The criteria to use in determining the safe towing limits for a tow truck are:
a. The total weight of the tow truck, including the lifted load, must fall within the manufacturer’s GVWR and not exceed either the Front or Rear Axle Weight Ratings (FAWR/RAWR).
b. The tow truck must meet all applicable local, state and federal standards, regulations and laws.
c. For proper steering and braking, the front axle load must be at least 50% of its normal or unladen weight after the load is lifted.
v. Identification Label
Each piece of towing equipment shall have a label or identification tag permanently affixed to the equipment in a prominent location to identify the manufacturer, serial number, model and rated capacity when applicable.
vi. Recovery Equipment Rating
The basic performance rating of the recovery equipment is the weight the equipment can lift in a winching mode when the boom is static at a 30-degree elevation with the load lines vertical and the lifting cables sharing the load equally, measured with a live load (weight or load cell). a. The structural design of the recovery equipment must have a higher load capacity than the performance rating(s).
b. Winches shall conform to or exceed the specifications set forth by the Society of Automotive Engineers (SAE) Handbook, SAE J706.
c. All ratings for cable and chain assemblies are for the undamaged assembly condition. All cable and chain assemblies shall be the same type, construction, and rating as specified by the Original Equipment Manufacturer (OEM) for the equipment. vii. Safety Chains:
Safety chains shall be rated at no less than the rating specified by the OEM. #19..
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11 viii. Control/Safety Labels:
All controls shall be clearly marked to indicate proper operation as well as any special warnings or cautions.
ix. Wire Rope (Cable):
Wire rope shall be maintained in good condition. Only wire rope with swaged ends with metal sleeves in the loops shall be approved for use on CITY generated tows. Wire rope is not in good condition when it is stranded, knotted, crushed, excessively rusty, kinked, badly worn, when there are two or more wires broken in lay length, or when there is other visible evidence of loss of strength.
x. Class A – Light Duty: For the purposes of this Agreement, a Class A tow truck is defined as a tow truck that has a manufacturer’s GVWR of at least 14,000 pounds. xi. Class B – Medium Duty: For the purposes of this Agreement, a Class B tow truck is defined as a tow truck with a GVWR of at least 26,001 pounds. The tow 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.
xii. Class C- Heavy Duty: For the purposes of this Agreement, a Class C tow truck is defined as a tow truck with a GVWR of at least 48,000 pounds. The tow truck shall be equipped with air brake and a tractor protection valve or device, and be capable of providing and maintaining continuous air to the towed vehicle.
xiii. Special Equipment: For the purpose of this Agreement, Special Equipment used by Class C Heavy Duty tow truck is defined as equipment needed to properly and safely tow or recover a wide variety of vehicles that necessitate equipment specifically designed for such a purpose.
C. All tow trucks and special equipment utilized by FRANCHISEE to provide CITY generated nonconsensual tow services shall pass a California Highway Patrol (CHP) Level One inspection annually. All special equipment shall be accounted for during the annual inspection. FRANCHISEE shall notify the Tow Administrator of the date and time of their scheduled CHP inspection as soon as practicable, and no later than two (2) weeks prior to the scheduled inspection date.
D. An inspection sticker will be issued by the Modesto Police Department Franchise Tow Administrator for each tow truck once the tow truck has passed CHP inspection. FRANCHISEE shall place the Modesto Police Department inspection sticker on the exterior windshield, upper left hand corner. Failure to display a valid inspection sticker shall, at a minimum, be deemed a failure to provide adequate service and may at the discretion of the officer or agent on scene result in the tow being cancelled. Storage lots/facilities will also receive a bi-annual inspection by the Modesto Police Department at no additional cost to the FRANCHISEE.
E All tow trucks shall maintain a broom, shovel, reflective triangles, fire extinguisher and a covered container with a minimum of 5 gallons of absorbent at all times.
F. FRANCHISEE hereby allows the Modesto Police Department to inspect any and all storage lots/facilities, used to store CITY generated tows, business office(s), and all equipment owned by FRANCHISEE at any time and for any reason, with or without notice. FRANCHISEE shall not utilize a tow truck on a CITY generated tow that has not been inspected and issued a valid inspection sticker by the Modesto Police Department.
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12 G. All tow trucks shall be clearly marked with the FRANCHISEE’S business name, address and telephone number on both sides of the vehicle FRANCHISEE shall not display any sign or engage in any advertisement indicating an official connection with the CITY or the Modesto Police Department; (e.g., “Official Modesto Police Tow,” “Approved by MPD,” etc.). This will not preclude the Chief of Police, or his designee, from implementing a system of marking and/or identifying particular tow trucks as having passed a Modesto Police Department inspection or as being certified as a FRANCHISEE for CITY generated tows.
H. Towed vehicles shall be loaded, secured and transported in compliance with this Agreement and all applicable local, state and federal rules, regulations and laws. Any violation of local, state or federal rules, regulations or laws, including, but not limited to a violation of the GVWR, safe loading requirements or a violation of the equipment requirements shall, at a minimum, be deemed a failure to provide adequate service.
I. It is the responsibility of the FRANCHISEE to provide a sufficient number of tow trucks to meet all the terms and conditions of this Agreement. The number of tow trucks listed in this Agreement is a minimum. It is the FRANCHISEES responsibility to determine the number and type of tow trucks required to fulfill all the requirements of this Agreement.
14. TOW MANAGEMENT SOFTWARE PROGRAM REQUIREMENTS
A. FRANCHISEE shall utilize the most recent, updated and upgraded tow management software program, to dispatch and track, via a web-based Internet connection. FRANCHISEE 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 tow management software program by the FRANCHISEE. The FRANCHISEE shall clearly identify and enter into tow management software program the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program.
B. Failure at any time to have the tow management software program in full operation shall cause the immediate removal of the FRANCHISEE from the tow rotation and be grounds for immediate termination by the City. This does not include technical issues that occur from the tow management software and/or internet provider.
C. FRANCHISEE must enter into a separate agreement, or license for the tow management software program with the owner of the proprietary software. The City shall not provide the tow management software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by the FRANCHISEE of the tow management software program. This Agreement shall not be executed by the City until the FRANCHISEE has demonstrated to the City’s satisfaction compliance with the requirements set forth herein. FRANCHISEE shall be liable for all fees, charges, prices, rates and service charges required from tow management software program.
D. The tow management software program shall be utilized in “real time” and all entries should reflect as such. Invoices shall be used from the tow management software program when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only FRANCHISEE personnel authorized to utilize and access the tow management software program are those that have fully complied with the provisions set forth in Section 8, “Tow Driver’s Permit / Identification Badges” of this Agreement. If the FRANCHISEE is not in FULL compliance with the above stated requirement, the FRANCHISEE will be removed from the City towing rotation. Third party #19..
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13 dispatch call center personnel shall be exempt from the completion of the background process to utilize the tow management software program.
E. In the event that the current tow management software program fails to provide software services, or the City elects to utilize a new software provider, the FRANCHISEE will be required to use the replacement towing software system. If that occurs, all references to the tow management software program in this Agreement shall instead be interpreted as references to the new software program.
15. TOWING AND STORAGE CHARGES
A. The following schedule reflects the maximum rates established for services or materials in connection with any vehicle towed pursuant to a CITY generated non-consensual tow which includes but is not limited to the following.
i. Towing of all vehicles impounded by the CITY for investigation, as evidence in a criminal case, asset forfeiture or vehicles towed under the CVC including, but not limited to, CVC Section 14607.6 (vehicle forfeiture);
ii. Towing of vehicles involved in accidents, and/or stalled vehicles obstructing traffic, and/or vehicles illegally parked, and/or vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or vehicles whose driver has been arrested and/or detained and cannot drive the vehicle, and/or vehicles under the 30-day impound authority including, but not limited to, CVC Section 14602.6, and/or vehicles with five (5) or more outstanding parking citations;
iii. Towing of all vehicles necessitating special procedures to ascertain vehicle identification numbers, VIN tows, in compliance with requirements of the CVC; iv. Towing of any abandoned vehicle, inoperative vehicle, or abated vehicle, from any street, alley, highway, or any other private or public property in the CITY pursuant to the MMC and CVC including, but not limited, to MMC 3-2.1006 or CVC 22669 respectively; v. Towing any other vehicle or vessel as may be ordered by any police officer, police employee, or any other employee or agent of the CITY who is properly authorized to order such tow. This shall include, but is not limited to, any vehicle that is submerged, either wholly or in part. This shall also include, but is to, the removal and storage of any abandoned vessel from city streets/property, whether or not said vessel is attached to a trailer. vi. Towing trailers, boats, motor homes, etc. (ie) Trailer Towing Class A; Ball Hitch B. MAXIMUM CHARGES
Time expended on a CITY generated tow shall be charged at a rate not to exceed the rates set forth hereinafter. There shall be no additional charge(s) for towing after 5 p.m., weekend tows, holiday tows, use of a dolly or any other equipment, mileage and labor, which includes, but is not limited to, crane charges, winching and recovery from areas not accessible to the tow truck.
FRANCHISEE shall collect all towing and storage charges from the vehicle owner unless otherwise stated in this Agreement.
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14 Tow Fees
Year 1
Class A tow (GVWR – 14,000 pounds) $245.00
Class B tow (GVWR – 26,001 pounds) $400.00
Class C tow (GVWR – 48,000 pounds) $550.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $125.00 (any vehicle towed to MPD) Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 2
Class A tow (GVWR – 14,000 pounds) $250.00
Class B tow (GVWR – 26,001 pounds) $405.00
Class C tow (GVWR – 48,000 pounds) $560.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $130.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 3
Class A tow (GVWR – 14,000 pounds) $255.00
Class B tow (GVWR - 26,001 pounds) $410.00
Class C tow (GVWR – 48,000 pounds) $570.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $135.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
In the event that CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for towing shall be:
Year 4
Class A tow (GVWR – 14,000 pounds) $260.00
Class B tow (GVWR – 26,001 pounds) $415.00
Class C tow (GVWR – 48,000 pounds) $575.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $140.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 5
Class A tow (GVWR – 14,000 pounds) $265.00
Class B tow (GVWR – 26,001 pounds) $420.00
Class C tow (GVWR – 48,000 pounds) $600.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $145.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
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15 Additional Charge for 2nd tow truck required for removal of a vehicle. $75.00 (Must have direct approval by MPD officer on scene and must be itemized on the invoice.) Storage Fees:
Year 1
Outside Daily Storage Fee ………………….……...$75.00
Inside Daily Storage Fee……………………………$80.00
Class B/C Storage Fee…………………….. …….. $85.00
After business hours gate fee……………… …….. $100.00
Year 2
Outside Daily Storage Fee ………………………... $80.00
Inside Daily Storage Fee………………………….. $85.00
Class B/C Storage Fee…………………….. …….. $90.00
After business hours gate fee……………… …….. $100.00
Year 3
Outside Daily Storage Fee………………………... $85.00
Inside Daily Storage Fee…………………………. $90.00
Class B/C Storage Fee…………………………… $95.00
After business hours gate fee……………… …….. $100.00
In the event that the CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for storage fees shall be:
Year 4
Outside Daily Storage Fee………………………... $90.00
Inside Daily Storage Fee…………………………. $95.00
Class B/C Storage Fee…………………………… $100.00
After business hours gate fee……………… …….. $100.00
Year 5
Outside Daily Storage Fee………………………... $95.00
Inside Daily Storage Fee…………………………. $100.00
Class B/C Storage Fee…………………………… $105.00
After business hours gate fee……………………… $100.00
City of Modesto Vehicle Release Fee:
Illegal Parker / Abandoned Vehicle $120.00
Unlicensed Driver / Expired Registration $160.00
Suspended / Revoked Driver / Arrested Driver $250.00
DUI Driver $450.00
14602.7 CVC Seized Vehicles $450.00
The above rates represent the maximum a FRANCHISEE may charge on a CITY generated nonconsensual tow. A FRANCHISEE is not precluded from charging less when deemed appropriate. No FRANCHISEE, or their employee or agent, shall refer to any rate as the minimum required or set by CITY.
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16 C. Time expended in excess of sixty (60) minutes on-scene may be charged in one-minute increments at a rate of $90.00 per hour and shall be properly documented on the FRANCHISEE’S invoice.
These additional service fees may be charged only under the following conditions or circumstances:
i. When directed to “stand-by” by an authorized CITY employee or agent. “Stand-by” fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number.
ii. Necessary accident and/or recovery operations and when directed and approved by an authorized CITY employee or agent. This fee is the responsibility of the registered owner and shall be listed on the invoice with the name of the CITY employee or agent authorizing this charge.
iii.Special Equipment fees for Heavy Duty Rotation Tows: Pre-Authorization is required from the officer in charge of the scene and must be itemized on the invoice and all pricing shall follow what is on file with the California Highway Patrol related to their tow agreement program.
iv. When directed to tow a vehicle back to the Modesto Police Department for “Evidence” outside of the City of Modesto city limits.
D. Lock out fees: When directed by an authorized CITY employee or agent to unlock a vehicle. Lock out fees may be charged at a rate of $55.00 per vehicle. Lock out fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number. (Ex. FRANCHISEE is called out to only unlock a vehicle so a search warrant can be executed.) Lock out fees cannot be charged in addition with towing fees. This type of call will count as the FRANCHISEE’s rotation call.
E. The schedule of rates charged by FRANCHISEE shall be available in the tow truck, and shall be presented upon demand to the person(s) for whom the non-consensual tow services were provided or his/her agent at the scene.
F. Vehicles stored twenty-four (24) hours or less shall be charged for no more than one-day storage.
Each day of storage thereafter shall be calculated by calendar day (Civil Code Section 3068.1).
G. If a request for a non-consensual tow is cancelled by the CITY or vehicle’s owner/agent prior to the FRANCHISEE taking possession of the vehicle, there shall be no charge to the CITY or to the vehicle owner by the FRANCHISEE
H. FRANCHISEE may charge a fee for lien sale preparations in compliance with California Vehicle Code Section 22851.12. All lien preparations and/or sales performed by FRANCHISEE shall be done in strict compliance with all applicable laws. All forms shall be accurate and complete.
I. Notwithstanding any other provision of this Agreement to the contrary, any violations of sections 15(A) through 15(G) shall, at a minimum, be deemed a failure to provide adequate service and a material breach of this Agreement, and shall constitute grounds for up to immediate termination of this Agreement.
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17 J. FRANCHISEE shall furnish a fully itemized billing to the vehicle owner or agent at the time of payment and/or upon request of the vehicle owner or agent. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
K. FRANCHISEE shall accept a valid bank credit card or cash tendered by the registered owner, legal owner or the owner’s agent claiming the vehicle for payment of towing and/or storage (CVC Section 22651.1). Appropriate credit card equipment shall be located at the primary business location and available for immediate processing from each tow truck. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service L. A record of all vehicles towed by FRANCHISEE under this Agreement shall be retained by the FRANCHISEE and shall be readily available for inspection and/or transcription or copying at the primary business location of the FRANCHISEE for a minimum of three (3) years. Failure to retain and provide complete and accurate records upon request of the CITY shall, at a minimum, be deemed a failure to provide adequate service. All records shall contain the following information i. Date and time vehicle towed
ii. Modesto Police Department Case Number
iii. License Plate/Vehicle Identification Number
iv. Date and time of vehicle release
v. Year, Make and Model of Vehicle
vi. Copy of Modesto Police Dept. Vehicle Release (if applicable) vii. Date Lien Filed (if applicable)
viii. Date Lien Sale (if applicable)
ix. All Lien Documents (if applicable)
x. All DMV paperwork (if applicable)
M. FRANCHISEE shall post the Modesto Police Department case number on the windshield of any and all vehicles towed and stored by CITY. Failure to do so shall at a minimum be deemed a failure to provide adequate service.
N. A trailer with a vessel as a load (e.g. boat, motorcycle, jet ski,) shall be considered one vehicle for the purposes of the maximum rate allowed for tow and storage.
16. RELEASE OF VEHICLES
An authorized Modesto Police Department employee will authorize the release of a vehicle through the tow management software program. Once the tow management software program authorizes the release of a stored or impounded vehicle, it is the FRANCHISEE’s responsibility for the vehicle’s release. The FRANCHISEE is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC.
17. RELEASE OF MULTI-DAY IMPOUNDS
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18 A vehicle impounded with a multiple day hold (ex: 30-day hold) may only be released prior to the impound period with written authorization by the City in the tow management software program. The tow management software program will automatically schedule the release date of an impounded vehicle.
18. UNAUTHORIZED RELEASE
Unauthorized release of an impounded vehicle, accidental or otherwise, not officially released by the City, and determined to be the fault of the FRANCHISEE, will result in the issuance of a violation as set forth in this Agreement.
19. RESPONSE / RESPONSE TIMES
A. FRANCHISEE shall respond to a dispatch order for a CITY generated tow and be on-scene within thirty (30) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, a community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request tow services. The dispatcher shall record the time of dispatch into the incident history. The dispatcher’s computer entry record shall be the official time piece for the time of dispatch. If the tow truck arrives on scene after the thirty (30) minute requirement, the dispatcher or the officer on scene shall log the time of arrival into the incident history. The officer’s or dispatcher’s computer entry record shall be the official time piece for the time of arrival of the tow truck.
Failure of the FRANCHISEE to respond to a call with necessary towing equipment (i.e. flat bed, conventional rig etc.) at the designated point of the tow within thirty (30) minutes may, at the discretion of the officer on scene result in the FRANCHISEE being cancelled. Three (3) failures by the FRANCHISEE to respond to a call at the designated point of tow within thirty (30) minutes in a calendar year, commencing April 13, 2014, shall result in a failure to provide adequate service
Exception: Tows requested off the Over Weight Vehicle List shall respond to a dispatch order and be on scene within forty-five (45) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request such tow services. Three (3) failures by the FRANCHISEE to respond to a tow request from the Over Weight Vehicle List and furnish a tow truck capable of towing the vehicle at the designated point of tow within forty-five (45) minutes shall be deemed a failure to provide adequate service.
B. Any officer or CITY employee may at his/her discretion cancel a tow that in his/her opinion is unable to provide the necessary equipment to safely tow the vehicle.
C. FRANCHISEE shall maintain a phone line dedicated to Stanislaus Regional 911. Said phone line will be staffed twenty-four (24) hours a day, seven (7) days a week, including weekends and holidays. If the FRANCHISEE fails to answer the dedicated phone, they will be passed and fall to the bottom of the list. Three (3) failures by the FRANCHISEE to answer their designated phone line in a calendar year, commencing ___________, 2017, shall result in a failure to provide adequate service.
20. NON-RESPONSE
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19 The FRANCHISEE shall update the tow management software program at the time of dispatch to a tow rotation request. If the FRANCHISEE is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the tow management software program accordingly. If, after accepting the call, the FRANCHISEE is unable to respond or will be delayed in responding, the FRANCHISEE shall immediately update the tow management software program 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 tow management software program and reviewed by the City. Three (3) failures to respond to a City generated tow in a calendar year, commencing ____________, 2022, shall result in a failure to provide adequate service.
21. ROTATION TOW LIST
A. The CITY will make a good faith effort to provide an even distribution of work among the FRANCHISEES. A list shall be established for non-consensual towing of all vehicles with a GVWR of 10,000 pounds or less. FRANCHISEE agrees to the rotation system established by CITY.
B. A separate list (Over Weight Vehicle List) will be established for non-consensual towing of vehicles with a GVWR of 10,001 pounds or more. FRANCHISEES who own or lease a tow truck with a minimum GVWR of 26,001 pounds may be placed on the Over Weight Vehicle List on a voluntary basis. However, once placed on the Over Weight Vehicle List FRANCHISEE shall give thirty (30) calendar days written notice to the Franchise Tow Administrator in order to be removed from the Over Weight Vehicle List.
C. This Agreement applies to non-consensual towing as defined in this Agreement. Nothing contained herein shall be construed to regulate consensual tows.
D. CITY reserves the right to request any tow company, regardless of its position on the rotation tow list.
22. AUDITING OF CHARGES AND SERVICES
A. The CITY reserves the right to audit all records, charges, and/or services provided by FRANCHISEE pursuant to this Agreement. CITY’s duly authorized representative shall have access to and the right to examine, transcribe, and/or copy, during business hours, as defined in Section 10 (B) (i), any and all reports, records, documents, and/or files necessary in order to audit and verify charges and services provided by FRANCHISEE under this Agreement. A complete record of all vehicles towed by FRANCHISEE pursuant to this Agreement, including, but not limited to; date and time of tow, Modesto Police Department case number, license plate number, vehicle identification number, date and time of release, year, make and model of vehicle, copy of Modesto Police Department vehicle release (if applicable), all lien and sale documents (if applicable) and vehicle disposition, shall be readily available for inspection at the primary business location of the FRANCHISEE and provided to CITY promptly upon request, and shall be retained for a minimum of three (3) years.
23. RESPONSIBILITY
A. FRANCHISEE shall be responsible for the protection of all CITY generated towed and/or stored vehicles in its possession until the vehicle has been released to its owner, or disposed of through #19..
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20 the legal process, and shall be responsible for safeguarding all articles or property left in the towed and/or stored vehicle.
B. FRANCHISEE shall release personal property from a towed/stored vehicle at the request of the vehicle owner or his/her agent, subject to the below listed exceptions. (Personal property is considered to be items, which are not affixed to the vehicle; i.e. papers, cell phones, pull out stereos, clothes, luggage, tools, cargo, etc.) EXCEPTION: No personal property shall be released from vehicles impounded by CITY for evidence, investigation, asset forfeiture or vehicle forfeiture without prior authorization from the towing officer or the Tow Franchise Administrator.
C. Any vehicle towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) and stored by the FRANCHISEE shall be stored at the primary storage facility and shall not be moved until authorized by the Chief of Police, the Tow Franchise Administrator or their designee. The need for inside storage shall be indicated on the tow sheet. Vehicles towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) shall not be lien sold until such time as the Modesto Police Department Tow Franchise Administrator provides the FRANCHISEE with a written release of the vehicle.
D. FRANCHISEE shall not release any vehicle that is marked as an “Agency Hold” on the Vehicle Report without a the release in the tow management software program and/or signed Modesto Police Department Vehicle Release form.
E. FRANCHISEE shall ensure that all debris and fluids are cleared from the scene of a CITY generated tow prior to leaving the scene.
24. COMPLIANCE WITH THE LAW
A. FRANCHISEE and its tow truck driver(s) and employees must be in compliance with all terms and conditions of this Agreement and all applicable federal, state, and local laws, rules, and regulations which are in force or become effective during the franchise period which, in any manner, affect towing and storage of vehicles, including, without limitation, the requirement that any person who drives a tow truck for FRANCHISEE is properly licensed and permitted and that all tow trucks meet any and all applicable Vehicle Code requirements.
B. In the event that FRANCHISEE is cited, arrested, charged, or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, FRANCHISEE may be immediately suspended or terminated at the discretion of the Chief of Police. FRANCHISEE shall notify the Tow Administrator within seventy-two 72 hours of any citation, arrest or conviction of the FRANCHISEE.
C. In the event that FRANCHISEE’s employee is cited, arrested and/or charged and/or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, notwithstanding any provision of this Agreement to the contrary, the employees Tow Driver Permit may be immediately suspended or revoked. FRANCHISEE shall #19..
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21 notify the Tow Administrator within seventy-two (72) hours of FRANCHISEE becoming aware of any such citation, arrest, charging or conviction.
D. In the event that any FRANCHISEE employee is cited for any two (2) infractions while operating a tow truck within a rolling 12-month period, the employee’s tow driver’s permit may, at the discretion of the Chief of Police, be suspended or terminated. The FRANCHISEE shall notify the Tow Administrator within seventy-two (72) hours of becoming aware of any such citation having been issued to an employee.
E. Nothing in Paragraph 19 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
25. FAILURE TO PROVIDE ADEQUATE SERVICE/DISCIPLINARY ACTION A. Except as otherwise provided in this Agreement, FRANCHISEE’S failure to meet any of the terms and conditions of this Agreement shall be deemed a failure to provide adequate service.
Any failure to provide adequate service is a violation of the terms of this Agreement and shall result in the following disciplinary action unless otherwise stated in this Agreement:
i. First violation within a calendar year commencing with the start date of the agreement, ________, 2022, Written Notice via certified mail
ii. Second violation within any calendar year commencing _______, 2022 Written Warning via certified mail.
iii. Third violation within any calendar year commencing _______, 2022, thirty (30) Day Suspension.
a. Upon serving a suspension of any length the FRANCHISEE must pay a reinstatement fee of five hundred dollars ($500.00). The suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee through the Franchise Tow Coordinator.
B. Nothing herein shall be deemed to prohibit the Chief of Police, or his designee, from imposing an immediate suspension and/or termination on any FRANCHISEE and/or employee(s) whose conduct, in the opinion of the Chief of Police, or his designee, is considered to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement.
C. Nothing in Paragraph 20 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
26. FRANCHISEE’S REVIEW/APPEAL
A. FRANCHISEE may request a review of a violation within ten (10) calendar days of receipt of the notice of violation by submitting a request in writing to the Administrative Services Supervisor. If a review is requested by FRANCHISEE, it shall be done as soon as practicable by the Administrative Services Supervisor or his/her designee. FRANCHISEE shall be notified in writing of the Administrative Services Supervisor’s decision(s) within ten (10) calendar days of #19..
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22 the date of completion of the review. The Administrative Services Supervisor’s decision on review of the violation shall be final.
B. Following receipt of a notice of suspension, FRANCHISEE may appeal the suspension by submitting a request in writing to the Chief of Police within ten calendar days of receipt of the decision. If an appeal is requested, it shall be done as soon as practicable. On appeal, the FRANCHISEE may raise the alleged invalidity of any violation upon which the CITY relies in imposing the suspension for which review has previously been sought. The appeal shall be decided in a hearing conducted in accordance with the provisions of section 1-6.504 through 1-
6.507 of the Modesto Municipal Code by an Administrative Hearing Officer appointed by the City Manager or his/her designee.
C. A suspension resulting from a violation shall not be imposed until the review and/or appeal process for that violation or suspension, if it has been timely requested, has been exhausted, except where this Agreement permits an immediate suspension or termination or where a FRANCHISEE’S conduct is deemed to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement. Failure to request a review or appeal in writing within the time specified or failure of FRANCHISEE to appear at a scheduled review or appeal hearing shall constitute a waiver of his or her right to a review or appeal and adjudication of the violation and/or disciplinary action and the violation and/or disciplinary action shall become final.
27. MOTOR CARRIER PERMIT/OTHER PERMITS AND LICENSES
A. FRANCHISEE must possess a current/valid Department of Motor Vehicles Motor Carrier Permit.
B. FRANCHISEE and his/her officers, officials, employees and agents shall obtain and maintain during the term of this Agreement all necessary licenses, permits and certificates required by law for the conduct of FRANCHISEE’S activities and for the provision of services hereunder, including a business license issued by the City of Modesto.
C. Failure to comply with any provision of Paragraph 23 shall be grounds for immediate suspension and/or termination of this Agreement.
28. EXPERIENCE/SALE OR TRANSFER OF BUSINESS
A. FRANCHISEE must have owned a towing business in the State of California for a minimum of two (2) years immediately preceding the date of its application for a non-exclusive nonconsensual towing service franchise.
B. FRANCHISEE agrees that sale or transfer of the controlling interest in FRANCHISEES Tow Company shall immediately terminate this Agreement.
29. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding among the parties with regard to the matters herein.
The terms of this Agreement are contractual and not a mere recital. There have been no representations, promises, or inducements of any kind made by any party other than those that appear as signatories hereto. Each covenant and condition mentioned in this Agreement is material consideration for each party to enter into this Agreement.
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23 30. PARTIES TO AGREEMENT.
This Agreement is intended to confer rights and benefits only on the signatories hereto and is not intended to confer any right or benefit upon any other person or entity. No person or entity other than the signatories hereto shall have any legally enforceable right under this Agreement. All rights of action of any breach of this Agreement are hereby reserved to the signatories hereto.
31. VOLUNTARY AND KNOWING AGREEMENT.
Each of the parties hereto states that this Agreement voluntarily and with knowledge of its significance and legal effect.
32. AUTHORITY AND COMPETENCY.
Each party hereto expressly warrants and represents that the person executing this Agreement on its behalf is legally competent to and is authorized to enter into this Agreement and to bind said party to their representations, terms, conditions, and covenants as set forth herein.
33. BINDING EFFECT.
This Agreement shall be binding upon and shall insure to the benefit of the signatories and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, affiliated and related entities, officers, directors, principals, agents, employees, assigns, representatives, and all persons, firms, associations, and/or corporations connected with them including, with limitation, their insurers, insureties, and/or attorneys.
34. SEVERABILITY.
If any provision or any part of any provision of this Agreement is for any reason held to be invalid, unenforceable, or contrary to any public policy, law, stature and/or ordinance, the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.
35. ASSIGNMENTS.
The TOWING CARRIER shall not assign, subcontract or transfer by operation of law any obligation hereunder without prior written consent of the CITY.
36. INDEPENDENT CONTRACTOR.
The TOWING CARRIER is and shall at all times remain as to the CITY a wholly independent contractor. Neither the CITY nor any of its officers, employees nor agents shall have control over the conduct of the TOWING CARRIER nor any of the TOWING CARRIER’S officers, employees nor agents, except as herein set forth. The TOWING CARRIER shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers or agents of the CITY.
37. NOTICE This Agreement may be terminated by either party, without prejudice, upon thirty (30) days written notice to the other party. Any notice to be given pursuant to this Agreement by either party to the other shall be deposited with the United States Postal Service, postage prepaid. #19..
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24 PHONE NUMBER(S)
Myers Towing, Inc.
BUSINESS NAME
________________________________________
24-HOUR NUMBER – DISPATCH
_________________________________________
24-HOUR NUMBER – ALL OTHER INQUIRIES
____________________________________ ______________________________
SIGNATURE PRINTED NAME
____________________________________
DATE
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25 MEDIUM/HEAVY DUTY TOW LIST
________________________________________________ ________________________
SIGNATURE DATE
___________________________________________
PRINTED NAME
Myers Towing, Inc.
BUSINESS NAME
I am not interested in being placed on the VOLUNTARY
medium/heavy duty vehicle list
Please place me on the VOLUNTARY medium/heavy
duty vehicle list
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26 IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. ___________, adopted by the Council of the City of Modesto on the _____ day of August, 2022, and _Myers Towing, Inc., has caused this agreement to be duly executed in duplicate as of the Effective Date.
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1 NON-EXCLUSIVE NON-CONSENSUAL TOWING SERVICE FRANCHISE AGREEMENT
1. SCOPE OF WORK
FRANCHISEE shall furnish all labor, materials, and equipment necessary to provide non-exclusive nonconsensual towing services as specified in the Notice for Application, Request for Application #2122-43 Non-Exclusive Non-Consensual Franchise Towing Services Verified Application, and all documents requested in response thereto, all of which are incorporated herein by this reference, and this Agreement (which collectively shall constitute the Non-Exclusive Non-Consensual Towing Service Franchise Agreement and which is referred to herein as “this Agreement”). All non-consensual towing services shall be furnished and performed in strict compliance with the terms and conditions of this Agreement. NonConsensual towing services include, but are not limited to; A. Towing of all vehicles impounded by the City of Modesto (CITY) for investigation, as evidence in a criminal case, asset forfeiture, and vehicles towed pursuant to the California Vehicle Code (“CVC”) including, but not limited to, CVC Section 14607.6.
B. Towing of vehicles involved in collisions, and/or stalled vehicles obstructing traffic, and/or vehicles illegally parked, and/or vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or vehicles whose driver has been arrested and/or detained and cannot drive the vehicle, and/or vehicles under the 30-day impound authority including, but not limited to, CVC Section 14602.6, and/or vehicles with five (5) or more outstanding parking citations; C. Towing of all vehicles necessitating special procedures to ascertain vehicle identification numbers, VIN tows, in compliance with the requirements of the CVC;
D. Towing of any abandoned vehicle, inoperative vehicle, or abated vehicle, from any street, alley, highway, or any other private or public property in the CITY pursuant to the Modesto Municipal Code (“MMC”) and CVC including, but not limited to, MMC Section 3-2.1006 and CVC Section 22669 respectively;
E. Towing any other vehicle or vessel as may be ordered by any police officer, police employee, or any other employee or agent of the CITY who is properly authorized to order such tow. This shall include, but is not limited to, any vehicle that is submerged, either wholly or in part. This shall also include, but is not limited to, the removal and storage of any abandoned vessel from city streets/property, whether or not said vessel is attached to a trailer;
F. Towing trailers, boats, motor homes, etc.
2. TERM OF AGREEMENT
The initial term of this Agreement shall be for three (3) years, commencing September 18, 2022. The CITY reserves the right to extend this Agreement for two (2) additional, one-year terms, at the sole discretion of CITY. This Agreement is an “at will” agreement; either party may terminate this Agreement by giving the other party thirty (30) days written notice. #19..
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2 3. PAYMENT/FRANCHISE FEES PAYABLE TO CITY
A. FRANCHISEE agrees to pay to CITY a franchise fee in accordance with the terms of this Agreement.
B. Commencing with the start date and for the first two (2) years this Agreement, the FRANCHISEE shall pay CITY a franchise fee of $75.00 for each and every non-consensual tow, as defined in this Agreement, performed by FRANCHISEE on behalf of or at the request of CITY. The $75.00 franchise fee will not apply to abandoned and stolen vehicles towed by the Modesto Police Department C. Commencing with the third year of this Agreement (i.e. the 731st day from the start date) the FRANCHISEE shall pay CITY a franchise fee of $80.00 for each and every non-consensual tow, as defined in this Agreement, performed by FRANCHISEE on behalf of or at the request of CITY.
D. All franchise fees owed to CITY for each and every non-consensual tow performed by the FRANCHISEE shall be due and payable on a monthly basis as set forth in the invoice detailing the franchise fees owed. CITY shall receive payment as illustrated in Paragraph 3(E). Payment shall be made in the form of a preprinted company bank check, cashier’s check payable to the City of Modesto, or electronic payment.
E. CITY/Tow Franchise Administrator (TFA) shall mail an itemized bill/invoice of the franchise fees owed by FRANCHISEE to CITY on or before the 10th of each month, for the preceding month’s nonconsensual tows. Payment on the invoice is due to the CITY by the 1st day of the following month. (E.g. FRANCHISE fees for the month of January will be invoiced and mailed by February 10th.
Payment of the total amount invoiced shall be post marked or received by CITY no later than March 1st, everyday thereafter the invoice is delinquent.)
F. Payments shall not be made contingent on any payments due or payable to the FRANCHISEE by either CITY or the registered owner.
G. If any itemized bill/invoice is more than five (5) calendar days delinquent, the Chief of Police or his designee shall have the authority to immediately suspend the FRANCHISEE until payment of any and all billed/invoiced amounts are paid in full to CITY. Furthermore, if any itemized bill/invoice is more than sixty (60) calendar days delinquent, the Chief of Police or his designee shall have the authority to immediately terminate this Agreement.
4. INSURANCE
FRANCHISEE shall provide, at its own expense, and maintain at all times, the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the City Clerk of CITY. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be sent by registered mail to the Risk Manager of CITY, via PINS Advantage Insurance Program for all of the following stated insurance policies.
A. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.
B. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage, and minimum aggregate policy limit of $2,000,000. This insurance shall indicate on the certificate of insurance the following coverage’s and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations; and/or professional liability. #19..
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3 C. Commercial Business Automobile Liability - Bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000) shall be maintained. This insurance shall cover any automobile for bodily injury and property damage.
D. Uninsured Motorist - Legal minimum combined single limit.
D. On-Hook Coverage - Insuring the vehicle in tow with limits based on the size of the tow truck.
Class A tow truck - One Hundred Thousand Dollars ($100,000) Class B tow truck - One Hundred Fifty Thousand Dollars ($150,000) Class C tow truck - Two Hundred Thousand Dollars ($200,000) F. Garage Liability - Includes premises and operations. Coverage for bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000).
G. Garage Keepers Liability - Shall be the same minimum as on-hook coverage for vehicles in the care, custody and control of the FRANCHISEE in the storage yard. i. If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the FRANCHISEE shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the FRANCHISEE to furnish, deliver or maintain such insurance and certificates as above provided, this FRANCHISE, at the election of the CITY, may be forthwith declared suspended or terminated. Failure of the FRANCHISEE to obtain and/or maintain any required insurance shall not relieve the FRANCHISEE from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the FRANCHISEE concerning indemnification. The CITY, its agents, officials, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
ii. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by FRANCHISEE for the CITY.
iii. The FRANCHISEE’S insurance policy(ies) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager.
iv. For any claims related to the work performed pursuant to this Agreement the FRANCHISEE’S insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, or volunteers shall be in excess of the FRANCHISEE’S insurance and shall not contribute with it.
v. FRANCHISEE shall either require any subcontractor to procure and to maintain during the term of the subcontract all insurance in the amounts specified above, or shall insure the activities of #19..
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4 subcontractors in the policy specified above. The limits of liability required may vary, depending on the type of permit or contract.
vi. Proof of insurance shall be in the form of a certificate of insurance and separate endorsements naming the CITY as an additional insured for all insurances except Workers’ Compensation.
Policy expiration or cancellation will immediately nullify this Agreement. FRANCHISEE’S insurance policy shall provide for a thirty (30) day advance notice to CITY in the event the insurance policy will expire or be cancelled. FRANCHISEE shall also immediately notify the Tow Administrator in the event the insurance policy has expired or is cancelled. Failure to maintain insurance or to notify the CITY and Franchise Tow Administrator of insurance lapses shall constitute a material breach of this Agreement and CITY shall have the right to immediately suspend and/or terminate this Agreement as determined by the Chief of Police or his designee.
vii. The ultimate responsibility for any damage to any vehicle or property or the loss of any vehicle or any property contained in the vehicle while the vehicle and/or property is in the FRANCHISEE’S care and/or custody rests with the FRANCHISEE. The FRANCHISEE shall reimburse the vehicle or property owner for any loss or damage which has been identified in a Modesto Police Department Motor Vehicle Report or other official document and is not covered by FRANCHISEE’S insurance.
viii. Any deductibles or self-insured retention must be declared to and approved by the City of Modesto Risk Manager.
5. HOLD HARMLESS AGREEMENT
FRANCHISEE shall hold CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities and damages from every cause, including but not limited to, injury to person or property or wrongful death, with the indemnity to include reasonable attorney's fees, and all costs and expenses, arising directly or indirectly out of any act or omission of FRANCHISEE, whether or not the act or omission arises from the sole negligence or other liability of CITY, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
6. PROHIBITION OF GIFTS
A. FRANCHISEE shall be subject to CITY’s prohibition against acceptance of any gift by a CITY officer or employee.
B. FRANCHISEE agrees not to offer any CITY officer or employee any gift. In addition to any other remedy(ies) CITY may have at law or equity, CITY may immediately terminate this Agreement for a violation of this Paragraph notwithstanding any provision of this Agreement to the contrary.
7. DRIVERS/EMPLOYEES
A. FRANCHISEE shall, at a minimum, maintain the following information for each employee/driver providing services to CITY pursuant to this Agreement.
i. Full name
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5 ii. Date of birth.
iii. Valid California Driver’s License number and photocopy of said driver’s license. iv. Copy of Social Security Card
v. Job title-description.
vi. Current home address
vii. Current phone number.
viii. Copy of employment application.
ix. Medical certificate (if applicable)
B. It is the responsibility of FRANCHISEE to maintain a sufficient number of employees and/or properly licensed and permitted drivers to meet all the terms and conditions set forth in this Agreement. Any violation of CVC Section 12500 or 14601 through 14601.5, by a FRANCHISEE or FRANCHISEE’S employee/driver which is committed while in the process of providing towing service for the CITY under the terms of this Agreement, may be grounds for immediate suspension of this Agreement, notwithstanding any provisions of this Agreement to the contrary.
C. At the start of this Agreement, FRANCHISEE shall provide to the Tow Franchise Administrator a current list of its employees who will be providing services under the terms of this Agreement. Any drivers hired thereafter that will provide services to CITY pursuant to the terms of this Agreement and/or any change in the employment status of any driver including, but not limited to, suspension or dismissal from employment, shall be reported to the Franchise Tow Administrator within twenty-four (24) hours.
D. FRANCHISEE and all tow truck drivers providing services to CITY pursuant to the terms of this Agreement shall be enrolled in the Pull Notice Program with the Department of Motor Vehicles.
FRANCHISEE shall enroll all newly hired tow truck drivers in the Pull Notice Program within fifteen (15) calendar days of hire.
E. All drivers providing services for the CITY under this Agreement shall be covered under the Workers Compensation Insurance Policy required under section 3(A) of this agreement.
8. TOW DRIVERS PERMIT / IDENTIFICATION BADGES
A. FRANCHISEE tow driver(s) who provide services under this Agreement shall apply for and obtain a Tow Driver Permit / Identification Badge annually from the Modesto Police Department. A Tow Driver Permit fee will be charged for each permit applied for and shall be paid by the FRANCHISEE at the time of permit application. The fee, which may be amended from time to time, will be established by resolution of the Modesto City Council.
A. FRANCHISEE’S tow driver(s) shall wear a valid Modesto Police Department issued Tow Driver Identification Badge in plain view, at all times when responding to a CITY generated tow. If 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 obtain a #19..
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6 Tow Driver Permit / Identification Badge shall, at a minimum, be deemed a failure to provide adequate service. The purpose of these badges will be to identify those employees of the FRANCHISEE who have been fingerprinted by the City and have passed the record check by the Department of Justice.
C. A Tow Driver Permit application can be obtained from the Tow Franchise Administrator at the Modesto Police Department, 600 10th St., Modesto Ca. 95354. The Tow Driver Permit will be valid for one year from the date of issuance. It is the responsibility of the FRANCHISEE to ensure that all drivers maintain a valid Tow Driver Permit.
D. If a Tow Driver’s Permit / Identification Badge is lost or stolen, the tow driver must contact the Tow Franchise Administrator for a replacement. The cost of the replacement will be $10.00 per card.
E. A Tow Driver Permit shall NOT be issued to any of the following persons:
i. Any person under the age of eighteen (18) years.
ii. Any person who is currently required to register pursuant to Section 290 of the California Penal Code;
iii. Any person who has been convicted of a crime involving any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, possession and/or sales of drugs or crimes of moral turpitude, unless a period of not less than five (5) years shall have elapsed since the date of conviction or the date of release from confinement for such offense, whichever is later;
iv. Any person not possessing a valid class specific driver’s license issued by the State of California
v. Any person on current probation or parole.
F. The requirement to currently possess a Tow Driver Permit shall be waived for a period of sixty (60) calendar days following the start date of this Agreement, to provide the CITY sufficient time to process all Tow Driver Permit applications. FRANCHISEE shall ensure that all tow drivers who are to provide services under this agreement, and who do not possess a Tow Driver Permit at the start of this agreement apply for a Tow Driver Permit within ten (10) calendar days following the start date of this Agreement Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
G. All identification badges are the property of the City and will be returned by the FRANCHISEE to the City within forty-eight (48) hours of an employee’s separation. FRANCHISEE will provide a current list of all drivers. 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 of drivers.
H. Any employee of the FRANCHISEE that has left employment with said FRANCHISEE and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement.
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7 I. Nothing herein shall prohibit the Chief of Police, or his designee from denying the issuance of, or imposing an immediate suspension and/or termination of, any Tow Driver Permit when the applicant’s/permit holder’s conduct, in the opinion of the Chief of Police, or his designee, is considered
to be a danger to the motoring public or who has engaged in conduct constituting a violation of this Agreement.
9. DEMEANOR AND CONDUCT
While providing towing services pursuant to this Agreement, the FRANCHISEE, its employee(s) and/or agents shall refrain from any of the following acts of misconduct:
A. Rude or discourteous treatment of the public or CITY employees.
B. Lack of service or refusal to provide service to the public or CITY employees.
C. Any act of sexual harassment or sexual impropriety.
D. Unsafe driving practices.
E. Exhibiting any objective symptoms of alcohol and/or drug intoxication. FRANCHISEE/tow truck driver shall submit to a Preliminary Alcohol Screening Test upon demand of a peace officer.
F. Appearing at the scene of a CITY-generated tow with the odor of an alcoholic beverage emitting from his/her breath or person. FRANCHISEE /tow truck driver shall submit to a Preliminary Alcohol Screening Test upon demand of a peace officer.
G. Appearing at the scene of a CITY-generated tow without being attired in the FRANCHISEE’S established uniform and Identification Badge. A description of which shall be provided to the Tow Franchise administrator in writing prior to the commencement of this Agreement. At a minimum, the name of the tow business and the name of the employee shall be displayed on the uniform shirt.
H. However, nothing herein shall prohibit the Chief of Police, or his designee, from imposing an immediate suspension and/or termination on any FRANCHISEE and/or employee(s) whose conduct, in the opinion of the Chief of Police, or his designee, is considered to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement.
I. All complaints received by the Modesto Police Department against the FRANCHISEE or its agent(s) or employee(s) will be accepted and investigated in a fair and impartial manner. At a minimum, any substantiated complaint will be deemed a failure to provide adequate service. Furthermore, as a result of the investigation, the Chief of Police or his designee may initiate such disciplinary action as he or she deems appropriate.
J. FRANCHISEE must notify CITY of all contracts with other cities or governmental agencies to provide tow services within California. Any FRANCHISEE that is under contract with any other city or agency and who is either suspended or terminated by that city or agency shall notify in writing the CITY/ Tow Franchise Administrator within twenty-four (24) hours of such suspension or termination, Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
10. FACILITIES
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8 A. FRANCHISEE shall maintain an office facility with a primary storage yard and interior storage within two (2) miles of the Modesto City limit.
B. Hours of Operation:
i. The business office shall be open to the public, staffed and available for vehicle releases, storage, inquiries, telephone calls and all other business purposes during business hours. Business hours are defined as Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m., except the following observed holidays: New Year’s Day, Martin Luther King Jr. Day, Presidents Day, Memorial Day (observed), Independence Day, Labor Day, Veterans’ Day (observed), Thanksgiving Day, Day after Thanksgiving, Christmas Eve Day, and Christmas Day. ii. In order to ensure that the vehicle owner or his/her agent may claim vehicles towed on behalf of the CITY at any time, on any day and to promptly release CITY towed vehicles, the FRANCHISEE must have an employee available after business hours, who can arrive at the primary office facility within thirty (30) minutes of a request by the CITY or a citizen. Vehicle owners or their agents who request entry to the storage facilities after business hours may be assessed an after-hour gate fee. CITY shall not be assessed an after-hour gate fee.
11. BUSINESS OFFICE
A. FRANCHISEE shall have an accessible public restroom that complies with all federal, state and local laws and regulations and FRANCHISEE shall have a telephone available for customers to use.
B. FRANCHISEE shall display the FRANCHISEE’S business name, address and telephone number at the primary business and secondary storage lot/facility location with a sign clearly visible day and night from the street.
C. Shall be neat and clean in appearance.
D. The following documents, printed in a minimum of 12-point type (unless otherwise stated or required by the California Vehicle Code) shall be posted by FRANCHISEE in the Primary business office in a conspicuous location clearly visible to the public
i. Name and address of FRANCHISEE’S insurance broker carrying the insurance required pursuant to this Agreement;
ii. A notice explaining the procedure by which unclaimed vehicles are sold at public auction stating that all in attendance at such auction shall have an equal opportunity to bid. Notice shall include the locations of such auctions and publications in which such auctions are advertised. iii. “Vehicle Impound Rights and Obligations” informing the public of their rights pursuant to CVC Section 22852.
iv. A notice advising that complaints against FRANCHISEE related to CITY generated nonconsensual tows can be made by contacting the Modesto Police Department, Tow Franchise Administrator, 600 10th St., Modesto Ca. 95354, (209) 572-9500. This notice shall be displayed in a conspicuous place clearly visible to the public in lettering not less than 1” in size. #19..
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9 iv. Maximum Fee/Rate Schedule for CITY generated non-consensual tows. This notice shall be displayed in a conspicuous place clearly visible to the public in lettering not less than 1” in size.
E. The facility shall have a telephone, on site fax machine and the necessary computer equipment to properly run the tow management system software and to send and receive email.
E. If an operator’s place of business is staffed with only one employee, the business office may be closed for one hour at lunch.
i. A sign shall be posted which reflects a lunch closure and phone number where a request by a vehicle’s owner/agent shall result in an immediate response to release property and/or vehicle. ii. Response to the office shall be within thirty (30) minutes.
12. STORAGE LOT
A. FRANCHISEE’S lot(s) must have an improved surface (e.g., gravel, concrete, paved) and the storage lot(s) shall be free of litter, debris and weeds.
B. The storage lot(s)/facilities must be adequately lit during hours of darkness.
C. The storage lot(s) must comply with all applicable local, state and federal rules, regulations and laws.
D. Stored vehicles shall be parked with a minimum of two (2) feet of clearance on each side and one (1) foot of clearance in the front and one foot of clearance in the rear.
E. The storage lot(s)/facility(ies) shall have interior storage used exclusively for the storage of impounded/stored vehicles.
F. Secondary storage locations may be utilized, however, neither customers nor CITY shall be charged any additional fees for vehicles stored at a secondary facilities. Secondary storage lots/facilities must be within two (2) miles of the Modesto City limit. In addition, all vehicles must be released to the registered owner or their agent at the primary business location. Both primary and secondary storage lots shall be enclosed by a solid wall or chain link fence at least six (6) feet in height for maximum security. Said wall or fence shall comply with all local, state and federal rules, ordinances, codes and regulations.
G. All towed vehicles shall be stored on private property only. At no time shall a towed vehicle be deposited, placed, left standing or stored on a public roadway or right of way.
H. A request for outside or inside storage on a CITY generated non-consensual tow by a customer shall be honored. If no request is made, the vehicle shall be stored in the least costly manner to the customer.
I. It is the responsibility of the FRANCHISEE to determine and maintain a sufficient amount of storage to meet all the terms and conditions of this Agreement.
13. TRUCKS
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10 A. FRANCHISEE shall own or lease, and have in their possession a minimum of two (2) fully operational Tow Trucks, as defined in Section 615(a) of the California Vehicle Code, with a minimum GVWR of 14,000 pounds, a minimum of one (1) tow truck shall be capable of towing all vehicles with a (GVWR) up to and including 10,000 pounds. All tow trucks must be currently registered with the California Department of Motor Vehicles and must display a current Modesto Police Department inspection sticker.
B. Tow Truck Classifications and Equipment Specifications:
i. 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 the purpose. This auxiliary equipment shall be used when appropriate. ii. Tow truck equipment and specifications listed are the minimum acceptable. Auxiliary equipment will be required in each class.
iii. Equipment Limitations: All towing equipment, recovery equipment, and carrier ratings are based on structural factors only. Actual towing, carrying, and recovery capacity may be limited by the capacity of the chassis and the optional equipment selected. iv. Towing Limitations:
The criteria to use in determining the safe towing limits for a tow truck are:
a. The total weight of the tow truck, including the lifted load, must fall within the manufacturer’s GVWR and not exceed either the Front or Rear Axle Weight Ratings (FAWR/RAWR).
b. The tow truck must meet all applicable local, state and federal standards, regulations and laws.
c. For proper steering and braking, the front axle load must be at least 50% of its normal or unladen weight after the load is lifted.
v. Identification Label
Each piece of towing equipment shall have a label or identification tag permanently affixed to the equipment in a prominent location to identify the manufacturer, serial number, model and rated capacity when applicable.
vi. Recovery Equipment Rating
The basic performance rating of the recovery equipment is the weight the equipment can lift in a winching mode when the boom is static at a 30-degree elevation with the load lines vertical and the lifting cables sharing the load equally, measured with a live load (weight or load cell). a. The structural design of the recovery equipment must have a higher load capacity than the performance rating(s).
b. Winches shall conform to or exceed the specifications set forth by the Society of Automotive Engineers (SAE) Handbook, SAE J706.
c. All ratings for cable and chain assemblies are for the undamaged assembly condition. All cable and chain assemblies shall be the same type, construction, and rating as specified by the Original Equipment Manufacturer (OEM) for the equipment. vii. Safety Chains:
Safety chains shall be rated at no less than the rating specified by the OEM. #19..
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11 viii. Control/Safety Labels:
All controls shall be clearly marked to indicate proper operation as well as any special warnings or cautions.
ix. Wire Rope (Cable):
Wire rope shall be maintained in good condition. Only wire rope with swaged ends with metal sleeves in the loops shall be approved for use on CITY generated tows. Wire rope is not in good condition when it is stranded, knotted, crushed, excessively rusty, kinked, badly worn, when there are two or more wires broken in lay length, or when there is other visible evidence of loss of strength.
x. Class A – Light Duty: For the purposes of this Agreement, a Class A tow truck is defined as a tow truck that has a manufacturer’s GVWR of at least 14,000 pounds. xi. Class B – Medium Duty: For the purposes of this Agreement, a Class B tow truck is defined as a tow truck with a GVWR of at least 26,001 pounds. The tow 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.
xii. Class C- Heavy Duty: For the purposes of this Agreement, a Class C tow truck is defined as a tow truck with a GVWR of at least 48,000 pounds. The tow truck shall be equipped with air brake and a tractor protection valve or device, and be capable of providing and maintaining continuous air to the towed vehicle.
xiii. Special Equipment: For the purpose of this Agreement, Special Equipment used by Class C Heavy Duty tow truck is defined as equipment needed to properly and safely tow or recover a wide variety of vehicles that necessitate equipment specifically designed for such a purpose.
C. All tow trucks and special equipment utilized by FRANCHISEE to provide CITY generated nonconsensual tow services shall pass a California Highway Patrol (CHP) Level One inspection annually. All special equipment shall be accounted for during the annual inspection. FRANCHISEE shall notify the Tow Administrator of the date and time of their scheduled CHP inspection as soon as practicable, and no later than two (2) weeks prior to the scheduled inspection date.
D. An inspection sticker will be issued by the Modesto Police Department Franchise Tow Administrator for each tow truck once the tow truck has passed CHP inspection. FRANCHISEE shall place the Modesto Police Department inspection sticker on the exterior windshield, upper left hand corner. Failure to display a valid inspection sticker shall, at a minimum, be deemed a failure to provide adequate service and may at the discretion of the officer or agent on scene result in the tow being cancelled. Storage lots/facilities will also receive a bi-annual inspection by the Modesto Police Department at no additional cost to the FRANCHISEE.
E All tow trucks shall maintain a broom, shovel, reflective triangles, fire extinguisher and a covered container with a minimum of 5 gallons of absorbent at all times.
F. FRANCHISEE hereby allows the Modesto Police Department to inspect any and all storage lots/facilities, used to store CITY generated tows, business office(s), and all equipment owned by FRANCHISEE at any time and for any reason, with or without notice. FRANCHISEE shall not utilize a tow truck on a CITY generated tow that has not been inspected and issued a valid inspection sticker by the Modesto Police Department.
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12 G. All tow trucks shall be clearly marked with the FRANCHISEE’S business name, address and telephone number on both sides of the vehicle FRANCHISEE shall not display any sign or engage in any advertisement indicating an official connection with the CITY or the Modesto Police Department; (e.g., “Official Modesto Police Tow,” “Approved by MPD,” etc.). This will not preclude the Chief of Police, or his designee, from implementing a system of marking and/or identifying particular tow trucks as having passed a Modesto Police Department inspection or as being certified as a FRANCHISEE for CITY generated tows.
H. Towed vehicles shall be loaded, secured and transported in compliance with this Agreement and all applicable local, state and federal rules, regulations and laws. Any violation of local, state or federal rules, regulations or laws, including, but not limited to a violation of the GVWR, safe loading requirements or a violation of the equipment requirements shall, at a minimum, be deemed a failure to provide adequate service.
I. It is the responsibility of the FRANCHISEE to provide a sufficient number of tow trucks to meet all the terms and conditions of this Agreement. The number of tow trucks listed in this Agreement is a minimum. It is the FRANCHISEES responsibility to determine the number and type of tow trucks required to fulfill all the requirements of this Agreement.
14. TOW MANAGEMENT SOFTWARE PROGRAM REQUIREMENTS
A. FRANCHISEE shall utilize the most recent, updated and upgraded tow management software program, to dispatch and track, via a web-based Internet connection. FRANCHISEE 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 tow management software program by the FRANCHISEE. The FRANCHISEE shall clearly identify and enter into tow management software program the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program.
B. Failure at any time to have the tow management software program in full operation shall cause the immediate removal of the FRANCHISEE from the tow rotation and be grounds for immediate termination by the City. This does not include technical issues that occur from the tow management software and/or internet provider.
C. FRANCHISEE must enter into a separate agreement, or license for the tow management software program with the owner of the proprietary software. The City shall not provide the tow management software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by the FRANCHISEE of the tow management software program. This Agreement shall not be executed by the City until the FRANCHISEE has demonstrated to the City’s satisfaction compliance with the requirements set forth herein. FRANCHISEE shall be liable for all fees, charges, prices, rates and service charges required from tow management software program.
D. The tow management software program shall be utilized in “real time” and all entries should reflect as such. Invoices shall be used from the tow management software program when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only FRANCHISEE personnel authorized to utilize and access the tow management software program are those that have fully complied with the provisions set forth in Section 8, “Tow Driver’s Permit / Identification Badges” of this Agreement. If the FRANCHISEE is not in FULL compliance with the above stated requirement, the FRANCHISEE will be removed from the City towing rotation. Third party #19..
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13 dispatch call center personnel shall be exempt from the completion of the background process to utilize the tow management software program.
E. In the event that the current tow management software program fails to provide software services, or the City elects to utilize a new software provider, the FRANCHISEE will be required to use the replacement towing software system. If that occurs, all references to the tow management software program in this Agreement shall instead be interpreted as references to the new software program.
15. TOWING AND STORAGE CHARGES
A. The following schedule reflects the maximum rates established for services or materials in connection with any vehicle towed pursuant to a CITY generated non-consensual tow which includes but is not limited to the following.
i. Towing of all vehicles impounded by the CITY for investigation, as evidence in a criminal case, asset forfeiture or vehicles towed under the CVC including, but not limited to, CVC Section 14607.6 (vehicle forfeiture);
ii. Towing of vehicles involved in accidents, and/or stalled vehicles obstructing traffic, and/or vehicles illegally parked, and/or vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or vehicles whose driver has been arrested and/or detained and cannot drive the vehicle, and/or vehicles under the 30-day impound authority including, but not limited to, CVC Section 14602.6, and/or vehicles with five (5) or more outstanding parking citations;
iii. Towing of all vehicles necessitating special procedures to ascertain vehicle identification numbers, VIN tows, in compliance with requirements of the CVC; iv. Towing of any abandoned vehicle, inoperative vehicle, or abated vehicle, from any street, alley, highway, or any other private or public property in the CITY pursuant to the MMC and CVC including, but not limited, to MMC 3-2.1006 or CVC 22669 respectively; v. Towing any other vehicle or vessel as may be ordered by any police officer, police employee, or any other employee or agent of the CITY who is properly authorized to order such tow. This shall include, but is not limited to, any vehicle that is submerged, either wholly or in part. This shall also include, but is to, the removal and storage of any abandoned vessel from city streets/property, whether or not said vessel is attached to a trailer. vi. Towing trailers, boats, motor homes, etc. (ie) Trailer Towing Class A; Ball Hitch B. MAXIMUM CHARGES
Time expended on a CITY generated tow shall be charged at a rate not to exceed the rates set forth hereinafter. There shall be no additional charge(s) for towing after 5 p.m., weekend tows, holiday tows, use of a dolly or any other equipment, mileage and labor, which includes, but is not limited to, crane charges, winching and recovery from areas not accessible to the tow truck.
FRANCHISEE shall collect all towing and storage charges from the vehicle owner unless otherwise stated in this Agreement.
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14 Tow Fees
Year 1
Class A tow (GVWR – 14,000 pounds) $245.00
Class B tow (GVWR – 26,001 pounds) $400.00
Class C tow (GVWR – 48,000 pounds) $550.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $125.00 (any vehicle towed to MPD) Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 2
Class A tow (GVWR – 14,000 pounds) $250.00
Class B tow (GVWR – 26,001 pounds) $405.00
Class C tow (GVWR – 48,000 pounds) $560.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $130.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 3
Class A tow (GVWR – 14,000 pounds) $255.00
Class B tow (GVWR - 26,001 pounds) $410.00
Class C tow (GVWR – 48,000 pounds) $570.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $135.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
In the event that CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for towing shall be:
Year 4
Class A tow (GVWR – 14,000 pounds) $260.00
Class B tow (GVWR – 26,001 pounds) $415.00
Class C tow (GVWR – 48,000 pounds) $575.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $140.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 5
Class A tow (GVWR – 14,000 pounds) $265.00
Class B tow (GVWR – 26,001 pounds) $420.00
Class C tow (GVWR – 48,000 pounds) $600.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $145.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
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15 Additional Charge for 2nd tow truck required for removal of a vehicle. $75.00 (Must have direct approval by MPD officer on scene and must be itemized on the invoice.) Storage Fees:
Year 1
Outside Daily Storage Fee ………………….……...$75.00
Inside Daily Storage Fee……………………………$80.00
Class B/C Storage Fee…………………….. …….. $85.00
After business hours gate fee……………… …….. $100.00
Year 2
Outside Daily Storage Fee ………………………... $80.00
Inside Daily Storage Fee………………………….. $85.00
Class B/C Storage Fee…………………….. …….. $90.00
After business hours gate fee……………… …….. $100.00
Year 3
Outside Daily Storage Fee………………………... $85.00
Inside Daily Storage Fee…………………………. $90.00
Class B/C Storage Fee…………………………… $95.00
After business hours gate fee……………… …….. $100.00
In the event that the CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for storage fees shall be:
Year 4
Outside Daily Storage Fee………………………... $90.00
Inside Daily Storage Fee…………………………. $95.00
Class B/C Storage Fee…………………………… $100.00
After business hours gate fee……………… …….. $100.00
Year 5
Outside Daily Storage Fee………………………... $95.00
Inside Daily Storage Fee…………………………. $100.00
Class B/C Storage Fee…………………………… $105.00
After business hours gate fee……………………… $100.00
City of Modesto Vehicle Release Fee:
Illegal Parker / Abandoned Vehicle $120.00
Unlicensed Driver / Expired Registration $160.00
Suspended / Revoked Driver / Arrested Driver $250.00
DUI Driver $450.00
14602.7 CVC Seized Vehicles $450.00
The above rates represent the maximum a FRANCHISEE may charge on a CITY generated nonconsensual tow. A FRANCHISEE is not precluded from charging less when deemed appropriate. No FRANCHISEE, or their employee or agent, shall refer to any rate as the minimum required or set by CITY.
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16 C. Time expended in excess of sixty (60) minutes on-scene may be charged in one-minute increments at a rate of $90.00 per hour and shall be properly documented on the FRANCHISEE’S invoice.
These additional service fees may be charged only under the following conditions or circumstances:
i. When directed to “stand-by” by an authorized CITY employee or agent. “Stand-by” fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number.
ii. Necessary accident and/or recovery operations and when directed and approved by an authorized CITY employee or agent. This fee is the responsibility of the registered owner and shall be listed on the invoice with the name of the CITY employee or agent authorizing this charge.
iii.Special Equipment fees for Heavy Duty Rotation Tows: Pre-Authorization is required from the officer in charge of the scene and must be itemized on the invoice and all pricing shall follow what is on file with the California Highway Patrol related to their tow agreement program.
iv. When directed to tow a vehicle back to the Modesto Police Department for “Evidence” outside of the City of Modesto city limits.
D. Lock out fees: When directed by an authorized CITY employee or agent to unlock a vehicle. Lock out fees may be charged at a rate of $55.00 per vehicle. Lock out fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number. (Ex. FRANCHISEE is called out to only unlock a vehicle so a search warrant can be executed.) Lock out fees cannot be charged in addition with towing fees. This type of call will count as the FRANCHISEE’s rotation call.
E. The schedule of rates charged by FRANCHISEE shall be available in the tow truck, and shall be presented upon demand to the person(s) for whom the non-consensual tow services were provided or his/her agent at the scene.
F. Vehicles stored twenty-four (24) hours or less shall be charged for no more than one-day storage.
Each day of storage thereafter shall be calculated by calendar day (Civil Code Section 3068.1).
G. If a request for a non-consensual tow is cancelled by the CITY or vehicle’s owner/agent prior to the FRANCHISEE taking possession of the vehicle, there shall be no charge to the CITY or to the vehicle owner by the FRANCHISEE
H. FRANCHISEE may charge a fee for lien sale preparations in compliance with California Vehicle Code Section 22851.12. All lien preparations and/or sales performed by FRANCHISEE shall be done in strict compliance with all applicable laws. All forms shall be accurate and complete.
I. Notwithstanding any other provision of this Agreement to the contrary, any violations of sections 15(A) through 15(G) shall, at a minimum, be deemed a failure to provide adequate service and a material breach of this Agreement, and shall constitute grounds for up to immediate termination of this Agreement.
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17 J. FRANCHISEE shall furnish a fully itemized billing to the vehicle owner or agent at the time of payment and/or upon request of the vehicle owner or agent. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
K. FRANCHISEE shall accept a valid bank credit card or cash tendered by the registered owner, legal owner or the owner’s agent claiming the vehicle for payment of towing and/or storage (CVC Section 22651.1). Appropriate credit card equipment shall be located at the primary business location and available for immediate processing from each tow truck. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service L. A record of all vehicles towed by FRANCHISEE under this Agreement shall be retained by the FRANCHISEE and shall be readily available for inspection and/or transcription or copying at the primary business location of the FRANCHISEE for a minimum of three (3) years. Failure to retain and provide complete and accurate records upon request of the CITY shall, at a minimum, be deemed a failure to provide adequate service. All records shall contain the following information i. Date and time vehicle towed
ii. Modesto Police Department Case Number
iii. License Plate/Vehicle Identification Number
iv. Date and time of vehicle release
v. Year, Make and Model of Vehicle
vi. Copy of Modesto Police Dept. Vehicle Release (if applicable) vii. Date Lien Filed (if applicable)
viii. Date Lien Sale (if applicable)
ix. All Lien Documents (if applicable)
x. All DMV paperwork (if applicable)
M. FRANCHISEE shall post the Modesto Police Department case number on the windshield of any and all vehicles towed and stored by CITY. Failure to do so shall at a minimum be deemed a failure to provide adequate service.
N. A trailer with a vessel as a load (e.g. boat, motorcycle, jet ski,) shall be considered one vehicle for the purposes of the maximum rate allowed for tow and storage.
16. RELEASE OF VEHICLES
An authorized Modesto Police Department employee will authorize the release of a vehicle through the tow management software program. Once the tow management software program authorizes the release of a stored or impounded vehicle, it is the FRANCHISEE’s responsibility for the vehicle’s release. The FRANCHISEE is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC.
17. RELEASE OF MULTI-DAY IMPOUNDS
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18 A vehicle impounded with a multiple day hold (ex: 30-day hold) may only be released prior to the impound period with written authorization by the City in the tow management software program. The tow management software program will automatically schedule the release date of an impounded vehicle.
18. UNAUTHORIZED RELEASE
Unauthorized release of an impounded vehicle, accidental or otherwise, not officially released by the City, and determined to be the fault of the FRANCHISEE, will result in the issuance of a violation as set forth in this Agreement.
19. RESPONSE / RESPONSE TIMES
A. FRANCHISEE shall respond to a dispatch order for a CITY generated tow and be on-scene within thirty (30) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, a community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request tow services. The dispatcher shall record the time of dispatch into the incident history. The dispatcher’s computer entry record shall be the official time piece for the time of dispatch. If the tow truck arrives on scene after the thirty (30) minute requirement, the dispatcher or the officer on scene shall log the time of arrival into the incident history. The officer’s or dispatcher’s computer entry record shall be the official time piece for the time of arrival of the tow truck.
Failure of the FRANCHISEE to respond to a call with necessary towing equipment (i.e. flat bed, conventional rig etc.) at the designated point of the tow within thirty (30) minutes may, at the discretion of the officer on scene result in the FRANCHISEE being cancelled. Three (3) failures by the FRANCHISEE to respond to a call at the designated point of tow within thirty (30) minutes in a calendar year, commencing April 13, 2014, shall result in a failure to provide adequate service
Exception: Tows requested off the Over Weight Vehicle List shall respond to a dispatch order and be on scene within forty-five (45) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request such tow services. Three (3) failures by the FRANCHISEE to respond to a tow request from the Over Weight Vehicle List and furnish a tow truck capable of towing the vehicle at the designated point of tow within forty-five (45) minutes shall be deemed a failure to provide adequate service.
B. Any officer or CITY employee may at his/her discretion cancel a tow that in his/her opinion is unable to provide the necessary equipment to safely tow the vehicle.
C. FRANCHISEE shall maintain a phone line dedicated to Stanislaus Regional 911. Said phone line will be staffed twenty-four (24) hours a day, seven (7) days a week, including weekends and holidays. If the FRANCHISEE fails to answer the dedicated phone, they will be passed and fall to the bottom of the list. Three (3) failures by the FRANCHISEE to answer their designated phone line in a calendar year, commencing ___________, 2017, shall result in a failure to provide adequate service.
20. NON-RESPONSE
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19 The FRANCHISEE shall update the tow management software program at the time of dispatch to a tow rotation request. If the FRANCHISEE is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the tow management software program accordingly. If, after accepting the call, the FRANCHISEE is unable to respond or will be delayed in responding, the FRANCHISEE shall immediately update the tow management software program 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 tow management software program and reviewed by the City. Three (3) failures to respond to a City generated tow in a calendar year, commencing ____________, 2022, shall result in a failure to provide adequate service.
21. ROTATION TOW LIST
A. The CITY will make a good faith effort to provide an even distribution of work among the FRANCHISEES. A list shall be established for non-consensual towing of all vehicles with a GVWR of 10,000 pounds or less. FRANCHISEE agrees to the rotation system established by CITY.
B. A separate list (Over Weight Vehicle List) will be established for non-consensual towing of vehicles with a GVWR of 10,001 pounds or more. FRANCHISEES who own or lease a tow truck with a minimum GVWR of 26,001 pounds may be placed on the Over Weight Vehicle List on a voluntary basis. However, once placed on the Over Weight Vehicle List FRANCHISEE shall give thirty (30) calendar days written notice to the Franchise Tow Administrator in order to be removed from the Over Weight Vehicle List.
C. This Agreement applies to non-consensual towing as defined in this Agreement. Nothing contained herein shall be construed to regulate consensual tows.
D. CITY reserves the right to request any tow company, regardless of its position on the rotation tow list.
22. AUDITING OF CHARGES AND SERVICES
A. The CITY reserves the right to audit all records, charges, and/or services provided by FRANCHISEE pursuant to this Agreement. CITY’s duly authorized representative shall have access to and the right to examine, transcribe, and/or copy, during business hours, as defined in Section 10 (B) (i), any and all reports, records, documents, and/or files necessary in order to audit and verify charges and services provided by FRANCHISEE under this Agreement. A complete record of all vehicles towed by FRANCHISEE pursuant to this Agreement, including, but not limited to; date and time of tow, Modesto Police Department case number, license plate number, vehicle identification number, date and time of release, year, make and model of vehicle, copy of Modesto Police Department vehicle release (if applicable), all lien and sale documents (if applicable) and vehicle disposition, shall be readily available for inspection at the primary business location of the FRANCHISEE and provided to CITY promptly upon request, and shall be retained for a minimum of three (3) years.
23. RESPONSIBILITY
A. FRANCHISEE shall be responsible for the protection of all CITY generated towed and/or stored vehicles in its possession until the vehicle has been released to its owner, or disposed of through #19..
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20 the legal process, and shall be responsible for safeguarding all articles or property left in the towed and/or stored vehicle.
B. FRANCHISEE shall release personal property from a towed/stored vehicle at the request of the vehicle owner or his/her agent, subject to the below listed exceptions. (Personal property is considered to be items, which are not affixed to the vehicle; i.e. papers, cell phones, pull out stereos, clothes, luggage, tools, cargo, etc.) EXCEPTION: No personal property shall be released from vehicles impounded by CITY for evidence, investigation, asset forfeiture or vehicle forfeiture without prior authorization from the towing officer or the Tow Franchise Administrator.
C. Any vehicle towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) and stored by the FRANCHISEE shall be stored at the primary storage facility and shall not be moved until authorized by the Chief of Police, the Tow Franchise Administrator or their designee. The need for inside storage shall be indicated on the tow sheet. Vehicles towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) shall not be lien sold until such time as the Modesto Police Department Tow Franchise Administrator provides the FRANCHISEE with a written release of the vehicle.
D. FRANCHISEE shall not release any vehicle that is marked as an “Agency Hold” on the Vehicle Report without a the release in the tow management software program and/or signed Modesto Police Department Vehicle Release form.
E. FRANCHISEE shall ensure that all debris and fluids are cleared from the scene of a CITY generated tow prior to leaving the scene.
24. COMPLIANCE WITH THE LAW
A. FRANCHISEE and its tow truck driver(s) and employees must be in compliance with all terms and conditions of this Agreement and all applicable federal, state, and local laws, rules, and regulations which are in force or become effective during the franchise period which, in any manner, affect towing and storage of vehicles, including, without limitation, the requirement that any person who drives a tow truck for FRANCHISEE is properly licensed and permitted and that all tow trucks meet any and all applicable Vehicle Code requirements.
B. In the event that FRANCHISEE is cited, arrested, charged, or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, FRANCHISEE may be immediately suspended or terminated at the discretion of the Chief of Police. FRANCHISEE shall notify the Tow Administrator within seventy-two 72 hours of any citation, arrest or conviction of the FRANCHISEE.
C. In the event that FRANCHISEE’s employee is cited, arrested and/or charged and/or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, notwithstanding any provision of this Agreement to the contrary, the employees Tow Driver Permit may be immediately suspended or revoked. FRANCHISEE shall #19..
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21 notify the Tow Administrator within seventy-two (72) hours of FRANCHISEE becoming aware of any such citation, arrest, charging or conviction.
D. In the event that any FRANCHISEE employee is cited for any two (2) infractions while operating a tow truck within a rolling 12-month period, the employee’s tow driver’s permit may, at the discretion of the Chief of Police, be suspended or terminated. The FRANCHISEE shall notify the Tow Administrator within seventy-two (72) hours of becoming aware of any such citation having been issued to an employee.
E. Nothing in Paragraph 19 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
25. FAILURE TO PROVIDE ADEQUATE SERVICE/DISCIPLINARY ACTION A. Except as otherwise provided in this Agreement, FRANCHISEE’S failure to meet any of the terms and conditions of this Agreement shall be deemed a failure to provide adequate service.
Any failure to provide adequate service is a violation of the terms of this Agreement and shall result in the following disciplinary action unless otherwise stated in this Agreement:
i. First violation within a calendar year commencing with the start date of the agreement, ________, 2022, Written Notice via certified mail
ii. Second violation within any calendar year commencing _______, 2022 Written Warning via certified mail.
iii. Third violation within any calendar year commencing _______, 2022, thirty (30) Day Suspension.
a. Upon serving a suspension of any length the FRANCHISEE must pay a reinstatement fee of five hundred dollars ($500.00). The suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee through the Franchise Tow Coordinator.
B. Nothing herein shall be deemed to prohibit the Chief of Police, or his designee, from imposing an immediate suspension and/or termination on any FRANCHISEE and/or employee(s) whose conduct, in the opinion of the Chief of Police, or his designee, is considered to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement.
C. Nothing in Paragraph 20 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
26. FRANCHISEE’S REVIEW/APPEAL
A. FRANCHISEE may request a review of a violation within ten (10) calendar days of receipt of the notice of violation by submitting a request in writing to the Administrative Services Supervisor. If a review is requested by FRANCHISEE, it shall be done as soon as practicable by the Administrative Services Supervisor or his/her designee. FRANCHISEE shall be notified in writing of the Administrative Services Supervisor’s decision(s) within ten (10) calendar days of #19..
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22 the date of completion of the review. The Administrative Services Supervisor’s decision on review of the violation shall be final.
B. Following receipt of a notice of suspension, FRANCHISEE may appeal the suspension by submitting a request in writing to the Chief of Police within ten calendar days of receipt of the decision. If an appeal is requested, it shall be done as soon as practicable. On appeal, the FRANCHISEE may raise the alleged invalidity of any violation upon which the CITY relies in imposing the suspension for which review has previously been sought. The appeal shall be decided in a hearing conducted in accordance with the provisions of section 1-6.504 through 1-
6.507 of the Modesto Municipal Code by an Administrative Hearing Officer appointed by the City Manager or his/her designee.
C. A suspension resulting from a violation shall not be imposed until the review and/or appeal process for that violation or suspension, if it has been timely requested, has been exhausted, except where this Agreement permits an immediate suspension or termination or where a FRANCHISEE’S conduct is deemed to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement. Failure to request a review or appeal in writing within the time specified or failure of FRANCHISEE to appear at a scheduled review or appeal hearing shall constitute a waiver of his or her right to a review or appeal and adjudication of the violation and/or disciplinary action and the violation and/or disciplinary action shall become final.
27. MOTOR CARRIER PERMIT/OTHER PERMITS AND LICENSES
A. FRANCHISEE must possess a current/valid Department of Motor Vehicles Motor Carrier Permit.
B. FRANCHISEE and his/her officers, officials, employees and agents shall obtain and maintain during the term of this Agreement all necessary licenses, permits and certificates required by law for the conduct of FRANCHISEE’S activities and for the provision of services hereunder, including a business license issued by the City of Modesto.
C. Failure to comply with any provision of Paragraph 23 shall be grounds for immediate suspension and/or termination of this Agreement.
28. EXPERIENCE/SALE OR TRANSFER OF BUSINESS
A. FRANCHISEE must have owned a towing business in the State of California for a minimum of two (2) years immediately preceding the date of its application for a non-exclusive nonconsensual towing service franchise.
B. FRANCHISEE agrees that sale or transfer of the controlling interest in FRANCHISEES Tow Company shall immediately terminate this Agreement.
29. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding among the parties with regard to the matters herein.
The terms of this Agreement are contractual and not a mere recital. There have been no representations, promises, or inducements of any kind made by any party other than those that appear as signatories hereto. Each covenant and condition mentioned in this Agreement is material consideration for each party to enter into this Agreement.
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23 30. PARTIES TO AGREEMENT.
This Agreement is intended to confer rights and benefits only on the signatories hereto and is not intended to confer any right or benefit upon any other person or entity. No person or entity other than the signatories hereto shall have any legally enforceable right under this Agreement. All rights of action of any breach of this Agreement are hereby reserved to the signatories hereto.
31. VOLUNTARY AND KNOWING AGREEMENT.
Each of the parties hereto states that this Agreement voluntarily and with knowledge of its significance and legal effect.
32. AUTHORITY AND COMPETENCY.
Each party hereto expressly warrants and represents that the person executing this Agreement on its behalf is legally competent to and is authorized to enter into this Agreement and to bind said party to their representations, terms, conditions, and covenants as set forth herein.
33. BINDING EFFECT.
This Agreement shall be binding upon and shall insure to the benefit of the signatories and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, affiliated and related entities, officers, directors, principals, agents, employees, assigns, representatives, and all persons, firms, associations, and/or corporations connected with them including, with limitation, their insurers, insureties, and/or attorneys.
34. SEVERABILITY.
If any provision or any part of any provision of this Agreement is for any reason held to be invalid, unenforceable, or contrary to any public policy, law, stature and/or ordinance, the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.
35. ASSIGNMENTS.
The TOWING CARRIER shall not assign, subcontract or transfer by operation of law any obligation hereunder without prior written consent of the CITY.
36. INDEPENDENT CONTRACTOR.
The TOWING CARRIER is and shall at all times remain as to the CITY a wholly independent contractor. Neither the CITY nor any of its officers, employees nor agents shall have control over the conduct of the TOWING CARRIER nor any of the TOWING CARRIER’S officers, employees nor agents, except as herein set forth. The TOWING CARRIER shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers or agents of the CITY.
37. NOTICE This Agreement may be terminated by either party, without prejudice, upon thirty (30) days written notice to the other party. Any notice to be given pursuant to this Agreement by either party to the other shall be deposited with the United States Postal Service, postage prepaid. #19..
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24 PHONE NUMBER(S)
Super Towing
BUSINESS NAME
________________________________________
24-HOUR NUMBER – DISPATCH
_________________________________________
24-HOUR NUMBER – ALL OTHER INQUIRIES
____________________________________ ______________________________
SIGNATURE PRINTED NAME
____________________________________
DATE
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25 MEDIUM/HEAVY DUTY TOW LIST
________________________________________________ ________________________
SIGNATURE DATE
___________________________________________
PRINTED NAME
Super Towing
BUSINESS NAME
I am not interested in being placed on the VOLUNTARY
medium/heavy duty vehicle list
Please place me on the VOLUNTARY medium/heavy
duty vehicle list
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26 IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. ___________, adopted by the Council of the City of Modesto on the _____ day of August, 2022, and _Super Towing, has caused this agreement to be duly executed in duplicate as of the Effective Date. #19..
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1 NON-EXCLUSIVE NON-CONSENSUAL TOWING SERVICE FRANCHISE AGREEMENT
1. SCOPE OF WORK
FRANCHISEE shall furnish all labor, materials, and equipment necessary to provide non-exclusive nonconsensual towing services as specified in the Notice for Application, Request for Application #2122-43 Non-Exclusive Non-Consensual Franchise Towing Services Verified Application, and all documents requested in response thereto, all of which are incorporated herein by this reference, and this Agreement (which collectively shall constitute the Non-Exclusive Non-Consensual Towing Service Franchise Agreement and which is referred to herein as “this Agreement”). All non-consensual towing services shall be furnished and performed in strict compliance with the terms and conditions of this Agreement. NonConsensual towing services include, but are not limited to; A. Towing of all vehicles impounded by the City of Modesto (CITY) for investigation, as evidence in a criminal case, asset forfeiture, and vehicles towed pursuant to the California Vehicle Code (“CVC”) including, but not limited to, CVC Section 14607.6.
B. Towing of vehicles involved in collisions, and/or stalled vehicles obstructing traffic, and/or vehicles illegally parked, and/or vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or vehicles whose driver has been arrested and/or detained and cannot drive the vehicle, and/or vehicles under the 30-day impound authority including, but not limited to, CVC Section 14602.6, and/or vehicles with five (5) or more outstanding parking citations; C. Towing of all vehicles necessitating special procedures to ascertain vehicle identification numbers, VIN tows, in compliance with the requirements of the CVC;
D. Towing of any abandoned vehicle, inoperative vehicle, or abated vehicle, from any street, alley, highway, or any other private or public property in the CITY pursuant to the Modesto Municipal Code (“MMC”) and CVC including, but not limited to, MMC Section 3-2.1006 and CVC Section 22669 respectively;
E. Towing any other vehicle or vessel as may be ordered by any police officer, police employee, or any other employee or agent of the CITY who is properly authorized to order such tow. This shall include, but is not limited to, any vehicle that is submerged, either wholly or in part. This shall also include, but is not limited to, the removal and storage of any abandoned vessel from city streets/property, whether or not said vessel is attached to a trailer;
F. Towing trailers, boats, motor homes, etc.
2. TERM OF AGREEMENT
The initial term of this Agreement shall be for three (3) years, commencing September 18, 2022. The CITY reserves the right to extend this Agreement for two (2) additional, one-year terms, at the sole discretion of CITY. This Agreement is an “at will” agreement; either party may terminate this Agreement by giving the other party thirty (30) days written notice. #19..
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2 3. PAYMENT/FRANCHISE FEES PAYABLE TO CITY
A. FRANCHISEE agrees to pay to CITY a franchise fee in accordance with the terms of this Agreement.
B. Commencing with the start date and for the first two (2) years this Agreement, the FRANCHISEE shall pay CITY a franchise fee of $75.00 for each and every non-consensual tow, as defined in this Agreement, performed by FRANCHISEE on behalf of or at the request of CITY. The $75.00 franchise fee will not apply to abandoned and stolen vehicles towed by the Modesto Police Department C. Commencing with the third year of this Agreement (i.e. the 731st day from the start date) the FRANCHISEE shall pay CITY a franchise fee of $80.00 for each and every non-consensual tow, as defined in this Agreement, performed by FRANCHISEE on behalf of or at the request of CITY.
D. All franchise fees owed to CITY for each and every non-consensual tow performed by the FRANCHISEE shall be due and payable on a monthly basis as set forth in the invoice detailing the franchise fees owed. CITY shall receive payment as illustrated in Paragraph 3(E). Payment shall be made in the form of a preprinted company bank check, cashier’s check payable to the City of Modesto, or electronic payment.
E. CITY/Tow Franchise Administrator (TFA) shall mail an itemized bill/invoice of the franchise fees owed by FRANCHISEE to CITY on or before the 10th of each month, for the preceding month’s nonconsensual tows. Payment on the invoice is due to the CITY by the 1st day of the following month. (E.g. FRANCHISE fees for the month of January will be invoiced and mailed by February 10th.
Payment of the total amount invoiced shall be post marked or received by CITY no later than March 1st, everyday thereafter the invoice is delinquent.)
F. Payments shall not be made contingent on any payments due or payable to the FRANCHISEE by either CITY or the registered owner.
G. If any itemized bill/invoice is more than five (5) calendar days delinquent, the Chief of Police or his designee shall have the authority to immediately suspend the FRANCHISEE until payment of any and all billed/invoiced amounts are paid in full to CITY. Furthermore, if any itemized bill/invoice is more than sixty (60) calendar days delinquent, the Chief of Police or his designee shall have the authority to immediately terminate this Agreement.
4. INSURANCE
FRANCHISEE shall provide, at its own expense, and maintain at all times, the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the City Clerk of CITY. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be sent by registered mail to the Risk Manager of CITY, via PINS Advantage Insurance Program for all of the following stated insurance policies.
A. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.
B. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage, and minimum aggregate policy limit of $2,000,000. This insurance shall indicate on the certificate of insurance the following coverage’s and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations; and/or professional liability. #19..
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3 C. Commercial Business Automobile Liability - Bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000) shall be maintained. This insurance shall cover any automobile for bodily injury and property damage.
D. Uninsured Motorist - Legal minimum combined single limit.
D. On-Hook Coverage - Insuring the vehicle in tow with limits based on the size of the tow truck.
Class A tow truck - One Hundred Thousand Dollars ($100,000) Class B tow truck - One Hundred Fifty Thousand Dollars ($150,000) Class C tow truck - Two Hundred Thousand Dollars ($200,000) F. Garage Liability - Includes premises and operations. Coverage for bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000).
G. Garage Keepers Liability - Shall be the same minimum as on-hook coverage for vehicles in the care, custody and control of the FRANCHISEE in the storage yard. i. If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the FRANCHISEE shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the FRANCHISEE to furnish, deliver or maintain such insurance and certificates as above provided, this FRANCHISE, at the election of the CITY, may be forthwith declared suspended or terminated. Failure of the FRANCHISEE to obtain and/or maintain any required insurance shall not relieve the FRANCHISEE from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the FRANCHISEE concerning indemnification. The CITY, its agents, officials, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
ii. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by FRANCHISEE for the CITY.
iii. The FRANCHISEE’S insurance policy(ies) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager.
iv. For any claims related to the work performed pursuant to this Agreement the FRANCHISEE’S insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, or volunteers shall be in excess of the FRANCHISEE’S insurance and shall not contribute with it.
v. FRANCHISEE shall either require any subcontractor to procure and to maintain during the term of the subcontract all insurance in the amounts specified above, or shall insure the activities of #19..
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4 subcontractors in the policy specified above. The limits of liability required may vary, depending on the type of permit or contract.
vi. Proof of insurance shall be in the form of a certificate of insurance and separate endorsements naming the CITY as an additional insured for all insurances except Workers’ Compensation.
Policy expiration or cancellation will immediately nullify this Agreement. FRANCHISEE’S insurance policy shall provide for a thirty (30) day advance notice to CITY in the event the insurance policy will expire or be cancelled. FRANCHISEE shall also immediately notify the Tow Administrator in the event the insurance policy has expired or is cancelled. Failure to maintain insurance or to notify the CITY and Franchise Tow Administrator of insurance lapses shall constitute a material breach of this Agreement and CITY shall have the right to immediately suspend and/or terminate this Agreement as determined by the Chief of Police or his designee.
vii. The ultimate responsibility for any damage to any vehicle or property or the loss of any vehicle or any property contained in the vehicle while the vehicle and/or property is in the FRANCHISEE’S care and/or custody rests with the FRANCHISEE. The FRANCHISEE shall reimburse the vehicle or property owner for any loss or damage which has been identified in a Modesto Police Department Motor Vehicle Report or other official document and is not covered by FRANCHISEE’S insurance.
viii. Any deductibles or self-insured retention must be declared to and approved by the City of Modesto Risk Manager.
5. HOLD HARMLESS AGREEMENT
FRANCHISEE shall hold CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities and damages from every cause, including but not limited to, injury to person or property or wrongful death, with the indemnity to include reasonable attorney's fees, and all costs and expenses, arising directly or indirectly out of any act or omission of FRANCHISEE, whether or not the act or omission arises from the sole negligence or other liability of CITY, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
6. PROHIBITION OF GIFTS
A. FRANCHISEE shall be subject to CITY’s prohibition against acceptance of any gift by a CITY officer or employee.
B. FRANCHISEE agrees not to offer any CITY officer or employee any gift. In addition to any other remedy(ies) CITY may have at law or equity, CITY may immediately terminate this Agreement for a violation of this Paragraph notwithstanding any provision of this Agreement to the contrary.
7. DRIVERS/EMPLOYEES
A. FRANCHISEE shall, at a minimum, maintain the following information for each employee/driver providing services to CITY pursuant to this Agreement.
i. Full name
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5 ii. Date of birth.
iii. Valid California Driver’s License number and photocopy of said driver’s license. iv. Copy of Social Security Card
v. Job title-description.
vi. Current home address
vii. Current phone number.
viii. Copy of employment application.
ix. Medical certificate (if applicable)
B. It is the responsibility of FRANCHISEE to maintain a sufficient number of employees and/or properly licensed and permitted drivers to meet all the terms and conditions set forth in this Agreement. Any violation of CVC Section 12500 or 14601 through 14601.5, by a FRANCHISEE or FRANCHISEE’S employee/driver which is committed while in the process of providing towing service for the CITY under the terms of this Agreement, may be grounds for immediate suspension of this Agreement, notwithstanding any provisions of this Agreement to the contrary.
C. At the start of this Agreement, FRANCHISEE shall provide to the Tow Franchise Administrator a current list of its employees who will be providing services under the terms of this Agreement. Any drivers hired thereafter that will provide services to CITY pursuant to the terms of this Agreement and/or any change in the employment status of any driver including, but not limited to, suspension or dismissal from employment, shall be reported to the Franchise Tow Administrator within twenty-four (24) hours.
D. FRANCHISEE and all tow truck drivers providing services to CITY pursuant to the terms of this Agreement shall be enrolled in the Pull Notice Program with the Department of Motor Vehicles.
FRANCHISEE shall enroll all newly hired tow truck drivers in the Pull Notice Program within fifteen (15) calendar days of hire.
E. All drivers providing services for the CITY under this Agreement shall be covered under the Workers Compensation Insurance Policy required under section 3(A) of this agreement.
8. TOW DRIVERS PERMIT / IDENTIFICATION BADGES
A. FRANCHISEE tow driver(s) who provide services under this Agreement shall apply for and obtain a Tow Driver Permit / Identification Badge annually from the Modesto Police Department. A Tow Driver Permit fee will be charged for each permit applied for and shall be paid by the FRANCHISEE at the time of permit application. The fee, which may be amended from time to time, will be established by resolution of the Modesto City Council.
A. FRANCHISEE’S tow driver(s) shall wear a valid Modesto Police Department issued Tow Driver Identification Badge in plain view, at all times when responding to a CITY generated tow. If 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 obtain a #19..
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6 Tow Driver Permit / Identification Badge shall, at a minimum, be deemed a failure to provide adequate service. The purpose of these badges will be to identify those employees of the FRANCHISEE who have been fingerprinted by the City and have passed the record check by the Department of Justice.
C. A Tow Driver Permit application can be obtained from the Tow Franchise Administrator at the Modesto Police Department, 600 10th St., Modesto Ca. 95354. The Tow Driver Permit will be valid for one year from the date of issuance. It is the responsibility of the FRANCHISEE to ensure that all drivers maintain a valid Tow Driver Permit.
D. If a Tow Driver’s Permit / Identification Badge is lost or stolen, the tow driver must contact the Tow Franchise Administrator for a replacement. The cost of the replacement will be $10.00 per card.
E. A Tow Driver Permit shall NOT be issued to any of the following persons:
i. Any person under the age of eighteen (18) years.
ii. Any person who is currently required to register pursuant to Section 290 of the California Penal Code;
iii. Any person who has been convicted of a crime involving any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, possession and/or sales of drugs or crimes of moral turpitude, unless a period of not less than five (5) years shall have elapsed since the date of conviction or the date of release from confinement for such offense, whichever is later;
iv. Any person not possessing a valid class specific driver’s license issued by the State of California
v. Any person on current probation or parole.
F. The requirement to currently possess a Tow Driver Permit shall be waived for a period of sixty (60) calendar days following the start date of this Agreement, to provide the CITY sufficient time to process all Tow Driver Permit applications. FRANCHISEE shall ensure that all tow drivers who are to provide services under this agreement, and who do not possess a Tow Driver Permit at the start of this agreement apply for a Tow Driver Permit within ten (10) calendar days following the start date of this Agreement Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
G. All identification badges are the property of the City and will be returned by the FRANCHISEE to the City within forty-eight (48) hours of an employee’s separation. FRANCHISEE will provide a current list of all drivers. 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 of drivers.
H. Any employee of the FRANCHISEE that has left employment with said FRANCHISEE and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement.
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7 I. Nothing herein shall prohibit the Chief of Police, or his designee from denying the issuance of, or imposing an immediate suspension and/or termination of, any Tow Driver Permit when the applicant’s/permit holder’s conduct, in the opinion of the Chief of Police, or his designee, is considered
to be a danger to the motoring public or who has engaged in conduct constituting a violation of this Agreement.
9. DEMEANOR AND CONDUCT
While providing towing services pursuant to this Agreement, the FRANCHISEE, its employee(s) and/or agents shall refrain from any of the following acts of misconduct:
A. Rude or discourteous treatment of the public or CITY employees.
B. Lack of service or refusal to provide service to the public or CITY employees.
C. Any act of sexual harassment or sexual impropriety.
D. Unsafe driving practices.
E. Exhibiting any objective symptoms of alcohol and/or drug intoxication. FRANCHISEE/tow truck driver shall submit to a Preliminary Alcohol Screening Test upon demand of a peace officer.
F. Appearing at the scene of a CITY-generated tow with the odor of an alcoholic beverage emitting from his/her breath or person. FRANCHISEE /tow truck driver shall submit to a Preliminary Alcohol Screening Test upon demand of a peace officer.
G. Appearing at the scene of a CITY-generated tow without being attired in the FRANCHISEE’S established uniform and Identification Badge. A description of which shall be provided to the Tow Franchise administrator in writing prior to the commencement of this Agreement. At a minimum, the name of the tow business and the name of the employee shall be displayed on the uniform shirt.
H. However, nothing herein shall prohibit the Chief of Police, or his designee, from imposing an immediate suspension and/or termination on any FRANCHISEE and/or employee(s) whose conduct, in the opinion of the Chief of Police, or his designee, is considered to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement.
I. All complaints received by the Modesto Police Department against the FRANCHISEE or its agent(s) or employee(s) will be accepted and investigated in a fair and impartial manner. At a minimum, any substantiated complaint will be deemed a failure to provide adequate service. Furthermore, as a result of the investigation, the Chief of Police or his designee may initiate such disciplinary action as he or she deems appropriate.
J. FRANCHISEE must notify CITY of all contracts with other cities or governmental agencies to provide tow services within California. Any FRANCHISEE that is under contract with any other city or agency and who is either suspended or terminated by that city or agency shall notify in writing the CITY/ Tow Franchise Administrator within twenty-four (24) hours of such suspension or termination, Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
10. FACILITIES
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8 A. FRANCHISEE shall maintain an office facility with a primary storage yard and interior storage within two (2) miles of the Modesto City limit.
B. Hours of Operation:
i. The business office shall be open to the public, staffed and available for vehicle releases, storage, inquiries, telephone calls and all other business purposes during business hours. Business hours are defined as Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m., except the following observed holidays: New Year’s Day, Martin Luther King Jr. Day, Presidents Day, Memorial Day (observed), Independence Day, Labor Day, Veterans’ Day (observed), Thanksgiving Day, Day after Thanksgiving, Christmas Eve Day, and Christmas Day. ii. In order to ensure that the vehicle owner or his/her agent may claim vehicles towed on behalf of the CITY at any time, on any day and to promptly release CITY towed vehicles, the FRANCHISEE must have an employee available after business hours, who can arrive at the primary office facility within thirty (30) minutes of a request by the CITY or a citizen. Vehicle owners or their agents who request entry to the storage facilities after business hours may be assessed an after-hour gate fee. CITY shall not be assessed an after-hour gate fee.
11. BUSINESS OFFICE
A. FRANCHISEE shall have an accessible public restroom that complies with all federal, state and local laws and regulations and FRANCHISEE shall have a telephone available for customers to use.
B. FRANCHISEE shall display the FRANCHISEE’S business name, address and telephone number at the primary business and secondary storage lot/facility location with a sign clearly visible day and night from the street.
C. Shall be neat and clean in appearance.
D. The following documents, printed in a minimum of 12-point type (unless otherwise stated or required by the California Vehicle Code) shall be posted by FRANCHISEE in the Primary business office in a conspicuous location clearly visible to the public
i. Name and address of FRANCHISEE’S insurance broker carrying the insurance required pursuant to this Agreement;
ii. A notice explaining the procedure by which unclaimed vehicles are sold at public auction stating that all in attendance at such auction shall have an equal opportunity to bid. Notice shall include the locations of such auctions and publications in which such auctions are advertised. iii. “Vehicle Impound Rights and Obligations” informing the public of their rights pursuant to CVC Section 22852.
iv. A notice advising that complaints against FRANCHISEE related to CITY generated nonconsensual tows can be made by contacting the Modesto Police Department, Tow Franchise Administrator, 600 10th St., Modesto Ca. 95354, (209) 572-9500. This notice shall be displayed in a conspicuous place clearly visible to the public in lettering not less than 1” in size. #19..
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9 iv. Maximum Fee/Rate Schedule for CITY generated non-consensual tows. This notice shall be displayed in a conspicuous place clearly visible to the public in lettering not less than 1” in size.
E. The facility shall have a telephone, on site fax machine and the necessary computer equipment to properly run the tow management system software and to send and receive email.
E. If an operator’s place of business is staffed with only one employee, the business office may be closed for one hour at lunch.
i. A sign shall be posted which reflects a lunch closure and phone number where a request by a vehicle’s owner/agent shall result in an immediate response to release property and/or vehicle. ii. Response to the office shall be within thirty (30) minutes.
12. STORAGE LOT
A. FRANCHISEE’S lot(s) must have an improved surface (e.g., gravel, concrete, paved) and the storage lot(s) shall be free of litter, debris and weeds.
B. The storage lot(s)/facilities must be adequately lit during hours of darkness.
C. The storage lot(s) must comply with all applicable local, state and federal rules, regulations and laws.
D. Stored vehicles shall be parked with a minimum of two (2) feet of clearance on each side and one (1) foot of clearance in the front and one foot of clearance in the rear.
E. The storage lot(s)/facility(ies) shall have interior storage used exclusively for the storage of impounded/stored vehicles.
F. Secondary storage locations may be utilized, however, neither customers nor CITY shall be charged any additional fees for vehicles stored at a secondary facilities. Secondary storage lots/facilities must be within two (2) miles of the Modesto City limit. In addition, all vehicles must be released to the registered owner or their agent at the primary business location. Both primary and secondary storage lots shall be enclosed by a solid wall or chain link fence at least six (6) feet in height for maximum security. Said wall or fence shall comply with all local, state and federal rules, ordinances, codes and regulations.
G. All towed vehicles shall be stored on private property only. At no time shall a towed vehicle be deposited, placed, left standing or stored on a public roadway or right of way.
H. A request for outside or inside storage on a CITY generated non-consensual tow by a customer shall be honored. If no request is made, the vehicle shall be stored in the least costly manner to the customer.
I. It is the responsibility of the FRANCHISEE to determine and maintain a sufficient amount of storage to meet all the terms and conditions of this Agreement.
13. TRUCKS
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10 A. FRANCHISEE shall own or lease, and have in their possession a minimum of two (2) fully operational Tow Trucks, as defined in Section 615(a) of the California Vehicle Code, with a minimum GVWR of 14,000 pounds, a minimum of one (1) tow truck shall be capable of towing all vehicles with a (GVWR) up to and including 10,000 pounds. All tow trucks must be currently registered with the California Department of Motor Vehicles and must display a current Modesto Police Department inspection sticker.
B. Tow Truck Classifications and Equipment Specifications:
i. 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 the purpose. This auxiliary equipment shall be used when appropriate. ii. Tow truck equipment and specifications listed are the minimum acceptable. Auxiliary equipment will be required in each class.
iii. Equipment Limitations: All towing equipment, recovery equipment, and carrier ratings are based on structural factors only. Actual towing, carrying, and recovery capacity may be limited by the capacity of the chassis and the optional equipment selected. iv. Towing Limitations:
The criteria to use in determining the safe towing limits for a tow truck are:
a. The total weight of the tow truck, including the lifted load, must fall within the manufacturer’s GVWR and not exceed either the Front or Rear Axle Weight Ratings (FAWR/RAWR).
b. The tow truck must meet all applicable local, state and federal standards, regulations and laws.
c. For proper steering and braking, the front axle load must be at least 50% of its normal or unladen weight after the load is lifted.
v. Identification Label
Each piece of towing equipment shall have a label or identification tag permanently affixed to the equipment in a prominent location to identify the manufacturer, serial number, model and rated capacity when applicable.
vi. Recovery Equipment Rating
The basic performance rating of the recovery equipment is the weight the equipment can lift in a winching mode when the boom is static at a 30-degree elevation with the load lines vertical and the lifting cables sharing the load equally, measured with a live load (weight or load cell). a. The structural design of the recovery equipment must have a higher load capacity than the performance rating(s).
b. Winches shall conform to or exceed the specifications set forth by the Society of Automotive Engineers (SAE) Handbook, SAE J706.
c. All ratings for cable and chain assemblies are for the undamaged assembly condition. All cable and chain assemblies shall be the same type, construction, and rating as specified by the Original Equipment Manufacturer (OEM) for the equipment. vii. Safety Chains:
Safety chains shall be rated at no less than the rating specified by the OEM. #19..
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11 viii. Control/Safety Labels:
All controls shall be clearly marked to indicate proper operation as well as any special warnings or cautions.
ix. Wire Rope (Cable):
Wire rope shall be maintained in good condition. Only wire rope with swaged ends with metal sleeves in the loops shall be approved for use on CITY generated tows. Wire rope is not in good condition when it is stranded, knotted, crushed, excessively rusty, kinked, badly worn, when there are two or more wires broken in lay length, or when there is other visible evidence of loss of strength.
x. Class A – Light Duty: For the purposes of this Agreement, a Class A tow truck is defined as a tow truck that has a manufacturer’s GVWR of at least 14,000 pounds. xi. Class B – Medium Duty: For the purposes of this Agreement, a Class B tow truck is defined as a tow truck with a GVWR of at least 26,001 pounds. The tow 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.
xii. Class C- Heavy Duty: For the purposes of this Agreement, a Class C tow truck is defined as a tow truck with a GVWR of at least 48,000 pounds. The tow truck shall be equipped with air brake and a tractor protection valve or device, and be capable of providing and maintaining continuous air to the towed vehicle.
xiii. Special Equipment: For the purpose of this Agreement, Special Equipment used by Class C Heavy Duty tow truck is defined as equipment needed to properly and safely tow or recover a wide variety of vehicles that necessitate equipment specifically designed for such a purpose.
C. All tow trucks and special equipment utilized by FRANCHISEE to provide CITY generated nonconsensual tow services shall pass a California Highway Patrol (CHP) Level One inspection annually. All special equipment shall be accounted for during the annual inspection. FRANCHISEE shall notify the Tow Administrator of the date and time of their scheduled CHP inspection as soon as practicable, and no later than two (2) weeks prior to the scheduled inspection date.
D. An inspection sticker will be issued by the Modesto Police Department Franchise Tow Administrator for each tow truck once the tow truck has passed CHP inspection. FRANCHISEE shall place the Modesto Police Department inspection sticker on the exterior windshield, upper left hand corner. Failure to display a valid inspection sticker shall, at a minimum, be deemed a failure to provide adequate service and may at the discretion of the officer or agent on scene result in the tow being cancelled. Storage lots/facilities will also receive a bi-annual inspection by the Modesto Police Department at no additional cost to the FRANCHISEE.
E All tow trucks shall maintain a broom, shovel, reflective triangles, fire extinguisher and a covered container with a minimum of 5 gallons of absorbent at all times.
F. FRANCHISEE hereby allows the Modesto Police Department to inspect any and all storage lots/facilities, used to store CITY generated tows, business office(s), and all equipment owned by FRANCHISEE at any time and for any reason, with or without notice. FRANCHISEE shall not utilize a tow truck on a CITY generated tow that has not been inspected and issued a valid inspection sticker by the Modesto Police Department.
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12 G. All tow trucks shall be clearly marked with the FRANCHISEE’S business name, address and telephone number on both sides of the vehicle FRANCHISEE shall not display any sign or engage in any advertisement indicating an official connection with the CITY or the Modesto Police Department; (e.g., “Official Modesto Police Tow,” “Approved by MPD,” etc.). This will not preclude the Chief of Police, or his designee, from implementing a system of marking and/or identifying particular tow trucks as having passed a Modesto Police Department inspection or as being certified as a FRANCHISEE for CITY generated tows.
H. Towed vehicles shall be loaded, secured and transported in compliance with this Agreement and all applicable local, state and federal rules, regulations and laws. Any violation of local, state or federal rules, regulations or laws, including, but not limited to a violation of the GVWR, safe loading requirements or a violation of the equipment requirements shall, at a minimum, be deemed a failure to provide adequate service.
I. It is the responsibility of the FRANCHISEE to provide a sufficient number of tow trucks to meet all the terms and conditions of this Agreement. The number of tow trucks listed in this Agreement is a minimum. It is the FRANCHISEES responsibility to determine the number and type of tow trucks required to fulfill all the requirements of this Agreement.
14. TOW MANAGEMENT SOFTWARE PROGRAM REQUIREMENTS
A. FRANCHISEE shall utilize the most recent, updated and upgraded tow management software program, to dispatch and track, via a web-based Internet connection. FRANCHISEE 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 tow management software program by the FRANCHISEE. The FRANCHISEE shall clearly identify and enter into tow management software program the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program.
B. Failure at any time to have the tow management software program in full operation shall cause the immediate removal of the FRANCHISEE from the tow rotation and be grounds for immediate termination by the City. This does not include technical issues that occur from the tow management software and/or internet provider.
C. FRANCHISEE must enter into a separate agreement, or license for the tow management software program with the owner of the proprietary software. The City shall not provide the tow management software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by the FRANCHISEE of the tow management software program. This Agreement shall not be executed by the City until the FRANCHISEE has demonstrated to the City’s satisfaction compliance with the requirements set forth herein. FRANCHISEE shall be liable for all fees, charges, prices, rates and service charges required from tow management software program.
D. The tow management software program shall be utilized in “real time” and all entries should reflect as such. Invoices shall be used from the tow management software program when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only FRANCHISEE personnel authorized to utilize and access the tow management software program are those that have fully complied with the provisions set forth in Section 8, “Tow Driver’s Permit / Identification Badges” of this Agreement. If the FRANCHISEE is not in FULL compliance with the above stated requirement, the FRANCHISEE will be removed from the City towing rotation. Third party #19..
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13 dispatch call center personnel shall be exempt from the completion of the background process to utilize the tow management software program.
E. In the event that the current tow management software program fails to provide software services, or the City elects to utilize a new software provider, the FRANCHISEE will be required to use the replacement towing software system. If that occurs, all references to the tow management software program in this Agreement shall instead be interpreted as references to the new software program.
15. TOWING AND STORAGE CHARGES
A. The following schedule reflects the maximum rates established for services or materials in connection with any vehicle towed pursuant to a CITY generated non-consensual tow which includes but is not limited to the following.
i. Towing of all vehicles impounded by the CITY for investigation, as evidence in a criminal case, asset forfeiture or vehicles towed under the CVC including, but not limited to, CVC Section 14607.6 (vehicle forfeiture);
ii. Towing of vehicles involved in accidents, and/or stalled vehicles obstructing traffic, and/or vehicles illegally parked, and/or vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or vehicles whose driver has been arrested and/or detained and cannot drive the vehicle, and/or vehicles under the 30-day impound authority including, but not limited to, CVC Section 14602.6, and/or vehicles with five (5) or more outstanding parking citations;
iii. Towing of all vehicles necessitating special procedures to ascertain vehicle identification numbers, VIN tows, in compliance with requirements of the CVC; iv. Towing of any abandoned vehicle, inoperative vehicle, or abated vehicle, from any street, alley, highway, or any other private or public property in the CITY pursuant to the MMC and CVC including, but not limited, to MMC 3-2.1006 or CVC 22669 respectively; v. Towing any other vehicle or vessel as may be ordered by any police officer, police employee, or any other employee or agent of the CITY who is properly authorized to order such tow. This shall include, but is not limited to, any vehicle that is submerged, either wholly or in part. This shall also include, but is to, the removal and storage of any abandoned vessel from city streets/property, whether or not said vessel is attached to a trailer. vi. Towing trailers, boats, motor homes, etc. (ie) Trailer Towing Class A; Ball Hitch B. MAXIMUM CHARGES
Time expended on a CITY generated tow shall be charged at a rate not to exceed the rates set forth hereinafter. There shall be no additional charge(s) for towing after 5 p.m., weekend tows, holiday tows, use of a dolly or any other equipment, mileage and labor, which includes, but is not limited to, crane charges, winching and recovery from areas not accessible to the tow truck.
FRANCHISEE shall collect all towing and storage charges from the vehicle owner unless otherwise stated in this Agreement.
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14 Tow Fees
Year 1
Class A tow (GVWR – 14,000 pounds) $245.00
Class B tow (GVWR – 26,001 pounds) $400.00
Class C tow (GVWR – 48,000 pounds) $550.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $125.00 (any vehicle towed to MPD) Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 2
Class A tow (GVWR – 14,000 pounds) $250.00
Class B tow (GVWR – 26,001 pounds) $405.00
Class C tow (GVWR – 48,000 pounds) $560.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $130.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 3
Class A tow (GVWR – 14,000 pounds) $255.00
Class B tow (GVWR - 26,001 pounds) $410.00
Class C tow (GVWR – 48,000 pounds) $570.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $135.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
In the event that CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for towing shall be:
Year 4
Class A tow (GVWR – 14,000 pounds) $260.00
Class B tow (GVWR – 26,001 pounds) $415.00
Class C tow (GVWR – 48,000 pounds) $575.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $140.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 5
Class A tow (GVWR – 14,000 pounds) $265.00
Class B tow (GVWR – 26,001 pounds) $420.00
Class C tow (GVWR – 48,000 pounds) $600.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $145.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
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15 Additional Charge for 2nd tow truck required for removal of a vehicle. $75.00 (Must have direct approval by MPD officer on scene and must be itemized on the invoice.) Storage Fees:
Year 1
Outside Daily Storage Fee ………………….……...$75.00
Inside Daily Storage Fee……………………………$80.00
Class B/C Storage Fee…………………….. …….. $85.00
After business hours gate fee……………… …….. $100.00
Year 2
Outside Daily Storage Fee ………………………... $80.00
Inside Daily Storage Fee………………………….. $85.00
Class B/C Storage Fee…………………….. …….. $90.00
After business hours gate fee……………… …….. $100.00
Year 3
Outside Daily Storage Fee………………………... $85.00
Inside Daily Storage Fee…………………………. $90.00
Class B/C Storage Fee…………………………… $95.00
After business hours gate fee……………… …….. $100.00
In the event that the CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for storage fees shall be:
Year 4
Outside Daily Storage Fee………………………... $90.00
Inside Daily Storage Fee…………………………. $95.00
Class B/C Storage Fee…………………………… $100.00
After business hours gate fee……………… …….. $100.00
Year 5
Outside Daily Storage Fee………………………... $95.00
Inside Daily Storage Fee…………………………. $100.00
Class B/C Storage Fee…………………………… $105.00
After business hours gate fee……………………… $100.00
City of Modesto Vehicle Release Fee:
Illegal Parker / Abandoned Vehicle $120.00
Unlicensed Driver / Expired Registration $160.00
Suspended / Revoked Driver / Arrested Driver $250.00
DUI Driver $450.00
14602.7 CVC Seized Vehicles $450.00
The above rates represent the maximum a FRANCHISEE may charge on a CITY generated nonconsensual tow. A FRANCHISEE is not precluded from charging less when deemed appropriate. No FRANCHISEE, or their employee or agent, shall refer to any rate as the minimum required or set by CITY.
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16 C. Time expended in excess of sixty (60) minutes on-scene may be charged in one-minute increments at a rate of $90.00 per hour and shall be properly documented on the FRANCHISEE’S invoice.
These additional service fees may be charged only under the following conditions or circumstances:
i. When directed to “stand-by” by an authorized CITY employee or agent. “Stand-by” fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number.
ii. Necessary accident and/or recovery operations and when directed and approved by an authorized CITY employee or agent. This fee is the responsibility of the registered owner and shall be listed on the invoice with the name of the CITY employee or agent authorizing this charge.
iii.Special Equipment fees for Heavy Duty Rotation Tows: Pre-Authorization is required from the officer in charge of the scene and must be itemized on the invoice and all pricing shall follow what is on file with the California Highway Patrol related to their tow agreement program.
iv. When directed to tow a vehicle back to the Modesto Police Department for “Evidence” outside of the City of Modesto city limits.
D. Lock out fees: When directed by an authorized CITY employee or agent to unlock a vehicle. Lock out fees may be charged at a rate of $55.00 per vehicle. Lock out fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number. (Ex. FRANCHISEE is called out to only unlock a vehicle so a search warrant can be executed.) Lock out fees cannot be charged in addition with towing fees. This type of call will count as the FRANCHISEE’s rotation call.
E. The schedule of rates charged by FRANCHISEE shall be available in the tow truck, and shall be presented upon demand to the person(s) for whom the non-consensual tow services were provided or his/her agent at the scene.
F. Vehicles stored twenty-four (24) hours or less shall be charged for no more than one-day storage.
Each day of storage thereafter shall be calculated by calendar day (Civil Code Section 3068.1).
G. If a request for a non-consensual tow is cancelled by the CITY or vehicle’s owner/agent prior to the FRANCHISEE taking possession of the vehicle, there shall be no charge to the CITY or to the vehicle owner by the FRANCHISEE
H. FRANCHISEE may charge a fee for lien sale preparations in compliance with California Vehicle Code Section 22851.12. All lien preparations and/or sales performed by FRANCHISEE shall be done in strict compliance with all applicable laws. All forms shall be accurate and complete.
I. Notwithstanding any other provision of this Agreement to the contrary, any violations of sections 15(A) through 15(G) shall, at a minimum, be deemed a failure to provide adequate service and a material breach of this Agreement, and shall constitute grounds for up to immediate termination of this Agreement.
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17 J. FRANCHISEE shall furnish a fully itemized billing to the vehicle owner or agent at the time of payment and/or upon request of the vehicle owner or agent. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
K. FRANCHISEE shall accept a valid bank credit card or cash tendered by the registered owner, legal owner or the owner’s agent claiming the vehicle for payment of towing and/or storage (CVC Section 22651.1). Appropriate credit card equipment shall be located at the primary business location and available for immediate processing from each tow truck. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service L. A record of all vehicles towed by FRANCHISEE under this Agreement shall be retained by the FRANCHISEE and shall be readily available for inspection and/or transcription or copying at the primary business location of the FRANCHISEE for a minimum of three (3) years. Failure to retain and provide complete and accurate records upon request of the CITY shall, at a minimum, be deemed a failure to provide adequate service. All records shall contain the following information i. Date and time vehicle towed
ii. Modesto Police Department Case Number
iii. License Plate/Vehicle Identification Number
iv. Date and time of vehicle release
v. Year, Make and Model of Vehicle
vi. Copy of Modesto Police Dept. Vehicle Release (if applicable) vii. Date Lien Filed (if applicable)
viii. Date Lien Sale (if applicable)
ix. All Lien Documents (if applicable)
x. All DMV paperwork (if applicable)
M. FRANCHISEE shall post the Modesto Police Department case number on the windshield of any and all vehicles towed and stored by CITY. Failure to do so shall at a minimum be deemed a failure to provide adequate service.
N. A trailer with a vessel as a load (e.g. boat, motorcycle, jet ski,) shall be considered one vehicle for the purposes of the maximum rate allowed for tow and storage.
16. RELEASE OF VEHICLES
An authorized Modesto Police Department employee will authorize the release of a vehicle through the tow management software program. Once the tow management software program authorizes the release of a stored or impounded vehicle, it is the FRANCHISEE’s responsibility for the vehicle’s release. The FRANCHISEE is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC.
17. RELEASE OF MULTI-DAY IMPOUNDS
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18 A vehicle impounded with a multiple day hold (ex: 30-day hold) may only be released prior to the impound period with written authorization by the City in the tow management software program. The tow management software program will automatically schedule the release date of an impounded vehicle.
18. UNAUTHORIZED RELEASE
Unauthorized release of an impounded vehicle, accidental or otherwise, not officially released by the City, and determined to be the fault of the FRANCHISEE, will result in the issuance of a violation as set forth in this Agreement.
19. RESPONSE / RESPONSE TIMES
A. FRANCHISEE shall respond to a dispatch order for a CITY generated tow and be on-scene within thirty (30) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, a community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request tow services. The dispatcher shall record the time of dispatch into the incident history. The dispatcher’s computer entry record shall be the official time piece for the time of dispatch. If the tow truck arrives on scene after the thirty (30) minute requirement, the dispatcher or the officer on scene shall log the time of arrival into the incident history. The officer’s or dispatcher’s computer entry record shall be the official time piece for the time of arrival of the tow truck.
Failure of the FRANCHISEE to respond to a call with necessary towing equipment (i.e. flat bed, conventional rig etc.) at the designated point of the tow within thirty (30) minutes may, at the discretion of the officer on scene result in the FRANCHISEE being cancelled. Three (3) failures by the FRANCHISEE to respond to a call at the designated point of tow within thirty (30) minutes in a calendar year, commencing April 13, 2014, shall result in a failure to provide adequate service
Exception: Tows requested off the Over Weight Vehicle List shall respond to a dispatch order and be on scene within forty-five (45) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request such tow services. Three (3) failures by the FRANCHISEE to respond to a tow request from the Over Weight Vehicle List and furnish a tow truck capable of towing the vehicle at the designated point of tow within forty-five (45) minutes shall be deemed a failure to provide adequate service.
B. Any officer or CITY employee may at his/her discretion cancel a tow that in his/her opinion is unable to provide the necessary equipment to safely tow the vehicle.
C. FRANCHISEE shall maintain a phone line dedicated to Stanislaus Regional 911. Said phone line will be staffed twenty-four (24) hours a day, seven (7) days a week, including weekends and holidays. If the FRANCHISEE fails to answer the dedicated phone, they will be passed and fall to the bottom of the list. Three (3) failures by the FRANCHISEE to answer their designated phone line in a calendar year, commencing ___________, 2017, shall result in a failure to provide adequate service.
20. NON-RESPONSE
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19 The FRANCHISEE shall update the tow management software program at the time of dispatch to a tow rotation request. If the FRANCHISEE is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the tow management software program accordingly. If, after accepting the call, the FRANCHISEE is unable to respond or will be delayed in responding, the FRANCHISEE shall immediately update the tow management software program 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 tow management software program and reviewed by the City. Three (3) failures to respond to a City generated tow in a calendar year, commencing ____________, 2022, shall result in a failure to provide adequate service.
21. ROTATION TOW LIST
A. The CITY will make a good faith effort to provide an even distribution of work among the FRANCHISEES. A list shall be established for non-consensual towing of all vehicles with a GVWR of 10,000 pounds or less. FRANCHISEE agrees to the rotation system established by CITY.
B. A separate list (Over Weight Vehicle List) will be established for non-consensual towing of vehicles with a GVWR of 10,001 pounds or more. FRANCHISEES who own or lease a tow truck with a minimum GVWR of 26,001 pounds may be placed on the Over Weight Vehicle List on a voluntary basis. However, once placed on the Over Weight Vehicle List FRANCHISEE shall give thirty (30) calendar days written notice to the Franchise Tow Administrator in order to be removed from the Over Weight Vehicle List.
C. This Agreement applies to non-consensual towing as defined in this Agreement. Nothing contained herein shall be construed to regulate consensual tows.
D. CITY reserves the right to request any tow company, regardless of its position on the rotation tow list.
22. AUDITING OF CHARGES AND SERVICES
A. The CITY reserves the right to audit all records, charges, and/or services provided by FRANCHISEE pursuant to this Agreement. CITY’s duly authorized representative shall have access to and the right to examine, transcribe, and/or copy, during business hours, as defined in Section 10 (B) (i), any and all reports, records, documents, and/or files necessary in order to audit and verify charges and services provided by FRANCHISEE under this Agreement. A complete record of all vehicles towed by FRANCHISEE pursuant to this Agreement, including, but not limited to; date and time of tow, Modesto Police Department case number, license plate number, vehicle identification number, date and time of release, year, make and model of vehicle, copy of Modesto Police Department vehicle release (if applicable), all lien and sale documents (if applicable) and vehicle disposition, shall be readily available for inspection at the primary business location of the FRANCHISEE and provided to CITY promptly upon request, and shall be retained for a minimum of three (3) years.
23. RESPONSIBILITY
A. FRANCHISEE shall be responsible for the protection of all CITY generated towed and/or stored vehicles in its possession until the vehicle has been released to its owner, or disposed of through #19..
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20 the legal process, and shall be responsible for safeguarding all articles or property left in the towed and/or stored vehicle.
B. FRANCHISEE shall release personal property from a towed/stored vehicle at the request of the vehicle owner or his/her agent, subject to the below listed exceptions. (Personal property is considered to be items, which are not affixed to the vehicle; i.e. papers, cell phones, pull out stereos, clothes, luggage, tools, cargo, etc.) EXCEPTION: No personal property shall be released from vehicles impounded by CITY for evidence, investigation, asset forfeiture or vehicle forfeiture without prior authorization from the towing officer or the Tow Franchise Administrator.
C. Any vehicle towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) and stored by the FRANCHISEE shall be stored at the primary storage facility and shall not be moved until authorized by the Chief of Police, the Tow Franchise Administrator or their designee. The need for inside storage shall be indicated on the tow sheet. Vehicles towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) shall not be lien sold until such time as the Modesto Police Department Tow Franchise Administrator provides the FRANCHISEE with a written release of the vehicle.
D. FRANCHISEE shall not release any vehicle that is marked as an “Agency Hold” on the Vehicle Report without a the release in the tow management software program and/or signed Modesto Police Department Vehicle Release form.
E. FRANCHISEE shall ensure that all debris and fluids are cleared from the scene of a CITY generated tow prior to leaving the scene.
24. COMPLIANCE WITH THE LAW
A. FRANCHISEE and its tow truck driver(s) and employees must be in compliance with all terms and conditions of this Agreement and all applicable federal, state, and local laws, rules, and regulations which are in force or become effective during the franchise period which, in any manner, affect towing and storage of vehicles, including, without limitation, the requirement that any person who drives a tow truck for FRANCHISEE is properly licensed and permitted and that all tow trucks meet any and all applicable Vehicle Code requirements.
B. In the event that FRANCHISEE is cited, arrested, charged, or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, FRANCHISEE may be immediately suspended or terminated at the discretion of the Chief of Police. FRANCHISEE shall notify the Tow Administrator within seventy-two 72 hours of any citation, arrest or conviction of the FRANCHISEE.
C. In the event that FRANCHISEE’s employee is cited, arrested and/or charged and/or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, notwithstanding any provision of this Agreement to the contrary, the employees Tow Driver Permit may be immediately suspended or revoked. FRANCHISEE shall #19..
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21 notify the Tow Administrator within seventy-two (72) hours of FRANCHISEE becoming aware of any such citation, arrest, charging or conviction.
D. In the event that any FRANCHISEE employee is cited for any two (2) infractions while operating a tow truck within a rolling 12-month period, the employee’s tow driver’s permit may, at the discretion of the Chief of Police, be suspended or terminated. The FRANCHISEE shall notify the Tow Administrator within seventy-two (72) hours of becoming aware of any such citation having been issued to an employee.
E. Nothing in Paragraph 19 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
25. FAILURE TO PROVIDE ADEQUATE SERVICE/DISCIPLINARY ACTION A. Except as otherwise provided in this Agreement, FRANCHISEE’S failure to meet any of the terms and conditions of this Agreement shall be deemed a failure to provide adequate service.
Any failure to provide adequate service is a violation of the terms of this Agreement and shall result in the following disciplinary action unless otherwise stated in this Agreement:
i. First violation within a calendar year commencing with the start date of the agreement, ________, 2022, Written Notice via certified mail
ii. Second violation within any calendar year commencing _______, 2022 Written Warning via certified mail.
iii. Third violation within any calendar year commencing _______, 2022, thirty (30) Day Suspension.
a. Upon serving a suspension of any length the FRANCHISEE must pay a reinstatement fee of five hundred dollars ($500.00). The suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee through the Franchise Tow Coordinator.
B. Nothing herein shall be deemed to prohibit the Chief of Police, or his designee, from imposing an immediate suspension and/or termination on any FRANCHISEE and/or employee(s) whose conduct, in the opinion of the Chief of Police, or his designee, is considered to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement.
C. Nothing in Paragraph 20 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
26. FRANCHISEE’S REVIEW/APPEAL
A. FRANCHISEE may request a review of a violation within ten (10) calendar days of receipt of the notice of violation by submitting a request in writing to the Administrative Services Supervisor. If a review is requested by FRANCHISEE, it shall be done as soon as practicable by the Administrative Services Supervisor or his/her designee. FRANCHISEE shall be notified in writing of the Administrative Services Supervisor’s decision(s) within ten (10) calendar days of #19..
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22 the date of completion of the review. The Administrative Services Supervisor’s decision on review of the violation shall be final.
B. Following receipt of a notice of suspension, FRANCHISEE may appeal the suspension by submitting a request in writing to the Chief of Police within ten calendar days of receipt of the decision. If an appeal is requested, it shall be done as soon as practicable. On appeal, the FRANCHISEE may raise the alleged invalidity of any violation upon which the CITY relies in imposing the suspension for which review has previously been sought. The appeal shall be decided in a hearing conducted in accordance with the provisions of section 1-6.504 through 1-
6.507 of the Modesto Municipal Code by an Administrative Hearing Officer appointed by the City Manager or his/her designee.
C. A suspension resulting from a violation shall not be imposed until the review and/or appeal process for that violation or suspension, if it has been timely requested, has been exhausted, except where this Agreement permits an immediate suspension or termination or where a FRANCHISEE’S conduct is deemed to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement. Failure to request a review or appeal in writing within the time specified or failure of FRANCHISEE to appear at a scheduled review or appeal hearing shall constitute a waiver of his or her right to a review or appeal and adjudication of the violation and/or disciplinary action and the violation and/or disciplinary action shall become final.
27. MOTOR CARRIER PERMIT/OTHER PERMITS AND LICENSES
A. FRANCHISEE must possess a current/valid Department of Motor Vehicles Motor Carrier Permit.
B. FRANCHISEE and his/her officers, officials, employees and agents shall obtain and maintain during the term of this Agreement all necessary licenses, permits and certificates required by law for the conduct of FRANCHISEE’S activities and for the provision of services hereunder, including a business license issued by the City of Modesto.
C. Failure to comply with any provision of Paragraph 23 shall be grounds for immediate suspension and/or termination of this Agreement.
28. EXPERIENCE/SALE OR TRANSFER OF BUSINESS
A. FRANCHISEE must have owned a towing business in the State of California for a minimum of two (2) years immediately preceding the date of its application for a non-exclusive nonconsensual towing service franchise.
B. FRANCHISEE agrees that sale or transfer of the controlling interest in FRANCHISEES Tow Company shall immediately terminate this Agreement.
29. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding among the parties with regard to the matters herein.
The terms of this Agreement are contractual and not a mere recital. There have been no representations, promises, or inducements of any kind made by any party other than those that appear as signatories hereto. Each covenant and condition mentioned in this Agreement is material consideration for each party to enter into this Agreement.
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23 30. PARTIES TO AGREEMENT.
This Agreement is intended to confer rights and benefits only on the signatories hereto and is not intended to confer any right or benefit upon any other person or entity. No person or entity other than the signatories hereto shall have any legally enforceable right under this Agreement. All rights of action of any breach of this Agreement are hereby reserved to the signatories hereto.
31. VOLUNTARY AND KNOWING AGREEMENT.
Each of the parties hereto states that this Agreement voluntarily and with knowledge of its significance and legal effect.
32. AUTHORITY AND COMPETENCY.
Each party hereto expressly warrants and represents that the person executing this Agreement on its behalf is legally competent to and is authorized to enter into this Agreement and to bind said party to their representations, terms, conditions, and covenants as set forth herein.
33. BINDING EFFECT.
This Agreement shall be binding upon and shall insure to the benefit of the signatories and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, affiliated and related entities, officers, directors, principals, agents, employees, assigns, representatives, and all persons, firms, associations, and/or corporations connected with them including, with limitation, their insurers, insureties, and/or attorneys.
34. SEVERABILITY.
If any provision or any part of any provision of this Agreement is for any reason held to be invalid, unenforceable, or contrary to any public policy, law, stature and/or ordinance, the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.
35. ASSIGNMENTS.
The TOWING CARRIER shall not assign, subcontract or transfer by operation of law any obligation hereunder without prior written consent of the CITY.
36. INDEPENDENT CONTRACTOR.
The TOWING CARRIER is and shall at all times remain as to the CITY a wholly independent contractor. Neither the CITY nor any of its officers, employees nor agents shall have control over the conduct of the TOWING CARRIER nor any of the TOWING CARRIER’S officers, employees nor agents, except as herein set forth. The TOWING CARRIER shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers or agents of the CITY.
37. NOTICE This Agreement may be terminated by either party, without prejudice, upon thirty (30) days written notice to the other party. Any notice to be given pursuant to this Agreement by either party to the other shall be deposited with the United States Postal Service, postage prepaid. #19..
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24 PHONE NUMBER(S)
Ramont’s Tow Service
BUSINESS NAME
________________________________________
24-HOUR NUMBER – DISPATCH
_________________________________________
24-HOUR NUMBER – ALL OTHER INQUIRIES
____________________________________ ______________________________
SIGNATURE PRINTED NAME
____________________________________
DATE
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25 MEDIUM/HEAVY DUTY TOW LIST
________________________________________________ ________________________
SIGNATURE DATE
___________________________________________
PRINTED NAME
Ramont’s Tow Service
BUSINESS NAME
I am not interested in being placed on the VOLUNTARY
medium/heavy duty vehicle list
Please place me on the VOLUNTARY medium/heavy
duty vehicle list
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26 IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. ___________, adopted by the Council of the City of Modesto on the _____ day of August, 2022, and _Ramont’s Tow Service, has caused this agreement to be duly executed in duplicate as of the Effective Date.
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1 NON-EXCLUSIVE NON-CONSENSUAL TOWING SERVICE FRANCHISE AGREEMENT
1. SCOPE OF WORK
FRANCHISEE shall furnish all labor, materials, and equipment necessary to provide non-exclusive nonconsensual towing services as specified in the Notice for Application, Request for Application #2122-43 Non-Exclusive Non-Consensual Franchise Towing Services Verified Application, and all documents requested in response thereto, all of which are incorporated herein by this reference, and this Agreement (which collectively shall constitute the Non-Exclusive Non-Consensual Towing Service Franchise Agreement and which is referred to herein as “this Agreement”). All non-consensual towing services shall be furnished and performed in strict compliance with the terms and conditions of this Agreement. NonConsensual towing services include, but are not limited to; A. Towing of all vehicles impounded by the City of Modesto (CITY) for investigation, as evidence in a criminal case, asset forfeiture, and vehicles towed pursuant to the California Vehicle Code (“CVC”) including, but not limited to, CVC Section 14607.6.
B. Towing of vehicles involved in collisions, and/or stalled vehicles obstructing traffic, and/or vehicles illegally parked, and/or vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or vehicles whose driver has been arrested and/or detained and cannot drive the vehicle, and/or vehicles under the 30-day impound authority including, but not limited to, CVC Section 14602.6, and/or vehicles with five (5) or more outstanding parking citations; C. Towing of all vehicles necessitating special procedures to ascertain vehicle identification numbers, VIN tows, in compliance with the requirements of the CVC;
D. Towing of any abandoned vehicle, inoperative vehicle, or abated vehicle, from any street, alley, highway, or any other private or public property in the CITY pursuant to the Modesto Municipal Code (“MMC”) and CVC including, but not limited to, MMC Section 3-2.1006 and CVC Section 22669 respectively;
E. Towing any other vehicle or vessel as may be ordered by any police officer, police employee, or any other employee or agent of the CITY who is properly authorized to order such tow. This shall include, but is not limited to, any vehicle that is submerged, either wholly or in part. This shall also include, but is not limited to, the removal and storage of any abandoned vessel from city streets/property, whether or not said vessel is attached to a trailer;
F. Towing trailers, boats, motor homes, etc.
2. TERM OF AGREEMENT
The initial term of this Agreement shall be for three (3) years, commencing September 18, 2022. The CITY reserves the right to extend this Agreement for two (2) additional, one-year terms, at the sole discretion of CITY. This Agreement is an “at will” agreement; either party may terminate this Agreement by giving the other party thirty (30) days written notice. #19..
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2 3. PAYMENT/FRANCHISE FEES PAYABLE TO CITY
A. FRANCHISEE agrees to pay to CITY a franchise fee in accordance with the terms of this Agreement.
B. Commencing with the start date and for the first two (2) years this Agreement, the FRANCHISEE shall pay CITY a franchise fee of $75.00 for each and every non-consensual tow, as defined in this Agreement, performed by FRANCHISEE on behalf of or at the request of CITY. The $75.00 franchise fee will not apply to abandoned and stolen vehicles towed by the Modesto Police Department C. Commencing with the third year of this Agreement (i.e. the 731st day from the start date) the FRANCHISEE shall pay CITY a franchise fee of $80.00 for each and every non-consensual tow, as defined in this Agreement, performed by FRANCHISEE on behalf of or at the request of CITY.
D. All franchise fees owed to CITY for each and every non-consensual tow performed by the FRANCHISEE shall be due and payable on a monthly basis as set forth in the invoice detailing the franchise fees owed. CITY shall receive payment as illustrated in Paragraph 3(E). Payment shall be made in the form of a preprinted company bank check, cashier’s check payable to the City of Modesto, or electronic payment.
E. CITY/Tow Franchise Administrator (TFA) shall mail an itemized bill/invoice of the franchise fees owed by FRANCHISEE to CITY on or before the 10th of each month, for the preceding month’s nonconsensual tows. Payment on the invoice is due to the CITY by the 1st day of the following month. (E.g. FRANCHISE fees for the month of January will be invoiced and mailed by February 10th.
Payment of the total amount invoiced shall be post marked or received by CITY no later than March 1st, everyday thereafter the invoice is delinquent.)
F. Payments shall not be made contingent on any payments due or payable to the FRANCHISEE by either CITY or the registered owner.
G. If any itemized bill/invoice is more than five (5) calendar days delinquent, the Chief of Police or his designee shall have the authority to immediately suspend the FRANCHISEE until payment of any and all billed/invoiced amounts are paid in full to CITY. Furthermore, if any itemized bill/invoice is more than sixty (60) calendar days delinquent, the Chief of Police or his designee shall have the authority to immediately terminate this Agreement.
4. INSURANCE
FRANCHISEE shall provide, at its own expense, and maintain at all times, the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to CITY as may be required by the City Clerk of CITY. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be sent by registered mail to the Risk Manager of CITY, via PINS Advantage Insurance Program for all of the following stated insurance policies.
A. Workers' Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.
B. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage, and minimum aggregate policy limit of $2,000,000. This insurance shall indicate on the certificate of insurance the following coverage’s and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations; and/or professional liability. #19..
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3 C. Commercial Business Automobile Liability - Bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000) shall be maintained. This insurance shall cover any automobile for bodily injury and property damage.
D. Uninsured Motorist - Legal minimum combined single limit.
D. On-Hook Coverage - Insuring the vehicle in tow with limits based on the size of the tow truck.
Class A tow truck - One Hundred Thousand Dollars ($100,000) Class B tow truck - One Hundred Fifty Thousand Dollars ($150,000) Class C tow truck - Two Hundred Thousand Dollars ($200,000) F. Garage Liability - Includes premises and operations. Coverage for bodily injury and property damage with a combined single limit of not less than One Million Dollars ($1,000,000).
G. Garage Keepers Liability - Shall be the same minimum as on-hook coverage for vehicles in the care, custody and control of the FRANCHISEE in the storage yard. i. If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the FRANCHISEE shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the FRANCHISEE to furnish, deliver or maintain such insurance and certificates as above provided, this FRANCHISE, at the election of the CITY, may be forthwith declared suspended or terminated. Failure of the FRANCHISEE to obtain and/or maintain any required insurance shall not relieve the FRANCHISEE from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the FRANCHISEE concerning indemnification. The CITY, its agents, officials, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
ii. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, employees, and volunteers for losses arising from work performed by FRANCHISEE for the CITY.
iii. The FRANCHISEE’S insurance policy(ies) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager.
iv. For any claims related to the work performed pursuant to this Agreement the FRANCHISEE’S insurance coverage shall be primary insurance as respects the CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, or volunteers shall be in excess of the FRANCHISEE’S insurance and shall not contribute with it.
v. FRANCHISEE shall either require any subcontractor to procure and to maintain during the term of the subcontract all insurance in the amounts specified above, or shall insure the activities of #19..
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4 subcontractors in the policy specified above. The limits of liability required may vary, depending on the type of permit or contract.
vi. Proof of insurance shall be in the form of a certificate of insurance and separate endorsements naming the CITY as an additional insured for all insurances except Workers’ Compensation.
Policy expiration or cancellation will immediately nullify this Agreement. FRANCHISEE’S insurance policy shall provide for a thirty (30) day advance notice to CITY in the event the insurance policy will expire or be cancelled. FRANCHISEE shall also immediately notify the Tow Administrator in the event the insurance policy has expired or is cancelled. Failure to maintain insurance or to notify the CITY and Franchise Tow Administrator of insurance lapses shall constitute a material breach of this Agreement and CITY shall have the right to immediately suspend and/or terminate this Agreement as determined by the Chief of Police or his designee.
vii. The ultimate responsibility for any damage to any vehicle or property or the loss of any vehicle or any property contained in the vehicle while the vehicle and/or property is in the FRANCHISEE’S care and/or custody rests with the FRANCHISEE. The FRANCHISEE shall reimburse the vehicle or property owner for any loss or damage which has been identified in a Modesto Police Department Motor Vehicle Report or other official document and is not covered by FRANCHISEE’S insurance.
viii. Any deductibles or self-insured retention must be declared to and approved by the City of Modesto Risk Manager.
5. HOLD HARMLESS AGREEMENT
FRANCHISEE shall hold CITY, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities and damages from every cause, including but not limited to, injury to person or property or wrongful death, with the indemnity to include reasonable attorney's fees, and all costs and expenses, arising directly or indirectly out of any act or omission of FRANCHISEE, whether or not the act or omission arises from the sole negligence or other liability of CITY, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
6. PROHIBITION OF GIFTS
A. FRANCHISEE shall be subject to CITY’s prohibition against acceptance of any gift by a CITY officer or employee.
B. FRANCHISEE agrees not to offer any CITY officer or employee any gift. In addition to any other remedy(ies) CITY may have at law or equity, CITY may immediately terminate this Agreement for a violation of this Paragraph notwithstanding any provision of this Agreement to the contrary.
7. DRIVERS/EMPLOYEES
A. FRANCHISEE shall, at a minimum, maintain the following information for each employee/driver providing services to CITY pursuant to this Agreement.
i. Full name
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5 ii. Date of birth.
iii. Valid California Driver’s License number and photocopy of said driver’s license. iv. Copy of Social Security Card
v. Job title-description.
vi. Current home address
vii. Current phone number.
viii. Copy of employment application.
ix. Medical certificate (if applicable)
B. It is the responsibility of FRANCHISEE to maintain a sufficient number of employees and/or properly licensed and permitted drivers to meet all the terms and conditions set forth in this Agreement. Any violation of CVC Section 12500 or 14601 through 14601.5, by a FRANCHISEE or FRANCHISEE’S employee/driver which is committed while in the process of providing towing service for the CITY under the terms of this Agreement, may be grounds for immediate suspension of this Agreement, notwithstanding any provisions of this Agreement to the contrary.
C. At the start of this Agreement, FRANCHISEE shall provide to the Tow Franchise Administrator a current list of its employees who will be providing services under the terms of this Agreement. Any drivers hired thereafter that will provide services to CITY pursuant to the terms of this Agreement and/or any change in the employment status of any driver including, but not limited to, suspension or dismissal from employment, shall be reported to the Franchise Tow Administrator within twenty-four (24) hours.
D. FRANCHISEE and all tow truck drivers providing services to CITY pursuant to the terms of this Agreement shall be enrolled in the Pull Notice Program with the Department of Motor Vehicles.
FRANCHISEE shall enroll all newly hired tow truck drivers in the Pull Notice Program within fifteen (15) calendar days of hire.
E. All drivers providing services for the CITY under this Agreement shall be covered under the Workers Compensation Insurance Policy required under section 3(A) of this agreement.
8. TOW DRIVERS PERMIT / IDENTIFICATION BADGES
A. FRANCHISEE tow driver(s) who provide services under this Agreement shall apply for and obtain a Tow Driver Permit / Identification Badge annually from the Modesto Police Department. A Tow Driver Permit fee will be charged for each permit applied for and shall be paid by the FRANCHISEE at the time of permit application. The fee, which may be amended from time to time, will be established by resolution of the Modesto City Council.
A. FRANCHISEE’S tow driver(s) shall wear a valid Modesto Police Department issued Tow Driver Identification Badge in plain view, at all times when responding to a CITY generated tow. If 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 obtain a #19..
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6 Tow Driver Permit / Identification Badge shall, at a minimum, be deemed a failure to provide adequate service. The purpose of these badges will be to identify those employees of the FRANCHISEE who have been fingerprinted by the City and have passed the record check by the Department of Justice.
C. A Tow Driver Permit application can be obtained from the Tow Franchise Administrator at the Modesto Police Department, 600 10th St., Modesto Ca. 95354. The Tow Driver Permit will be valid for one year from the date of issuance. It is the responsibility of the FRANCHISEE to ensure that all drivers maintain a valid Tow Driver Permit.
D. If a Tow Driver’s Permit / Identification Badge is lost or stolen, the tow driver must contact the Tow Franchise Administrator for a replacement. The cost of the replacement will be $10.00 per card.
E. A Tow Driver Permit shall NOT be issued to any of the following persons:
i. Any person under the age of eighteen (18) years.
ii. Any person who is currently required to register pursuant to Section 290 of the California Penal Code;
iii. Any person who has been convicted of a crime involving any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, possession and/or sales of drugs or crimes of moral turpitude, unless a period of not less than five (5) years shall have elapsed since the date of conviction or the date of release from confinement for such offense, whichever is later;
iv. Any person not possessing a valid class specific driver’s license issued by the State of California
v. Any person on current probation or parole.
F. The requirement to currently possess a Tow Driver Permit shall be waived for a period of sixty (60) calendar days following the start date of this Agreement, to provide the CITY sufficient time to process all Tow Driver Permit applications. FRANCHISEE shall ensure that all tow drivers who are to provide services under this agreement, and who do not possess a Tow Driver Permit at the start of this agreement apply for a Tow Driver Permit within ten (10) calendar days following the start date of this Agreement Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
G. All identification badges are the property of the City and will be returned by the FRANCHISEE to the City within forty-eight (48) hours of an employee’s separation. FRANCHISEE will provide a current list of all drivers. 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 of drivers.
H. Any employee of the FRANCHISEE that has left employment with said FRANCHISEE and returned and been rehired must complete an additional background check before performing services pursuant to this Agreement.
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7 I. Nothing herein shall prohibit the Chief of Police, or his designee from denying the issuance of, or imposing an immediate suspension and/or termination of, any Tow Driver Permit when the applicant’s/permit holder’s conduct, in the opinion of the Chief of Police, or his designee, is considered
to be a danger to the motoring public or who has engaged in conduct constituting a violation of this Agreement.
9. DEMEANOR AND CONDUCT
While providing towing services pursuant to this Agreement, the FRANCHISEE, its employee(s) and/or agents shall refrain from any of the following acts of misconduct:
A. Rude or discourteous treatment of the public or CITY employees.
B. Lack of service or refusal to provide service to the public or CITY employees.
C. Any act of sexual harassment or sexual impropriety.
D. Unsafe driving practices.
E. Exhibiting any objective symptoms of alcohol and/or drug intoxication. FRANCHISEE/tow truck driver shall submit to a Preliminary Alcohol Screening Test upon demand of a peace officer.
F. Appearing at the scene of a CITY-generated tow with the odor of an alcoholic beverage emitting from his/her breath or person. FRANCHISEE /tow truck driver shall submit to a Preliminary Alcohol Screening Test upon demand of a peace officer.
G. Appearing at the scene of a CITY-generated tow without being attired in the FRANCHISEE’S established uniform and Identification Badge. A description of which shall be provided to the Tow Franchise administrator in writing prior to the commencement of this Agreement. At a minimum, the name of the tow business and the name of the employee shall be displayed on the uniform shirt.
H. However, nothing herein shall prohibit the Chief of Police, or his designee, from imposing an immediate suspension and/or termination on any FRANCHISEE and/or employee(s) whose conduct, in the opinion of the Chief of Police, or his designee, is considered to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement.
I. All complaints received by the Modesto Police Department against the FRANCHISEE or its agent(s) or employee(s) will be accepted and investigated in a fair and impartial manner. At a minimum, any substantiated complaint will be deemed a failure to provide adequate service. Furthermore, as a result of the investigation, the Chief of Police or his designee may initiate such disciplinary action as he or she deems appropriate.
J. FRANCHISEE must notify CITY of all contracts with other cities or governmental agencies to provide tow services within California. Any FRANCHISEE that is under contract with any other city or agency and who is either suspended or terminated by that city or agency shall notify in writing the CITY/ Tow Franchise Administrator within twenty-four (24) hours of such suspension or termination, Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
10. FACILITIES
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8 A. FRANCHISEE shall maintain an office facility with a primary storage yard and interior storage within two (2) miles of the Modesto City limit.
B. Hours of Operation:
i. The business office shall be open to the public, staffed and available for vehicle releases, storage, inquiries, telephone calls and all other business purposes during business hours. Business hours are defined as Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m., except the following observed holidays: New Year’s Day, Martin Luther King Jr. Day, Presidents Day, Memorial Day (observed), Independence Day, Labor Day, Veterans’ Day (observed), Thanksgiving Day, Day after Thanksgiving, Christmas Eve Day, and Christmas Day. ii. In order to ensure that the vehicle owner or his/her agent may claim vehicles towed on behalf of the CITY at any time, on any day and to promptly release CITY towed vehicles, the FRANCHISEE must have an employee available after business hours, who can arrive at the primary office facility within thirty (30) minutes of a request by the CITY or a citizen. Vehicle owners or their agents who request entry to the storage facilities after business hours may be assessed an after-hour gate fee. CITY shall not be assessed an after-hour gate fee.
11. BUSINESS OFFICE
A. FRANCHISEE shall have an accessible public restroom that complies with all federal, state and local laws and regulations and FRANCHISEE shall have a telephone available for customers to use.
B. FRANCHISEE shall display the FRANCHISEE’S business name, address and telephone number at the primary business and secondary storage lot/facility location with a sign clearly visible day and night from the street.
C. Shall be neat and clean in appearance.
D. The following documents, printed in a minimum of 12-point type (unless otherwise stated or required by the California Vehicle Code) shall be posted by FRANCHISEE in the Primary business office in a conspicuous location clearly visible to the public
i. Name and address of FRANCHISEE’S insurance broker carrying the insurance required pursuant to this Agreement;
ii. A notice explaining the procedure by which unclaimed vehicles are sold at public auction stating that all in attendance at such auction shall have an equal opportunity to bid. Notice shall include the locations of such auctions and publications in which such auctions are advertised. iii. “Vehicle Impound Rights and Obligations” informing the public of their rights pursuant to CVC Section 22852.
iv. A notice advising that complaints against FRANCHISEE related to CITY generated nonconsensual tows can be made by contacting the Modesto Police Department, Tow Franchise Administrator, 600 10th St., Modesto Ca. 95354, (209) 572-9500. This notice shall be displayed in a conspicuous place clearly visible to the public in lettering not less than 1” in size. #19..
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9 iv. Maximum Fee/Rate Schedule for CITY generated non-consensual tows. This notice shall be displayed in a conspicuous place clearly visible to the public in lettering not less than 1” in size.
E. The facility shall have a telephone, on site fax machine and the necessary computer equipment to properly run the tow management system software and to send and receive email.
E. If an operator’s place of business is staffed with only one employee, the business office may be closed for one hour at lunch.
i. A sign shall be posted which reflects a lunch closure and phone number where a request by a vehicle’s owner/agent shall result in an immediate response to release property and/or vehicle. ii. Response to the office shall be within thirty (30) minutes.
12. STORAGE LOT
A. FRANCHISEE’S lot(s) must have an improved surface (e.g., gravel, concrete, paved) and the storage lot(s) shall be free of litter, debris and weeds.
B. The storage lot(s)/facilities must be adequately lit during hours of darkness.
C. The storage lot(s) must comply with all applicable local, state and federal rules, regulations and laws.
D. Stored vehicles shall be parked with a minimum of two (2) feet of clearance on each side and one (1) foot of clearance in the front and one foot of clearance in the rear.
E. The storage lot(s)/facility(ies) shall have interior storage used exclusively for the storage of impounded/stored vehicles.
F. Secondary storage locations may be utilized, however, neither customers nor CITY shall be charged any additional fees for vehicles stored at a secondary facilities. Secondary storage lots/facilities must be within two (2) miles of the Modesto City limit. In addition, all vehicles must be released to the registered owner or their agent at the primary business location. Both primary and secondary storage lots shall be enclosed by a solid wall or chain link fence at least six (6) feet in height for maximum security. Said wall or fence shall comply with all local, state and federal rules, ordinances, codes and regulations.
G. All towed vehicles shall be stored on private property only. At no time shall a towed vehicle be deposited, placed, left standing or stored on a public roadway or right of way.
H. A request for outside or inside storage on a CITY generated non-consensual tow by a customer shall be honored. If no request is made, the vehicle shall be stored in the least costly manner to the customer.
I. It is the responsibility of the FRANCHISEE to determine and maintain a sufficient amount of storage to meet all the terms and conditions of this Agreement.
13. TRUCKS
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10 A. FRANCHISEE shall own or lease, and have in their possession a minimum of two (2) fully operational Tow Trucks, as defined in Section 615(a) of the California Vehicle Code, with a minimum GVWR of 14,000 pounds, a minimum of one (1) tow truck shall be capable of towing all vehicles with a (GVWR) up to and including 10,000 pounds. All tow trucks must be currently registered with the California Department of Motor Vehicles and must display a current Modesto Police Department inspection sticker.
B. Tow Truck Classifications and Equipment Specifications:
i. 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 the purpose. This auxiliary equipment shall be used when appropriate. ii. Tow truck equipment and specifications listed are the minimum acceptable. Auxiliary equipment will be required in each class.
iii. Equipment Limitations: All towing equipment, recovery equipment, and carrier ratings are based on structural factors only. Actual towing, carrying, and recovery capacity may be limited by the capacity of the chassis and the optional equipment selected. iv. Towing Limitations:
The criteria to use in determining the safe towing limits for a tow truck are:
a. The total weight of the tow truck, including the lifted load, must fall within the manufacturer’s GVWR and not exceed either the Front or Rear Axle Weight Ratings (FAWR/RAWR).
b. The tow truck must meet all applicable local, state and federal standards, regulations and laws.
c. For proper steering and braking, the front axle load must be at least 50% of its normal or unladen weight after the load is lifted.
v. Identification Label
Each piece of towing equipment shall have a label or identification tag permanently affixed to the equipment in a prominent location to identify the manufacturer, serial number, model and rated capacity when applicable.
vi. Recovery Equipment Rating
The basic performance rating of the recovery equipment is the weight the equipment can lift in a winching mode when the boom is static at a 30-degree elevation with the load lines vertical and the lifting cables sharing the load equally, measured with a live load (weight or load cell). a. The structural design of the recovery equipment must have a higher load capacity than the performance rating(s).
b. Winches shall conform to or exceed the specifications set forth by the Society of Automotive Engineers (SAE) Handbook, SAE J706.
c. All ratings for cable and chain assemblies are for the undamaged assembly condition. All cable and chain assemblies shall be the same type, construction, and rating as specified by the Original Equipment Manufacturer (OEM) for the equipment. vii. Safety Chains:
Safety chains shall be rated at no less than the rating specified by the OEM. #19..
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11 viii. Control/Safety Labels:
All controls shall be clearly marked to indicate proper operation as well as any special warnings or cautions.
ix. Wire Rope (Cable):
Wire rope shall be maintained in good condition. Only wire rope with swaged ends with metal sleeves in the loops shall be approved for use on CITY generated tows. Wire rope is not in good condition when it is stranded, knotted, crushed, excessively rusty, kinked, badly worn, when there are two or more wires broken in lay length, or when there is other visible evidence of loss of strength.
x. Class A – Light Duty: For the purposes of this Agreement, a Class A tow truck is defined as a tow truck that has a manufacturer’s GVWR of at least 14,000 pounds. xi. Class B – Medium Duty: For the purposes of this Agreement, a Class B tow truck is defined as a tow truck with a GVWR of at least 26,001 pounds. The tow 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.
xii. Class C- Heavy Duty: For the purposes of this Agreement, a Class C tow truck is defined as a tow truck with a GVWR of at least 48,000 pounds. The tow truck shall be equipped with air brake and a tractor protection valve or device, and be capable of providing and maintaining continuous air to the towed vehicle.
xiii. Special Equipment: For the purpose of this Agreement, Special Equipment used by Class C Heavy Duty tow truck is defined as equipment needed to properly and safely tow or recover a wide variety of vehicles that necessitate equipment specifically designed for such a purpose.
C. All tow trucks and special equipment utilized by FRANCHISEE to provide CITY generated nonconsensual tow services shall pass a California Highway Patrol (CHP) Level One inspection annually. All special equipment shall be accounted for during the annual inspection. FRANCHISEE shall notify the Tow Administrator of the date and time of their scheduled CHP inspection as soon as practicable, and no later than two (2) weeks prior to the scheduled inspection date.
D. An inspection sticker will be issued by the Modesto Police Department Franchise Tow Administrator for each tow truck once the tow truck has passed CHP inspection. FRANCHISEE shall place the Modesto Police Department inspection sticker on the exterior windshield, upper left hand corner. Failure to display a valid inspection sticker shall, at a minimum, be deemed a failure to provide adequate service and may at the discretion of the officer or agent on scene result in the tow being cancelled. Storage lots/facilities will also receive a bi-annual inspection by the Modesto Police Department at no additional cost to the FRANCHISEE.
E All tow trucks shall maintain a broom, shovel, reflective triangles, fire extinguisher and a covered container with a minimum of 5 gallons of absorbent at all times.
F. FRANCHISEE hereby allows the Modesto Police Department to inspect any and all storage lots/facilities, used to store CITY generated tows, business office(s), and all equipment owned by FRANCHISEE at any time and for any reason, with or without notice. FRANCHISEE shall not utilize a tow truck on a CITY generated tow that has not been inspected and issued a valid inspection sticker by the Modesto Police Department.
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12 G. All tow trucks shall be clearly marked with the FRANCHISEE’S business name, address and telephone number on both sides of the vehicle FRANCHISEE shall not display any sign or engage in any advertisement indicating an official connection with the CITY or the Modesto Police Department; (e.g., “Official Modesto Police Tow,” “Approved by MPD,” etc.). This will not preclude the Chief of Police, or his designee, from implementing a system of marking and/or identifying particular tow trucks as having passed a Modesto Police Department inspection or as being certified as a FRANCHISEE for CITY generated tows.
H. Towed vehicles shall be loaded, secured and transported in compliance with this Agreement and all applicable local, state and federal rules, regulations and laws. Any violation of local, state or federal rules, regulations or laws, including, but not limited to a violation of the GVWR, safe loading requirements or a violation of the equipment requirements shall, at a minimum, be deemed a failure to provide adequate service.
I. It is the responsibility of the FRANCHISEE to provide a sufficient number of tow trucks to meet all the terms and conditions of this Agreement. The number of tow trucks listed in this Agreement is a minimum. It is the FRANCHISEES responsibility to determine the number and type of tow trucks required to fulfill all the requirements of this Agreement.
14. TOW MANAGEMENT SOFTWARE PROGRAM REQUIREMENTS
A. FRANCHISEE shall utilize the most recent, updated and upgraded tow management software program, to dispatch and track, via a web-based Internet connection. FRANCHISEE 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 tow management software program by the FRANCHISEE. The FRANCHISEE shall clearly identify and enter into tow management software program the name of the person to whom the vehicle was actually released. All City tow requests shall be made utilizing this program.
B. Failure at any time to have the tow management software program in full operation shall cause the immediate removal of the FRANCHISEE from the tow rotation and be grounds for immediate termination by the City. This does not include technical issues that occur from the tow management software and/or internet provider.
C. FRANCHISEE must enter into a separate agreement, or license for the tow management software program with the owner of the proprietary software. The City shall not provide the tow management software program, any licensing or sub-licensing thereof or any intermediary services for the procurement by the FRANCHISEE of the tow management software program. This Agreement shall not be executed by the City until the FRANCHISEE has demonstrated to the City’s satisfaction compliance with the requirements set forth herein. FRANCHISEE shall be liable for all fees, charges, prices, rates and service charges required from tow management software program.
D. The tow management software program shall be utilized in “real time” and all entries should reflect as such. Invoices shall be used from the tow management software program when releasing vehicles and be pursuant to section 22651.07 of the CVC. The only FRANCHISEE personnel authorized to utilize and access the tow management software program are those that have fully complied with the provisions set forth in Section 8, “Tow Driver’s Permit / Identification Badges” of this Agreement. If the FRANCHISEE is not in FULL compliance with the above stated requirement, the FRANCHISEE will be removed from the City towing rotation. Third party #19..
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13 dispatch call center personnel shall be exempt from the completion of the background process to utilize the tow management software program.
E. In the event that the current tow management software program fails to provide software services, or the City elects to utilize a new software provider, the FRANCHISEE will be required to use the replacement towing software system. If that occurs, all references to the tow management software program in this Agreement shall instead be interpreted as references to the new software program.
15. TOWING AND STORAGE CHARGES
A. The following schedule reflects the maximum rates established for services or materials in connection with any vehicle towed pursuant to a CITY generated non-consensual tow which includes but is not limited to the following.
i. Towing of all vehicles impounded by the CITY for investigation, as evidence in a criminal case, asset forfeiture or vehicles towed under the CVC including, but not limited to, CVC Section 14607.6 (vehicle forfeiture);
ii. Towing of vehicles involved in accidents, and/or stalled vehicles obstructing traffic, and/or vehicles illegally parked, and/or vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or vehicles whose driver has been arrested and/or detained and cannot drive the vehicle, and/or vehicles under the 30-day impound authority including, but not limited to, CVC Section 14602.6, and/or vehicles with five (5) or more outstanding parking citations;
iii. Towing of all vehicles necessitating special procedures to ascertain vehicle identification numbers, VIN tows, in compliance with requirements of the CVC; iv. Towing of any abandoned vehicle, inoperative vehicle, or abated vehicle, from any street, alley, highway, or any other private or public property in the CITY pursuant to the MMC and CVC including, but not limited, to MMC 3-2.1006 or CVC 22669 respectively; v. Towing any other vehicle or vessel as may be ordered by any police officer, police employee, or any other employee or agent of the CITY who is properly authorized to order such tow. This shall include, but is not limited to, any vehicle that is submerged, either wholly or in part. This shall also include, but is to, the removal and storage of any abandoned vessel from city streets/property, whether or not said vessel is attached to a trailer. vi. Towing trailers, boats, motor homes, etc. (ie) Trailer Towing Class A; Ball Hitch B. MAXIMUM CHARGES
Time expended on a CITY generated tow shall be charged at a rate not to exceed the rates set forth hereinafter. There shall be no additional charge(s) for towing after 5 p.m., weekend tows, holiday tows, use of a dolly or any other equipment, mileage and labor, which includes, but is not limited to, crane charges, winching and recovery from areas not accessible to the tow truck.
FRANCHISEE shall collect all towing and storage charges from the vehicle owner unless otherwise stated in this Agreement.
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14 Tow Fees
Year 1
Class A tow (GVWR – 14,000 pounds) $245.00
Class B tow (GVWR – 26,001 pounds) $400.00
Class C tow (GVWR – 48,000 pounds) $550.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $125.00 (any vehicle towed to MPD) Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 2
Class A tow (GVWR – 14,000 pounds) $250.00
Class B tow (GVWR – 26,001 pounds) $405.00
Class C tow (GVWR – 48,000 pounds) $560.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $130.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 3
Class A tow (GVWR – 14,000 pounds) $255.00
Class B tow (GVWR - 26,001 pounds) $410.00
Class C tow (GVWR – 48,000 pounds) $570.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $135.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
In the event that CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for towing shall be:
Year 4
Class A tow (GVWR – 14,000 pounds) $260.00
Class B tow (GVWR – 26,001 pounds) $415.00
Class C tow (GVWR – 48,000 pounds) $575.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $140.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
Year 5
Class A tow (GVWR – 14,000 pounds) $265.00
Class B tow (GVWR – 26,001 pounds) $420.00
Class C tow (GVWR – 48,000 pounds) $600.00
Class C- Special Equipment CHP Program Rate
Recovered Stolen Vehicles tow $170.00
Evidence Vehicle tow $145.00
Evidence Vehicle Tow-Heavy Duty Class “C” $550.00
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15 Additional Charge for 2nd tow truck required for removal of a vehicle. $75.00 (Must have direct approval by MPD officer on scene and must be itemized on the invoice.) Storage Fees:
Year 1
Outside Daily Storage Fee ………………….……...$75.00
Inside Daily Storage Fee……………………………$80.00
Class B/C Storage Fee…………………….. …….. $85.00
After business hours gate fee……………… …….. $100.00
Year 2
Outside Daily Storage Fee ………………………... $80.00
Inside Daily Storage Fee………………………….. $85.00
Class B/C Storage Fee…………………….. …….. $90.00
After business hours gate fee……………… …….. $100.00
Year 3
Outside Daily Storage Fee………………………... $85.00
Inside Daily Storage Fee…………………………. $90.00
Class B/C Storage Fee…………………………… $95.00
After business hours gate fee……………… …….. $100.00
In the event that the CITY exercises its right to extend the term of this Agreement pursuant to Paragraph 2, Term of Agreement, the maximum amount allowed for storage fees shall be:
Year 4
Outside Daily Storage Fee………………………... $90.00
Inside Daily Storage Fee…………………………. $95.00
Class B/C Storage Fee…………………………… $100.00
After business hours gate fee……………… …….. $100.00
Year 5
Outside Daily Storage Fee………………………... $95.00
Inside Daily Storage Fee…………………………. $100.00
Class B/C Storage Fee…………………………… $105.00
After business hours gate fee……………………… $100.00
City of Modesto Vehicle Release Fee:
Illegal Parker / Abandoned Vehicle $120.00
Unlicensed Driver / Expired Registration $160.00
Suspended / Revoked Driver / Arrested Driver $250.00
DUI Driver $450.00
14602.7 CVC Seized Vehicles $450.00
The above rates represent the maximum a FRANCHISEE may charge on a CITY generated nonconsensual tow. A FRANCHISEE is not precluded from charging less when deemed appropriate. No FRANCHISEE, or their employee or agent, shall refer to any rate as the minimum required or set by CITY.
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16 C. Time expended in excess of sixty (60) minutes on-scene may be charged in one-minute increments at a rate of $90.00 per hour and shall be properly documented on the FRANCHISEE’S invoice.
These additional service fees may be charged only under the following conditions or circumstances:
i. When directed to “stand-by” by an authorized CITY employee or agent. “Stand-by” fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number.
ii. Necessary accident and/or recovery operations and when directed and approved by an authorized CITY employee or agent. This fee is the responsibility of the registered owner and shall be listed on the invoice with the name of the CITY employee or agent authorizing this charge.
iii.Special Equipment fees for Heavy Duty Rotation Tows: Pre-Authorization is required from the officer in charge of the scene and must be itemized on the invoice and all pricing shall follow what is on file with the California Highway Patrol related to their tow agreement program.
iv. When directed to tow a vehicle back to the Modesto Police Department for “Evidence” outside of the City of Modesto city limits.
D. Lock out fees: When directed by an authorized CITY employee or agent to unlock a vehicle. Lock out fees may be charged at a rate of $55.00 per vehicle. Lock out fees shall be billed to the Modesto Police Department on a separate invoice and shall include the name of the CITY employee or agent who authorized the charge and the Modesto Police Department case number. (Ex. FRANCHISEE is called out to only unlock a vehicle so a search warrant can be executed.) Lock out fees cannot be charged in addition with towing fees. This type of call will count as the FRANCHISEE’s rotation call.
E. The schedule of rates charged by FRANCHISEE shall be available in the tow truck, and shall be presented upon demand to the person(s) for whom the non-consensual tow services were provided or his/her agent at the scene.
F. Vehicles stored twenty-four (24) hours or less shall be charged for no more than one-day storage.
Each day of storage thereafter shall be calculated by calendar day (Civil Code Section 3068.1).
G. If a request for a non-consensual tow is cancelled by the CITY or vehicle’s owner/agent prior to the FRANCHISEE taking possession of the vehicle, there shall be no charge to the CITY or to the vehicle owner by the FRANCHISEE
H. FRANCHISEE may charge a fee for lien sale preparations in compliance with California Vehicle Code Section 22851.12. All lien preparations and/or sales performed by FRANCHISEE shall be done in strict compliance with all applicable laws. All forms shall be accurate and complete.
I. Notwithstanding any other provision of this Agreement to the contrary, any violations of sections 15(A) through 15(G) shall, at a minimum, be deemed a failure to provide adequate service and a material breach of this Agreement, and shall constitute grounds for up to immediate termination of this Agreement.
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17 J. FRANCHISEE shall furnish a fully itemized billing to the vehicle owner or agent at the time of payment and/or upon request of the vehicle owner or agent. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service.
K. FRANCHISEE shall accept a valid bank credit card or cash tendered by the registered owner, legal owner or the owner’s agent claiming the vehicle for payment of towing and/or storage (CVC Section 22651.1). Appropriate credit card equipment shall be located at the primary business location and available for immediate processing from each tow truck. Failure to do so shall, at a minimum, be deemed a failure to provide adequate service L. A record of all vehicles towed by FRANCHISEE under this Agreement shall be retained by the FRANCHISEE and shall be readily available for inspection and/or transcription or copying at the primary business location of the FRANCHISEE for a minimum of three (3) years. Failure to retain and provide complete and accurate records upon request of the CITY shall, at a minimum, be deemed a failure to provide adequate service. All records shall contain the following information i. Date and time vehicle towed
ii. Modesto Police Department Case Number
iii. License Plate/Vehicle Identification Number
iv. Date and time of vehicle release
v. Year, Make and Model of Vehicle
vi. Copy of Modesto Police Dept. Vehicle Release (if applicable) vii. Date Lien Filed (if applicable)
viii. Date Lien Sale (if applicable)
ix. All Lien Documents (if applicable)
x. All DMV paperwork (if applicable)
M. FRANCHISEE shall post the Modesto Police Department case number on the windshield of any and all vehicles towed and stored by CITY. Failure to do so shall at a minimum be deemed a failure to provide adequate service.
N. A trailer with a vessel as a load (e.g. boat, motorcycle, jet ski,) shall be considered one vehicle for the purposes of the maximum rate allowed for tow and storage.
16. RELEASE OF VEHICLES
An authorized Modesto Police Department employee will authorize the release of a vehicle through the tow management software program. Once the tow management software program authorizes the release of a stored or impounded vehicle, it is the FRANCHISEE’s responsibility for the vehicle’s release. The FRANCHISEE is hereby granted authority to release to the registered owner, legal owner, or authorized representative, pursuant to section 22850.3 of the CVC.
17. RELEASE OF MULTI-DAY IMPOUNDS
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18 A vehicle impounded with a multiple day hold (ex: 30-day hold) may only be released prior to the impound period with written authorization by the City in the tow management software program. The tow management software program will automatically schedule the release date of an impounded vehicle.
18. UNAUTHORIZED RELEASE
Unauthorized release of an impounded vehicle, accidental or otherwise, not officially released by the City, and determined to be the fault of the FRANCHISEE, will result in the issuance of a violation as set forth in this Agreement.
19. RESPONSE / RESPONSE TIMES
A. FRANCHISEE shall respond to a dispatch order for a CITY generated tow and be on-scene within thirty (30) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, a community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request tow services. The dispatcher shall record the time of dispatch into the incident history. The dispatcher’s computer entry record shall be the official time piece for the time of dispatch. If the tow truck arrives on scene after the thirty (30) minute requirement, the dispatcher or the officer on scene shall log the time of arrival into the incident history. The officer’s or dispatcher’s computer entry record shall be the official time piece for the time of arrival of the tow truck.
Failure of the FRANCHISEE to respond to a call with necessary towing equipment (i.e. flat bed, conventional rig etc.) at the designated point of the tow within thirty (30) minutes may, at the discretion of the officer on scene result in the FRANCHISEE being cancelled. Three (3) failures by the FRANCHISEE to respond to a call at the designated point of tow within thirty (30) minutes in a calendar year, commencing April 13, 2014, shall result in a failure to provide adequate service
Exception: Tows requested off the Over Weight Vehicle List shall respond to a dispatch order and be on scene within forty-five (45) minutes of the time of dispatch by a Stanislaus Regional 911 dispatcher, a police officer, community service officer, employee, agent, or other officer of the CITY who has been duly authorized to request such tow services. Three (3) failures by the FRANCHISEE to respond to a tow request from the Over Weight Vehicle List and furnish a tow truck capable of towing the vehicle at the designated point of tow within forty-five (45) minutes shall be deemed a failure to provide adequate service.
B. Any officer or CITY employee may at his/her discretion cancel a tow that in his/her opinion is unable to provide the necessary equipment to safely tow the vehicle.
C. FRANCHISEE shall maintain a phone line dedicated to Stanislaus Regional 911. Said phone line will be staffed twenty-four (24) hours a day, seven (7) days a week, including weekends and holidays. If the FRANCHISEE fails to answer the dedicated phone, they will be passed and fall to the bottom of the list. Three (3) failures by the FRANCHISEE to answer their designated phone line in a calendar year, commencing ___________, 2017, shall result in a failure to provide adequate service.
20. NON-RESPONSE
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19 The FRANCHISEE shall update the tow management software program at the time of dispatch to a tow rotation request. If the FRANCHISEE is either unable to respond or unable to meet the maximum response time, the tow operator shall immediately update the tow management software program accordingly. If, after accepting the call, the FRANCHISEE is unable to respond or will be delayed in responding, the FRANCHISEE shall immediately update the tow management software program 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 tow management software program and reviewed by the City. Three (3) failures to respond to a City generated tow in a calendar year, commencing ____________, 2022, shall result in a failure to provide adequate service.
21. ROTATION TOW LIST
A. The CITY will make a good faith effort to provide an even distribution of work among the FRANCHISEES. A list shall be established for non-consensual towing of all vehicles with a GVWR of 10,000 pounds or less. FRANCHISEE agrees to the rotation system established by CITY.
B. A separate list (Over Weight Vehicle List) will be established for non-consensual towing of vehicles with a GVWR of 10,001 pounds or more. FRANCHISEES who own or lease a tow truck with a minimum GVWR of 26,001 pounds may be placed on the Over Weight Vehicle List on a voluntary basis. However, once placed on the Over Weight Vehicle List FRANCHISEE shall give thirty (30) calendar days written notice to the Franchise Tow Administrator in order to be removed from the Over Weight Vehicle List.
C. This Agreement applies to non-consensual towing as defined in this Agreement. Nothing contained herein shall be construed to regulate consensual tows.
D. CITY reserves the right to request any tow company, regardless of its position on the rotation tow list.
22. AUDITING OF CHARGES AND SERVICES
A. The CITY reserves the right to audit all records, charges, and/or services provided by FRANCHISEE pursuant to this Agreement. CITY’s duly authorized representative shall have access to and the right to examine, transcribe, and/or copy, during business hours, as defined in Section 10 (B) (i), any and all reports, records, documents, and/or files necessary in order to audit and verify charges and services provided by FRANCHISEE under this Agreement. A complete record of all vehicles towed by FRANCHISEE pursuant to this Agreement, including, but not limited to; date and time of tow, Modesto Police Department case number, license plate number, vehicle identification number, date and time of release, year, make and model of vehicle, copy of Modesto Police Department vehicle release (if applicable), all lien and sale documents (if applicable) and vehicle disposition, shall be readily available for inspection at the primary business location of the FRANCHISEE and provided to CITY promptly upon request, and shall be retained for a minimum of three (3) years.
23. RESPONSIBILITY
A. FRANCHISEE shall be responsible for the protection of all CITY generated towed and/or stored vehicles in its possession until the vehicle has been released to its owner, or disposed of through #19..
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20 the legal process, and shall be responsible for safeguarding all articles or property left in the towed and/or stored vehicle.
B. FRANCHISEE shall release personal property from a towed/stored vehicle at the request of the vehicle owner or his/her agent, subject to the below listed exceptions. (Personal property is considered to be items, which are not affixed to the vehicle; i.e. papers, cell phones, pull out stereos, clothes, luggage, tools, cargo, etc.) EXCEPTION: No personal property shall be released from vehicles impounded by CITY for evidence, investigation, asset forfeiture or vehicle forfeiture without prior authorization from the towing officer or the Tow Franchise Administrator.
C. Any vehicle towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) and stored by the FRANCHISEE shall be stored at the primary storage facility and shall not be moved until authorized by the Chief of Police, the Tow Franchise Administrator or their designee. The need for inside storage shall be indicated on the tow sheet. Vehicles towed by the Modesto Police Department for evidence, investigation, asset forfeiture and vehicle forfeiture (CVC Section 14607.6) shall not be lien sold until such time as the Modesto Police Department Tow Franchise Administrator provides the FRANCHISEE with a written release of the vehicle.
D. FRANCHISEE shall not release any vehicle that is marked as an “Agency Hold” on the Vehicle Report without a the release in the tow management software program and/or signed Modesto Police Department Vehicle Release form.
E. FRANCHISEE shall ensure that all debris and fluids are cleared from the scene of a CITY generated tow prior to leaving the scene.
24. COMPLIANCE WITH THE LAW
A. FRANCHISEE and its tow truck driver(s) and employees must be in compliance with all terms and conditions of this Agreement and all applicable federal, state, and local laws, rules, and regulations which are in force or become effective during the franchise period which, in any manner, affect towing and storage of vehicles, including, without limitation, the requirement that any person who drives a tow truck for FRANCHISEE is properly licensed and permitted and that all tow trucks meet any and all applicable Vehicle Code requirements.
B. In the event that FRANCHISEE is cited, arrested, charged, or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, FRANCHISEE may be immediately suspended or terminated at the discretion of the Chief of Police. FRANCHISEE shall notify the Tow Administrator within seventy-two 72 hours of any citation, arrest or conviction of the FRANCHISEE.
C. In the event that FRANCHISEE’s employee is cited, arrested and/or charged and/or convicted for any misdemeanor or felony driving offense, any crime involving stolen or embezzled vehicles, fraud related to the towing business, stolen or embezzled property, crimes of violence, driving while under the influence of alcohol and/or drugs, possession and/or sales of drugs or crimes of moral turpitude, notwithstanding any provision of this Agreement to the contrary, the employees Tow Driver Permit may be immediately suspended or revoked. FRANCHISEE shall #19..
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21 notify the Tow Administrator within seventy-two (72) hours of FRANCHISEE becoming aware of any such citation, arrest, charging or conviction.
D. In the event that any FRANCHISEE employee is cited for any two (2) infractions while operating a tow truck within a rolling 12-month period, the employee’s tow driver’s permit may, at the discretion of the Chief of Police, be suspended or terminated. The FRANCHISEE shall notify the Tow Administrator within seventy-two (72) hours of becoming aware of any such citation having been issued to an employee.
E. Nothing in Paragraph 19 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
25. FAILURE TO PROVIDE ADEQUATE SERVICE/DISCIPLINARY ACTION A. Except as otherwise provided in this Agreement, FRANCHISEE’S failure to meet any of the terms and conditions of this Agreement shall be deemed a failure to provide adequate service.
Any failure to provide adequate service is a violation of the terms of this Agreement and shall result in the following disciplinary action unless otherwise stated in this Agreement:
i. First violation within a calendar year commencing with the start date of the agreement, ________, 2022, Written Notice via certified mail
ii. Second violation within any calendar year commencing _______, 2022 Written Warning via certified mail.
iii. Third violation within any calendar year commencing _______, 2022, thirty (30) Day Suspension.
a. Upon serving a suspension of any length the FRANCHISEE must pay a reinstatement fee of five hundred dollars ($500.00). The suspension will not be lifted until the reinstatement fee is received by the Chief of Police or his/her designee through the Franchise Tow Coordinator.
B. Nothing herein shall be deemed to prohibit the Chief of Police, or his designee, from imposing an immediate suspension and/or termination on any FRANCHISEE and/or employee(s) whose conduct, in the opinion of the Chief of Police, or his designee, is considered to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement.
C. Nothing in Paragraph 20 of this Agreement shall in any way affect the “at will” nature of this Agreement, or the right of any party to this Agreement to terminate it without cause on thirty (30) day written notice, as provided in Paragraph 2, above.
26. FRANCHISEE’S REVIEW/APPEAL
A. FRANCHISEE may request a review of a violation within ten (10) calendar days of receipt of the notice of violation by submitting a request in writing to the Administrative Services Supervisor. If a review is requested by FRANCHISEE, it shall be done as soon as practicable by the Administrative Services Supervisor or his/her designee. FRANCHISEE shall be notified in writing of the Administrative Services Supervisor’s decision(s) within ten (10) calendar days of #19..
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22 the date of completion of the review. The Administrative Services Supervisor’s decision on review of the violation shall be final.
B. Following receipt of a notice of suspension, FRANCHISEE may appeal the suspension by submitting a request in writing to the Chief of Police within ten calendar days of receipt of the decision. If an appeal is requested, it shall be done as soon as practicable. On appeal, the FRANCHISEE may raise the alleged invalidity of any violation upon which the CITY relies in imposing the suspension for which review has previously been sought. The appeal shall be decided in a hearing conducted in accordance with the provisions of section 1-6.504 through 1-
6.507 of the Modesto Municipal Code by an Administrative Hearing Officer appointed by the City Manager or his/her designee.
C. A suspension resulting from a violation shall not be imposed until the review and/or appeal process for that violation or suspension, if it has been timely requested, has been exhausted, except where this Agreement permits an immediate suspension or termination or where a FRANCHISEE’S conduct is deemed to be a danger to the motoring public or who has engaged in conduct constituting a gross violation of this Agreement. Failure to request a review or appeal in writing within the time specified or failure of FRANCHISEE to appear at a scheduled review or appeal hearing shall constitute a waiver of his or her right to a review or appeal and adjudication of the violation and/or disciplinary action and the violation and/or disciplinary action shall become final.
27. MOTOR CARRIER PERMIT/OTHER PERMITS AND LICENSES
A. FRANCHISEE must possess a current/valid Department of Motor Vehicles Motor Carrier Permit.
B. FRANCHISEE and his/her officers, officials, employees and agents shall obtain and maintain during the term of this Agreement all necessary licenses, permits and certificates required by law for the conduct of FRANCHISEE’S activities and for the provision of services hereunder, including a business license issued by the City of Modesto.
C. Failure to comply with any provision of Paragraph 23 shall be grounds for immediate suspension and/or termination of this Agreement.
28. EXPERIENCE/SALE OR TRANSFER OF BUSINESS
A. FRANCHISEE must have owned a towing business in the State of California for a minimum of two (2) years immediately preceding the date of its application for a non-exclusive nonconsensual towing service franchise.
B. FRANCHISEE agrees that sale or transfer of the controlling interest in FRANCHISEES Tow Company shall immediately terminate this Agreement.
29. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding among the parties with regard to the matters herein.
The terms of this Agreement are contractual and not a mere recital. There have been no representations, promises, or inducements of any kind made by any party other than those that appear as signatories hereto. Each covenant and condition mentioned in this Agreement is material consideration for each party to enter into this Agreement.
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23 30. PARTIES TO AGREEMENT.
This Agreement is intended to confer rights and benefits only on the signatories hereto and is not intended to confer any right or benefit upon any other person or entity. No person or entity other than the signatories hereto shall have any legally enforceable right under this Agreement. All rights of action of any breach of this Agreement are hereby reserved to the signatories hereto.
31. VOLUNTARY AND KNOWING AGREEMENT.
Each of the parties hereto states that this Agreement voluntarily and with knowledge of its significance and legal effect.
32. AUTHORITY AND COMPETENCY.
Each party hereto expressly warrants and represents that the person executing this Agreement on its behalf is legally competent to and is authorized to enter into this Agreement and to bind said party to their representations, terms, conditions, and covenants as set forth herein.
33. BINDING EFFECT.
This Agreement shall be binding upon and shall insure to the benefit of the signatories and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, predecessors, successors, affiliated and related entities, officers, directors, principals, agents, employees, assigns, representatives, and all persons, firms, associations, and/or corporations connected with them including, with limitation, their insurers, insureties, and/or attorneys.
34. SEVERABILITY.
If any provision or any part of any provision of this Agreement is for any reason held to be invalid, unenforceable, or contrary to any public policy, law, stature and/or ordinance, the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.
35. ASSIGNMENTS.
The TOWING CARRIER shall not assign, subcontract or transfer by operation of law any obligation hereunder without prior written consent of the CITY.
36. INDEPENDENT CONTRACTOR.
The TOWING CARRIER is and shall at all times remain as to the CITY a wholly independent contractor. Neither the CITY nor any of its officers, employees nor agents shall have control over the conduct of the TOWING CARRIER nor any of the TOWING CARRIER’S officers, employees nor agents, except as herein set forth. The TOWING CARRIER shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers or agents of the CITY.
37. NOTICE This Agreement may be terminated by either party, without prejudice, upon thirty (30) days written notice to the other party. Any notice to be given pursuant to this Agreement by either party to the other shall be deposited with the United States Postal Service, postage prepaid. #19..
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24 PHONE NUMBER(S)
Dizney & Wise Towing
BUSINESS NAME
________________________________________
24-HOUR NUMBER – DISPATCH
_________________________________________
24-HOUR NUMBER – ALL OTHER INQUIRIES
____________________________________ ______________________________
SIGNATURE PRINTED NAME
____________________________________
DATE
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25 MEDIUM/HEAVY DUTY TOW LIST
________________________________________________ ________________________
SIGNATURE DATE
___________________________________________
PRINTED NAME
Dizney & Wise Towing
BUSINESS NAME
I am not interested in being placed on the VOLUNTARY
medium/heavy duty vehicle list
Please place me on the VOLUNTARY medium/heavy
duty vehicle list
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26 IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. ___________, adopted by the Council of the City of Modesto on the _____ day of August, 2022, and _Dizney & Wise Towing, has caused this agreement to be duly executed in duplicate as of the Effective Date.
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
August 9, 2022
Date: July 11, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Brandon Gillespie, Chief of Police
SUBJECT: Non-Emergency Transport Application for MacIntosh Transport LLC CONTACT: Robert Reyna, Captain, [email protected] (209) 572-9500 DESCRIPTION:
Hearing to consider the application and issuance of a permit to operate as a non-emergency medical transport company to MacIntosh Transport LLC in the City of Modesto. (Funding Source:
General Fund)
STRATEGIC PLAN ELEMENT:
This item is related to the 2020-2025 Strategic Plan goal of improving community safety and quality of life through a combination of prevention and intervention efforts that address safety and its underlying issues.
BACKGROUND:
The City allows non-emergency medical transport companies to apply for a non-emergency transport permit. In addition to the application, the transport company is required to pay a filing fee of $1,000 and provide all the necessary documents and information as outlined in Modesto Municipal Code 3-9.01 to 3-9.20. Once the application, documentation, and necessary fees have been received by the Modesto Police Department, a background investigation must be completed by the department. Upon a successful completion of the background investigation, approval by Council is required. After approval from Council has been provided, the permit will be issued by the Modesto Police Department.
Currently there are three permitted ambulance companies in Modesto to provide non-emergency transport: Bay Medic Transportation, Star Nonemergent Transportation, and Provident Senior Solutions Inc.
DISCUSSION:
MacIntosh Transport LLC has applied to operate a non-emergency medical transportation service in the City of Modesto. MacIntosh Transport LLC has paid the $1,000 filing fee to cover administrative, investigative, and other incidental costs associated with the application and have #20..
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City Council Meeting, August 9, 2022
Non-Emergency Transport Application for MacIntosh Transport LLC
provided all necessary information as outlined in Sections 3-9.01 to 3-9.20 of the Modesto Municipal Code. The Modesto Police Department concluded the required background investigation on MacIntosh LLC indicating the applicant has complied with the requirements contained in the Modesto Municipal Code 3-9.01 through 3-9.20, and recommended to staff to proceed with Council approval to issue the operational permit. Pursuant to Modesto municipal Code section 3-9.08, the Council shall grant MacIntosh Transport LLC a permit if it finds the following:
(a) That the vehicles described in the application and proposed to be used are appropriate for the purpose of nonemergency transport;
(b) That the color scheme, insignia, name, monogram or other distinguishing characteristics proposed to be used upon such nonemergency transport vehicles is not in conflict with and do not imitate any color scheme, insignia, name, monogram or other distinguishing characteristics used by any other person, in such manner as to mislead or tend to mislead, deceive, or defraud the public;
(c) That the applicant is fit, willing and able to perform nonemergency transport service and to conform to the provisions of this chapter, and such rules and regulations as may be promulgated by the Council. In making such findings, the Council shall take into consideration the character, experience, and responsibility of the applicant; (d) That the proposed nonemergency transport service is required by the public convenience and necessity. In making such finding, the Council shall take into consideration the number of nonemergency transport vehicles already in operation, whether existing nonemergency transport service is adequate to meet public need, and the probable effect of increased nonemergency transport service on local traffic conditions; and (e) None of the factors enumerated in Section 3-9.07 of this chapter exist.
FISCAL IMPACT:
MacIntosh Transport LLC will be required to pay a fee of $75 to renew the transport permit each year. They are also required to obtain a City Business license and renew it annually – which currently costs up to $75. Additionally, MacIntosh Transport LLC will be required to pay mill tax, which is currently at a rate of 0.002, on their gross receipts while operating in the City. Fees and mill tax paid to the City are revenue to the General Fund.
COMMITTEE RECOMMENDATION:
This item was not presented to Committee.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution accepting the application of MacIntosh Transport LLC issuing this entity a permit to operate as a non-emergency medical transport company in the City of Modesto.
Approved by:
Brandon Gillespie, Chief of Police
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City Council Meeting, August 9, 2022
Non-Emergency Transport Application for MacIntosh Transport LLC
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
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MODESTO CITY COUNCIL
RESOLUTION NO. 2022 -
RESOLUTION APPROVING THE APPLICATION OF MACINTOSH
TRANSPORT LLC, AND AUTHORIZING THE ISSUANCE OF A PERMIT TO
OPERATE AS A NON-EMERGENCY MEDICAL TRANSPORT COMPANY IN
THE CITY OF MODESTO
WHEREAS, MacIntosh Transport LLC has submitted an application to provide non-emergency medical transport services within the City of Modesto, and WHEREAS, MacIntosh Transport LLC has paid the required $1,000 filing fee and has provided all necessary information as outlined in Modesto Municipal Code Section 3-9.03-3-9.04, and
WHEREAS, the Modesto Police Department has completed background investigations regarding MacIntosh Transport LLC. per Modesto Municipal Code Section 3-9.05, and
WHEREAS, Council approval is required for MacIntosh Transport LLC to function as a non-emergency medical transport service provider within the City of Modesto, and
WHEREAS, a duly noticed public hearing was held by the City Council of the City of Modesto on August 9, 2022, at 5:30 p.m. in the Tenth Street Place Chambers located at 1010 Tenth Street, Modesto, California, to consider authorizing the issuance of a permit to MacIntosh Transport LLC for non-emergency medical transport service within the City of Modesto, and
WHEREAS, Modesto City Council finds that MacIntosh Transport LLC will serve the public convenience and necessity requirements. #20..
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NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the application of MacIntosh Transport LLC and issues MacIntosh Transport LLC a permit to operate as a non-emergency medical transport company in the City of Modesto.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 9th day of August, 2022, by Councilmember?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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OFFICE OF THE CITY CLERK
NOTICE OF SPECIAL MEETING
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
TUESDAY, AUGUST 9, 2022 at 4:00 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.
Any and all of the following agenda items are subject to action being taken by the Modesto City Council.
The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:
CLOSED SESSION
CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Section 54956.8 of the Government Code)
Property & Property Owners:
APN Address Owner Name
007-024-003, 3643 Maze Bl., Modesto Nita M. Wagner, as Trustee of the 007-024-004 & Nita M. Wagner Living Trust;
007-037-010 Jane M. Roos & Ralph E. Roos;
John Schallberger & Marie
Schallberger, Trustees, of the
Revocable Trust Dated November
3, 1992; Hans J. Wagner & Carla
Wagner; Donald Wagner; Julia A.
Wagner, as Trustee of the Julia A.
Wagner 1992 Trust, as their
interests appear of record;
Hans J. Wagner, III, Trustee of the
Hans J. Wagner III 2015 Trust
Negotiating Parties:
City Negotiators: James Staudinger, CPSI
Property Owners
Under Negotiation: Price and Terms
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CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Two Cases (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Manuel Ramirez v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ1697422, ADJ11027135, ADJ11299237
Greg Ewert v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ7834384, ADJ12420861, ADJ12658697, ADJ12451095
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Two Cases (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Martinez v. City of Modesto
Case No. 19-006820
Chipponeri v. City of Modesto
Case No. 2028661
August 5, 2022 BY ORDER OF THE CHAIR
/S
Diane Nayares-Perez, CMC, City Clerk
Posted pursuant to Government Code Section 54956 on the bulletin board at Tenth Street Place on at by
date time signature
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TO: THE CLERK OF THE CITY OF MODESTO
RE: CLOSED SESSION
Pursuant to Section 2-1.02 of the Modesto Municipal Code, you are hereby authorized and empowered to call a special Closed Session meeting of the Council of the City of Modesto to be convened on
TUESDAY, AUGUST 9, 2022 at 4:00 PM
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.
Any and all of the following agenda items are subject to action being taken by the Modesto City Council.
The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:
CLOSED SESSION
CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Section 54956.8 of the Government Code)
Property & Property Owners:
APN Address Owner Name
007-024-003, 3643 Maze Bl., Modesto Nita M. Wagner, as Trustee of the 007-024-004 & Nita M. Wagner Living Trust;
007-037-010 Jane M. Roos & Ralph E. Roos;
John Schallberger & Marie
Schallberger, Trustees, of the
Revocable Trust Dated November
3, 1992; Hans J. Wagner & Carla
Wagner; Donald Wagner; Julia A.
Wagner, as Trustee of the Julia A.
Wagner 1992 Trust, as their
interests appear of record;
Hans J. Wagner, III, Trustee of the
Hans J. Wagner III 2015 Trust
Negotiating Parties:
City Negotiators: James Staudinger, CPSI
Property Owners
Under Negotiation: Price and Terms
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CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
Two Cases (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Manuel Ramirez v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ1697422, ADJ11027135, ADJ11299237
Greg Ewert v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ7834384, ADJ12420861, ADJ12658697, ADJ12451095
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Two Cases (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Martinez v. City of Modesto
Case No. 19-006820
Chipponeri v. City of Modesto
Case No. 2028661
August 5, 2022 BY ORDER OF THE CHAIR
/S
__________________________
SUE ZWAHLEN, Mayor
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