not payable for the 2024 year of this Agreement.
19. SERVICE OF NOTICES AND OTHER COMMUNICATIONS
Except as otherwise specifically provided in this Agreement, any notice or communication required or permitted to be served on a party hereto, may be served by personal delivery to the party or the office of the party identified below.
Service may also be made by mail, by placing first-class postage affixed thereto, and addressed as indicated below, and depositing said envelope in the United States mail to:
CITY OPERATOR
City of Marysville See address in Definition of Operator Attn: City Manager in Section 2.A.
526 C Street
Marysville, CA 95901
20. INDEPENDENT CONTRACTOR
OPERATOR, in performing services herein specified, shall act as an independent contractor and shall have control of its work and the manner in which it is performed. OPERATOR shall be free to contract for similar services to be performed for other employers while it is under contract with CITY.
OPERATOR is not considered to be an agent or employee of CITY and is not entitled to participate in any pension plan, medical, or dental plans, or any other benefit provided by CITY for its employees.
21. COSTS AND ATTORNEYS' FEES
If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
22. GOVERNING LAW AND CHOICE OF FORUM
This Agreement shall be administered and interpreted under California law as if written by both parties. Any litigation arising from this Agreement shall be brought in the Consolidated Municipal and Superior Court of Yuba County.
23. CONFLICT OF INTEREST
OPERATOR shall exercise reasonable care and diligence to prevent any actions or conditions which could result in a conflict with CITY's interest. During the term of this Agreement, OPERATOR shall not accept any employment or engage in any consulting work which creates a conflict of interest with CITY or in any way compromises the services to be performed under this Agreement.
OPERATOR shall immediately notify CITY of any and all violations of this Section upon becoming aware of such violation.
24. NONDISCRIMINATION.
A. OPERATOR shall not discriminate in the conduct of the work under this Agreement against any employee, applicant for employment, or volunteer because of race, color, creed, religion, national origin, sex, age, marital status, sexual orientation, medical condition, or physical or mental disability.
B. OPERATOR shall comply with all federal and state anti-discrimination and civil rights laws.
C. OPERATOR agrees to post in conspicuous places, available to all employees and applicants for employment, notices that OPERATOR shall provide an atmosphere for employees, clients, and volunteers that is free from harassment or discrimination on the bases set forth in subsection 25(a).
25. COMMENCEMENT OF PERFORMANCE
Unless otherwise specified herein, OPERATOR shall commence performance of its duties under the terms of this Agreement upon receipt of a written notice to proceed from CITY and shall thereupon work diligently and continuously to provide all the required services and activities described herein.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties and shall not be modified except in writing executed by all parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
Dated: _____________________ By: _________________________________ Jim Schaad, City Manager
City of Marysville
Dated: ______________________ By: _________________________________ _________________________________
Approved as to Form:
________________________________________
City Attorney