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HomeMy WebLinkAboutC-4251 \\CO-70 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ARCADIA AND JAN'S TOWING FOR OFFICIAL POLICE TOW AND GARAGE STORAGE SERVICES 1. PARTIES AND DATE This Agreement is made and entered into this 7 day of u�S- ' , 2019 by and between the City of Arcadia, a charter city organized under a Constitution and laws of the State of California with its principal place of business at 240 West Huntington Drive, Arcadia, California 91007 ("City") and Jan's Towing, Inc. with its principal place of business at 1045 Kirkwall, Azusa, California, 91702. City and Jan's are sometimes individually referred to as "Party" and collectively as "Parties". 2. OBJECTIVES To establish an Official Police Tow Service ("OPTS") for the City of Arcadia ("City") to provide timely and professional towing and storage services for vehicles when a Police Officer or other authorized City representative requests towing services. 3. EFFECTIVE DATE OF AGREEMENT The effective date of this Agreement shall be the latter date upon which the authorized representative of the OPTS or the authorized representative of the City of Arcadia signs the Agreement. 4. EXCLUSIVE FRANCHISE FOR OFFICIAL POLICE TOW SERVICE The OPTS shall have the exclusive right to receive calls from the City during the term of this Vehicle Towing and Storage Agreement ("Agreement"), subject to the terms of this Agreement, to provide towing and storage services for vehicles which are involved in accidents, disabled, abandoned, impounded for evidence, impeding the flow of traffic or otherwise subject to being towed and stored at the direction of the City. 5. BASIS FOR ACCEPTANCE OF SERVICE The Chief of Police, or his/her designee, has the final authority to determine disputes as to the ability or authority to perform tow services for the City of Arcadia. Whenever a driver or owner is requesting a towing service and is unable to specify a particular business, or when a police officer, or other authorized City representative, requests a towing service, the towing service called shall be the OPTS for the City of Arcadia. When more than one vehicle is to be towed from the scene of a traffic collision, and the drivers do not specify a preference, the OPTS shall be called for each vehicle being towed. If it is determined that the towing service is not needed and is canceled by the Arcadia Police Department, up to and including arrival at the scene, there shall be no charges assessed by the OPTS for the request. If the OPTS is unable to handle the call due to size, location, etc., the OPTS will be responsible for requesting another tow service to respond that is capable of handling the situation. 6. REPUTATION AND FINANCIAL STATE The authorized towing and storage facility must furnish proof of possession of the towing equipment and storage yard facilities necessary to perform the obligation set forth in this Agreement, including title to or a lease on the land necessary to perform the obligation set forth in this Agreement, and meet the zoning and building requirements of the City. The OPTS shall also possess a valid City of Arcadia Business License. 7. RESPONSE TIME The OPTS must arrive on scene within twenty (20) minutes of a verbal request for service by a member of the Arcadia Police Department or other authorized City personnel, 24 hours/day, 7 days/week, 365 days/year, including holidays and weekends. The OPTS dispatcher shall notify the Arcadia Police Dispatcher when it cannot immediately respond with a tow vehicle, shall give the reason for the delay in response and an estimated time of arrival. The OPTS may park up to two tow trucks on City streets overnight in order to facilitate a timely response to Arcadia Police Department calls for tow services. 8. PERSONNEL The OPTS shall maintain at least two (2) qualified drivers to respond to requests for service by the Arcadia Police Department at all times. 9. TRAINING / ABILITY— QUALIFICATIONS The OPTS operators and tow truck drivers must be sufficiently trained and capable to ensure safe and proper discharge of their service responsibilities. In addition, the OPTS agrees to the following terms: A. The OPTS shall provide the name, date of birth, and valid California driver's license number of all drivers employed by the OPTS in writing to the Arcadia Police Department Administrative Division Captain. The OPTS shall notify the Arcadia Police Department Administrative Division Captain, or his designated representative, shall also be notified in writing of any new drivers or any change in employment status of a driver within five (5) days of their date of hire or any change in employment status. B. The OPTS operators shall participate in the Employer Pull Notice Program through the Department of Motor Vehicles. The OPTS shall notify the Arcadia Police Department Administrative Division Captain of any Pull Notices received on their drivers. 2 C. Tow Driver Qualifications/Requirements: (1) Drivers employed by the OPTS shall be at least 18 years old, possess the required class driver license to operate any or all Tow Vehicles specified herein, and sufficiently capable and trained to ensure safe and proper discharge of their towing service duties and responsibilities in a safe and courteous manner. All drivers shall comply with the requirements set forth in California Vehicle Code Sections 27700 and 24605. All drivers shall meet all requirements specified in Sections 2430.5 and 12520 of the California Vehicle Code. (2) Drivers and/or the OPTS shall provide the Arcadia Police Department Administrative Division Captain with information in writing concerning any driving citations received by the tow driver(s) in the immediate prior three (3) years and all information regarding any criminal convictions. (3) The OPTS drivers shall present a neat, clean and professional appearance. Drivers shall wear uniform type pants and shirt that identify the tow service company and their name (first or last). (4) The Chief of Police, in his sole discretion, is also hereby empowered to require that the OPTS's drivers: (a) Be fingerprinted; (b) Undergo background checks by the California Department of Motor Vehicles and any other agency deemed appropriate to determine the safety practices of the drivers; (5) The OPTS shall not utilize any driver to render services pursuant to this Agreement: (a) Who is subject to epilepsy, fainting or loss of consciousness by reason of chronic medical condition; (b) Whose driving record indicates five (5) violations of traffic laws involving moving vehicles within two (2) years preceding the date of application; (c) Who has furnished false information on this application or omitted to furnish all information requested on said application forms; (d) Who has been convicted of driving while under the influence of intoxicating liquor or narcotic drugs, or both, within three (3) years of the date of application; or 3 (e) Who has been convicted of a felony, any crime involving moral turpitude, or any crime(s) specified in this Agreement within two (2) years preceding the date of application. (6) Notwithstanding compliance with the foregoing provisions, the City may prohibit certain drivers from providing towing services to the City or the Arcadia Police Department in its sole discretion. Such directives shall be made by the Chief of Police, or his/her designee, in writing to the OPTS. All OPTS operators or their agents shall give to the driver or owner of a vehicle to be stored, impounded or towed away, a business card, and/or a receipt with the service name, address and phone number, and must ensure that the information is provided to the Arcadia Police Department in the event that the driver is unavailable or incapacitated. 10. COMMUNICATIONS The OPTS shall install and maintain radio transmission and reception equipment allowing for contact with each authorized tow vehicle. 11. BUSINESS HOURS —AVAILABILITY BY TELEPHONE Police Availability: The OPTS shall make their services available 24 hours/day, 7 days/week, including holidays. No exceptions. Public Availability: There shall be an OPTS employee or agent available in person during normal business hours at the OPTS office to handle requests for service and release of impounded/stored vehicles. Normal business hours will be from 8:00 a.m. to 5:00 p.m. daily, seven (7) days a week, except that on days that the Santa Anita Race Track conducts horse race meets, the OPTS shall remain open until 7:00 p.m. The OPTS shall have an attendant on duty during all of the above business hours. 12. IMPOUNDED VEHICLES A vehicle impounded as per authority of the California Vehicle Code or the California Constitution will be documented by the Arcadia Police Department personnel. Authorization from the Arcadia Police Department is required before the impounded vehicles can be released. 13. RELEASE OF VEHICLE AFTER STORAGE / IMPOUND Any vehicle stored or impounded by the Arcadia Police Department, CANNOT be released without authorization from the Arcadia Police Department. When the OPTS releases a stored vehicle, the OPTS shall require proper identification and an Arcadia Police Department authorized release form (CHP 180). If the person requesting the release of a vehicle does not have all the above, refer the person to the Arcadia Police Department for further processing. The final decision for release of a vehicle shall come 4 from the on-duty Watch Commander or his/her designee. The OPTS shall adhere to this decision at all times. 14. RELEASE OF PERSONAL PROPERTY The OPTS shall notify the Arcadia Police Department prior to the removal of property from a stored vehicle and will provide a receipt listing the removed property and the identification of the person(s) who removed items, with a copy placed in the stored vehicle. No property shall be removed from the stored vehicle without prior authorization from the Arcadia Police Department. Personal property is considered to be items that are not affixed to the vehicle and must not be removed without prior authorization of the Arcadia Police Department. 15. OPTS STORAGE FACILITY STANDARDS The OPTS must at all times throughout the term of this Agreement, comply with the terms of this Agreement, all state and federal laws, and any subsequently enacted towing ordinance, rules or regulations enacted by the City of Arcadia that are applicable to OPTS. The OPTS shall, at a minimum, comply with the following requirements with respect to its facilities: A. Location of Storage Facility. The OPTS office and storage facility must be within a five (5) mile radius of the City of Arcadia limits in order to ensure adequate response times and limit the City's costs and administrative burdens of having Arcadia Police Department personnel conduct investigations at distant storage lots. Stored vehicles should be at a single location. If a secondary storage location is required, it must be within a one (1) mile radius of the primary location. B. Storage Facility Requirements. Adequate security measures for the protection of vehicles and property shall be provided for at all storage facilities. The Arcadia Police Department Administrative Division Captain, or his/her designee, shall be the sole judge of what constitutes "adequate" security measures and may grant additional consideration for state of the art security measures, including, but not limited to, security cameras and motion sensors. At a minimum, all storage facilities shall comply with the following requirements: (1) All storage facilities shall be enclosed by a wall or fence at least 6 feet in height. Alternatively, storage facilities may consist of enclosed buildings. All storage facility structures, including walls or fences, shall meet the requirements of the jurisdiction in which the facility is located, and shall be approved by the Arcadia Police Department Administrative Division Captain, or his/her designee. 5 (2) Storage lot that can hold a minimum of 100 vehicles. (3) The security for the storage facility shall be adequate to preclude theft, vandalism or damage by activity while in the OPTS's lot. The storage facility and lot shall be configured in such a way that no vehicles shall be left parked or stored on the public streets at any time. The OPTS must provide off-street parking for its equipment and be able to accommodate at least four additional vehicles for customer parking. In addition to the four customer parking spaces, at least one additional customer parking space shall be provided for handicapped parking purposes. Said handicapped parking space shall be van accessible. Storage vehicles should be secured away from customer parking and the office area. The OPTS's office must have a sign posted including the company name, address, phone number and hours of operation, to be clearly visible from the roadway. C. All storage facilities must be approved for security by the Arcadia Police Department Administrative Division Captain, or his/her designee, and available for inspection upon request. Any breach of security in a building or fence must be repaired within 24 hours. D. All necessary vehicle storage facilities needed to meet the minimum requirements of this section shall be constructed prior to the OPTS's submittal of a response to the Request for Qualifications issued by the City's General Services Department. All necessary approvals for such storage facilities shall comply with the applicable provisions of the Arcadia Municipal Code, or appropriate county and/or city codes. Compliance with this subsection shall not be deemed to create any duty for the City to award a permit to the OPTS. 16. INSIDE STORAGE The OPTS shall maintain an enclosed locked storage facility for a minimum of five (5) vehicles. The OPTS shall maintain an additional two (2) spaces that can be secured by the Arcadia Police Department for vehicles ordered impounded because of their involvement in the commission of crimes or for other reasons (the "Designated Impound Space"). The Designated Impound Space shall also meet the following criteria: A. The Designated Impound Space shall be completely protected from the elements, including wind, heat, adverse weather and other forms of contamination (i.e. dust). B. The Designated Impound Space must be able to be secured and unauthorized entry must be prevented. Protection shall also be provided to preclude evidence contamination by employees and other individuals. Evidence contamination is defined as removal or touching of any items, 6 papers, vehicle parts, etc., of an impounded vehicle that is impounded by the Arcadia Police Department for investigation purposes. At a minimum, there should be a door or gate that can be locked and secured from employees and visitors. C. The Arcadia Police Department will designate when a vehicle is to be placed into the Designated Impound Space for evidence purposes and may place a seal on each door of the vehicle or door(s) of the impound facility to maintain the chain of evidence. Vehicles placed into inside storage for evidence purposes shall not be removed from such protection until approved by the Arcadia Police Department. D. The Designated Impound Space must be of sufficient size to satisfy the impound storage requirements of the Arcadia Police Department. E. The Designated Impound Space must be lit with a minimum of two (2) 50 watt, overhead, quartz halogen lamps, or similar lamps that provide equal or greater light. F. The Designated Impound Space area must be accessible to Arcadia Police Department personnel 24 hours a day, seven (7) days a week. G. The Designated Impound Space must be reasonably clean and clear of dirt, animal waste, oil, etc. H. The Designated Impound Space must be protected by an alarm system to prevent unauthorized entry. The alarm system shall be monitored by an off-site monitoring company. The alarm code for the alarm system shall be provided to the Arcadia Police Department personnel at all times and shall be changed by the OPTS only upon receiving authorization from the Chief of Police or at his/her direction. The OPTS shall not provide the alarm code to any person unless authorized to do so by the Chief of Police. 17. EQUIPMENT STANDARDS At its expense, the OPTS must have the following equipment that conforms to the California Highway Patrol's Classification (CHP Class) for the gross vehicle weight ratings (GVWR) of a truck chassis'. The OPTS vehicles must also be in compliance with the applicable provisions of the California Vehicle Code applying to tow trucks (615 GVWR Range(lbs.) CHP Class 10,000- 19,500 A 19,501-33,000 B 33,001 —49,999 C 50,000 or more D 7 CVC), including but not limited to Sections 615, 21711, 24606, 25100, 27700, 27907, and all other regulations pertaining to lighting and safety equipment. A. A minimum of two (2) flatbed car carriers (Class A or Class B); plus B. A minimum of three (3) light-medium duty tow trucks, consisting of: (1) At least two (2) light duty (Class A); plus (2) At least one (1) medium duty (Class B); plus C. Preferably, at least one (1): (1) Heavy duty (Class C); or (2) Super heavy duty (Class D); plus If the OPTS is unable to handle the call due to size, location, etc., the OPTS will be responsible for requesting another tow service to respond that can handle the situation. D. Preferably, at least one (1) tow truck that is equipped to lift and carry a disabled person in a wheel chair; plus E. All trucks must have two-way radio communication equipment. All OPTS tow vehicles must have adequate equipment for the towing of vehicles. Basic equipment shall include: Fire Extinguisher(s) Broom Shovel Reflective Triangles Flares Trash Can(s) with Absorbent Material Office to Truck Radio System Winch Motorcycles that are stored, impounded, or towed from a collision scene at the request of the Arcadia Police Department shall be hauled by a trailer that is designed to carry motorcycles or by a flatbed truck in an upright position. Any and all equipment used and maintained by the OPTS must be available for inspection by the Arcadia Police Department upon request. All equipment and vehicles to be used under this Agreement shall be inspected by the California Highway Patrol at least one time per year. All vehicles and equipment shall display a current inspection sticker issued by the California Highway Patrol prior to its 8 use under this Agreement. The Arcadia Police Department may conduct random vehicle and equipment inspections to ensure compliance with this Agreement. The Arcadia Police Department may inspect the OPTS facilities used under this Agreement at any time during normal business hours. The OPTS must have equipment for and have personnel proficient in unlocking locked vehicles when requested by the Arcadia Police Department. Throughout the term of this Agreement the OPTS shall maintain in good condition the real property and improvements thereon, and all vehicles, facilities, equipment and material used in the performance of the service required by this Agreement. 18. TOW SERVICE RESPONSIBILITIES AND DUTIES The OPTS provider's primary duty will be; responding, on a first priority basis, to requests for towing services initiated by the Arcadia Police Department. The OPTS provider must have two (2) tow trucks available at all times (24 hours/day, 7 days/week, 365 days/year, including holidays and weekends) to respond to requests for service from the Arcadia Police Department. The OPTS provider must also respond to towing requests from other City employees who are duly authorized by law to remove vehicles for storage, investigations, or both. Typical towing situations will include, but will not be limited to: removing illegally parked vehicles, towing inoperative vehicles as a result of traffic accidents, mechanical breakdowns, storing, or impounding vehicles for investigations, evidence or a violation of law. The OPTS provider must provide towing and storage services 24 hours/day, 7 days/week, 365 days/year, including holidays and weekends. 19. DUTIES AT THE SCENE After being requested to the scene by the Arcadia Police Department the OPTS operator shall: A. Neither move the vehicle nor attach to any vehicle until so instructed to do so by a member of the Arcadia Police Department. B. Shall clean up and remove any and all debris from the accident scene as required by the Arcadia Police Department and the California Vehicle Code. C. Provide towed vehicle owners, when present at the scene, with a business card or other information, indicating where the vehicle will be stored, including hours of operation. 9 20. RECORDS Records shall be maintained by the OPTS relating to vehicles impounded or stored at the City's request: The OPTS shall keep complete and accurate records of all vehicles impounded or stored at the request of the City and shall include the amount of charge on each vehicle. The report shall list the number of vehicles stored or impounded at the request of the City that are sold through lien sale. The OPTS shall provide a written monthly report to the Chief of Police, or his/her designee, within thirty (30) calendar days after the end of each month containing the above information. The report shall be limited to vehicles impounded or stored by the City. The OPTS and the City shall maintain records of the times that calls for service are received, dispatched, and the times the tow vehicles arrive on scene. The record system should be adequate to provide an inquiring party with the ability to locate a vehicle by searching the following information: license plate number, the make, model, color, date or location of impound. The OPTS owner must also notify the California Highway Patrol (CHP) as required by Section 10652 of the California Vehicle Code. 21. INSPECTION OF RECORDS, FACILITIES, EQUIPMENT AND DRIVERS All records required to be kept by the OPTS owner shall be available for inspection by representatives of the Arcadia Police Department and the California Highway Patrol. In addition, the OPTS shall submit at any reasonable time to an Arcadia Police Department inspection of all drivers, vehicles, equipment and yards. The OPTS shall provide California Highway Patrol inspection certification for each of its towing vehicles to the Arcadia Police Department. If the OPTS cannot produce an annual California Highway Patrol certification, the Arcadia Police Department reserves the right to require that all towing vehicles be inspected by an automotive professional certified by the State of California Bureau of Automotive Repair, and selected by the Arcadia Police Department. All vehicle inspection fees shall be borne solely by the OPTS and shall be due and payable upon presentation of the vehicle for inspection. Any tow vehicle that fails an inspection shall not be used to provide towing service in the City until it is repaired and passes re-inspection. All tow vehicles shall be operated and maintained in compliance with all applicable state and federal laws and regulations. 22. TOWING RATES & STORAGE FEES The rate for towing shall be from the primary towing facility and return to the same. A one-hour minimum may be charged. Charges in excess of one hour may be charged in fifteen-minute increments. There shall be no additional charge for labor, mileage, etc. The tow rates and storage fees for the City of Arcadia Official Police Tow Services are based on towing and storage rates established each year by the California Highway Patrol ("CHP") for the sector applicable to Arcadia. These rates may be reviewed annually on June 1st to match any local CHP rate and fee changes. The OPTS must 10 notify the Chief of Police or his/her designee in writing of any tow rate and storage fee increase to match the CHP rates and fees. The Arcadia Police Department will verify any increases. Any disputes will be reconciled through a meeting between the Chief of Police or his/her designee and the OPTS owner. If the rate and fee increases are verified, the new rates will take effect on July 1st. The OPTS agrees that Chief of Police's, or his/her designee's, determination concerning tow rates and storage fees shall be final. Vehicle Type Towing Rates Daily Storage Fee Daily Storage Fee (Inside) (Outside) Class A $216.00 $58.30 $64.13 Class B $259.00 $62.70 $62.70 Class C $374.00 $73.81 $67.10 Class D $434.50 $63.00 $63.00 Handicap $216.00 $58.30 $64.13 Motorcycle $216.00 $58.30 $64.13 Vehicles stored eight hours or less shall be charged no more than one-day storage. Each day thereafter shall be calculated by the calendar day. A copy of the rate schedule shall be maintained inside each tow vehicle and presented upon request by a vehicle owner or driver for any vehicle towed or stored by the OPTS. In the event that a vehicle is stored or impounded at the direction of the Arcadia Police Department and it is subsequently determined that the City is responsible for the cost of such storage and/or towing, the OPTS agrees not to assess the City for costs of tow and/or storage of the vehicle. After Hour Vehicle Releases: The OPTS normal business hours are from 8:00 a.m. to 5:00 p.m., seven (7) days a week, including holidays, except that on days that the Santa Anita Race Track conducts horse race meets, the OPTS shall remain open until 7:00 p.m. The OPTS may charge a flat fee for after hour releases of an amount not to exceed $60.00 in addition to any previously incurred tow and storage fees for vehicles released outside the OPTS normal business hours. Towing of City Vehicles: The OPTS agrees that all City vehicles requiring towing will be towed by the OPTS free of charge. Moreover, the OPTS agrees not to charge for the changing of flat tires on City vehicles. 11 23. SERVICE CALLS & LABOR Rates for service calls (out of gas, lock outs, etc.) shall be from the time dispatched to the end of the service, and may be charged in accordance with this Agreement at the hourly rate of no more than $60.00, with a thirty (30) minute minimum. Charges for service periods in excess of thirty (30) minutes may be charged in fifteen-minute (15) increments. 24. FRANCHISE FEE Franchise fees, for the privilege of being the exclusive OPTS provider for City requested towing and storage services, shall be due and payable as follows: A. For each vehicle stored or impounded by order of the City, the OPTS shall pay the City a Franchise Fee of twenty-five percent (25%) of the total amount collected by the OPTS. The OPTS shall not be responsible for payment of the Franchise Fees for private person tow requests, such as AAA, or on junked vehicles, with a junk certificate, with a value of $300 or less. The OPTS shall not be responsible for payment of the Franchise Fees for vehicles that have been sold via lien sale in an amount over $500. The OPTS shall pay the City a Franchise Fee of 10% of the sale price for vehicles sold via lien sale in the amount over $500, with no other fees due to the City. B. The report mentioned in Section 19 shall accompany the monthly Franchise Fee payments from the OPTS. C. The Franchise Fees shall be paid on a monthly basis to the Arcadia Police Department by the 15th of each month. The OPTS shall not be responsible for payment of an administrative fee to the City for the towing of vehicles in the specified circumstances set forth hereinabove. Any fees which remain unpaid after the monthly installment due date shall be delinquent, and shall be subject to the procedures and penalties outlined in Arcadia Municipal Code sections 1800 and 1801, or as they may hereafter be amended. Non-payment of the administrative fees and charges by the OPTS shall be grounds for termination of this Agreement and the OPTS's participation in the City's towing program. D. The Franchise Fee may be adjusted annually by resolution of the City Council to reflect the City and the Arcadia Police Department's current costs for operating the towing program. Any such adjustment shall be applicable to the OPTS upon ten (10) days written notice of the adoption of such resolution. E. The City retains the right to impose alternative forms of taxes and/or fees, to the extent permitted by law, in the event that the fees provided for in the towing services agreements are no longer assessable due to a subsequent change in federal, state or local law. 12 F. The OPTS must make available to the Arcadia Police Department, the City or their designated representative(s), upon three (3) day's written notice, its accounting records and books for inspection and audit. The Arcadia Police Department, the City or their designated representative(s) agree to maintain the confidentiality of such accounting records and books. The OPTS shall submit monthly documentation detailing its operations on behalf of the City in a format that is acceptable to the Arcadia Police Department. Such documentation shall include the following information: the date, time, location, case number (if any), vehicle description (including make, model and vehicle license number) and a brief description of the circumstances surrounding the tow (traffic collision, Department impound etc.). The OPTS shall maintain these records for a period of three (3) years. If the results of the audit show a Franchise Fee underpayment of greater than five (5) percent, the OPTS will pay the cost of the audit plus 50 percent of the total error as a penalty in addition to any amount owed as shown by the audit. If the results of the audit show an underpayment of less than five (5) percent or an overpayment, the City shall pay its own costs associated with the audit. Any underpayment and resulting penalty shall accrue interest at the rate of ten percent per annum, compounded daily from the date the underpayment should have been paid pursuant to subsection C above. G. In the event the results of the audit are disputed, the City may, at its sole discretion, elect to arbitrate the dispute. In the event the City elects to arbitrate, the City and the OPTS shall each select an independent auditor at their own cost. The two auditors shall agree upon the results of the audit. If the two independent auditors cannot agree upon the results of the audit, a third auditor will be selected by the two independent auditors to make a final determination. The determination of the third independent auditor shall be final. H. By accepting and signing this Agreement, the OPTS irrevocably waives the defenses of any statute of limitation, laches, waiver or other equitable doctrine of similar import or effect in any action brought by the City to recover any fees, interest or penalties due under this Agreement. By accepting and signing this Agreement, the OPTS agrees that if it challenges the right of the City to collect the Franchise Fees provided by this Agreement, any relief requested by the OPTS and awarded to it by virtue of such challenge shall be prospective only from and after the date of the filing of the initial pleading seeking such relief in a court of competent jurisdiction. The OPTS hereby waives any and all claims or rights to collect back from the City, or obtain credit against future payment obligations, any amounts collected by the City prior to the filing of the initial pleading seeking such relief. In the event the OPTS's challenge to any Franchise Fee payments should result in an initial judgment in its favor, the OPTS shall continue to make all Franchise Fee payments in 13 accordance with this Agreement pending an appeal by the City. In the event the court of appeal, or trial court if the City elects not to appeal, determines that the City is not entitled to collect any or all of the Franchise Fees, the City shall refund to the OPTS those portions of the Franchise Fee which the court deems the City was not entitled to collect which were made subsequent to the filing of the initial action by the OPTS, exclusive of interest on such amount. 25. ACCEPTANCE OF PAYMENT The operator shall accept payment by a valid bank credit card or cash for towing and storage charges. The operator shall have sufficient funds on the premises to accommodate and make change in a reasonable monetary transaction. This payment can be accepted from the registered owner, legal owner or the agent claiming the vehicle in accordance with California Vehicle Code section 22651.1. 26. SIGNS AND ADVERTISING The OPTS shall not display any signs or advertising material which indicates that his/her business is an official towing service or police storage facility of the City of Arcadia. 27. INDEMNITY, DUTY TO HOLD HARMLESS AND DUTY TO DEFEND A. Duty to Indemnify/Hold Harmless To the fullest extent permitted by law, the OPTS agrees to indemnify, defend, protect, hold harmless, and assume all liability of the City of Arcadia, its elected officials, officers, employees, agents and volunteers (collectively "Indemnified Parties") from and against all claims (including, without limitation, claims for bodily injury, death, damage to property or workers' compensation benefits), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and costs, and all other professional, expert or consultant's fees) of every kind and nature whatsoever (individually, a "claim"; collectively, "claims"), whether under state or federal law, which may arise from or are in any manner related to the provision of towing services by the OPTS pursuant to this Agreement, regardless of any active or passive negligence or strict liability of the Indemnified Parties, and further agrees to indemnify the Indemnified Parties, regardless of whether the Claim or Claims is/are asserted by an elected official, officer, employee, agent or volunteer of the City of Arcadia. The OPTS understands and acknowledges that the indemnification obligation hereunder, includes, but is not limited to, a "Type I" indemnity under California law and extends to and includes all claims arising from the active or passive negligence of the Indemnified Parties. The OPTS further understands and acknowledges that the indemnification obligation hereunder extends to workers' compensation claims made by any elected officials, 14 officers, employees, agents or volunteers of the City of Arcadia which may arise from or are in any manner related to the provision of towing services by the OPTS pursuant to this Agreement. B. Duty to Defend The duty to defend hereunder is wholly independent of and separate from the duty to indemnify and such duty to defend exists regardless of any ultimate liability of the Indemnified Parties. Such defense obligation, which shall be managed by the OPTS, shall arise immediately upon presentation of a claim by any party and written notice of such Claim being provided to the OPTS. Payment to the OPTS by any Indemnified Party or the payment or advance of defense costs by any Indemnified Party shall not be a condition precedent to enforcing such Indemnified Party's rights to indemnification hereunder. The OPTS's duties to indemnify, defend and hold harmless pursuant to this Agreement shall survive the either the expiration or earlier termination of this Agreement until such time as any legal action against the Indemnified Parties for any such matters indemnified hereunder are fully and finally barred by all applicable statutes of limitation or statutes of repose. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit the OPTS's duties to indemnify, defend or hold harmless pursuant to this Agreement. C. Disputes between the City and the OPTS Concerning this Agreement Disputes between the OPTS and the City concerning the provision of towing services to the City of Arcadia pursuant to the towing services Agreement are excluded from the duty to indemnify, defend and hold harmless. 28. LIABILITY INSURANCE The OPTS shall, at its own cost and expense, maintain policies of insurance affording protection against third party bodily injury liability and property damage liability occasioned by reason of the provision towing services, impoundment and storage of vehicles. The minimum insurance established for the following categories are: General Liability Insurance — The OPTS agrees to maintain a comprehensive general liability insurance policy with a combined single limit for bodily injury and property damage of not less than Three Million Dollars ($3,000,000.00). Commercial Business Automobile Liability (as required by Section 16500.5 California Vehicle Code) - Bodily injury and property damage with a combined single limit of not less than Three Million Dollars ($3,000,000.00). The policy shall also include owner, non-owner, and hired auto coverage. Uninsured Motorist — Legal minimum, combined single limits. 15 On-Hook Coverage — Insuring the vehicle in tow with limits based on the size of the tow truck. a. Class A Tow Truck $25,000 b. Class B Tow Truck $50,000 c. Class C Tow Truck $100,000 d. Class D Tow Truck $100,000 Garage Liability — Includes premises and operations. Coverage for bodily injury and property damage with a combined single limit of not less than Three Million Dollars ($3,000,000.00). Garage Keepers Liability — Shall be the same minimum as On-Hook Coverage for vehicles in the care, custody and control of the operator in the storage yard. The OPTS shall obtain and maintain at all times in full force and effect during the term of this Agreement all insurance policies and coverage listed above. The OPTS further agrees to submit to the Arcadia Police Department certificates of insurance and endorsement pages naming "the City of Arcadia, its elected and appointed officials, officers, employees, agents, and volunteers as additional insureds." Any and all insurance obtained and provided pursuant to this Agreement shall not be canceled prior to the termination of this Agreement. The OPTS agrees to deliver a copy of all insurance policies, endorsements, and certificates to the Arcadia Police Department, which are subject to the approval of the City Attorney as to form, thirty (30) days in advance of the effective date of this Agreement. The OPTS further agrees that its insurance shall be primary insurance with respect to any claims, losses, or liability arising from the provision of towing services by the OPTS pursuant to this Agreement, and that the insurance carried by the City of Arcadia shall be excess and not contributory with the insurance provided by the OPTS. The OPTS further agrees to provide an endorsement to its insurance policies with such language. The OPTS further agrees to notify City in writing at least thirty (30) days prior to any cancellation or reduction in coverage in OPTS's insurance coverage for any insurance providing coverage for the services relating to this Agreement. OPTS further agrees that it will provide the City with prompt and timely notice of any Claim made or suit instituted arising from or any way related to Coverage is to be provided by insurers admitted/authorized to do business in the State of California and approved by the City. Defense coverage must be in addition to policy limits. If umbrella coverage is used, it must include drop down coverage if underlying coverage does not apply, and the umbrella policy must have the same starting and ending date as the primary policy. The OPTS shall have the sole right to select its insurance carrier(s), provided such carrier lawfully transacts business in the State of California. However, all insurance required by this Agreement must be issued by companies admitted to do business in California, rated "A" or better in the most recent edition of Best's Key Rating Guide, 16 unless these requirements are waived by the City Attorney of the City due to unique circumstances. In the event the City Attorney determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the OPTS agrees that the minimum limits of any insurance policies and/or performance bond required by this Agreement may be changed accordingly upon receipt of written notice from the City Attorney; provided that the OPTS will have the right to appeal a determination of increased coverage by the City Attorney to the City Council of the City within ten (10) days of receipt of notice from the City Attorney. The OPTS shall not perform any services pursuant to this Agreement unless and until all insurance policies and coverage set forth herein are obtained and copies of said policies, endorsements and certificates are provided to the City of Arcadia in accordance with the provisions specified above. 29. WORKERS COMPENSATION INSURANCE The OPTS further agrees to, at its own cost expense, maintain a policy of Worker's Compensation insurance providing coverage of persons employed by the OPTS in connection with work performed in, upon, or around the vehicle to be towed, stored or impounded during the period covered by this towing service Agreement. 30. ASSIGNMENT ON TRANSFER OF SERVICE AGREEMENT The OPTS shall not sell, transfer, lease, assign, sublet, mortgage or dispose of in whole or in part, either by forced or involuntary sale, or by ordinary sale, agreement, consolidation or otherwise, or any rights or privileges herein granted, without the prior written consent of the Chief of Police, or his/her designee. The Chief of Police, or his/her designee's approval of a transfer or assignment of this Agreement shall be conditioned upon the OPTS's sale or disposal of all ownership rights in the OPTS's tow truck business. If the OPTS desires to transfer or assign its rights in the tow truck business, because he or she intends to sell or dispose of all interests in the tow truck business that is authorized to perform towing services with the City, the OPTS shall make a written request to the City of Arcadia for a transfer or assignment of the Agreement. The written request, along with a deposit fee of one thousand dollars ($1,000.00) to cover the City's reasonable investigation costs, and the proposed sale agreement or other document evidencing disposal of the tow truck business shall be submitted to the Arcadia Police Department at least one hundred twenty (120) calendar days before the requested effective transfer or assignment date. The City of Arcadia shall investigate the proposed transferee or assignee and determine whether the transferee or assignee is qualified to serve as a tow truck operator pursuant to the criteria and requirements set forth herein. Such decision shall be in the sole and absolute discretion of the City of Arcadia. If the Arcadia Police Department determines that the proposed transferee or assignee is qualified to be a tow truck operator, it will recommend that the City Council approve the transfer or assignment. Upon completion of the investigation process, the City of Arcadia shall provide the OPTS with an accounting of the administrative and legal costs associated with the City's review of the OPTS's request for a transfer or assignment of the Agreement, and refund or request 17 additional funds as appropriate. Any attempt to sell, transfer, lease, assign or otherwise dispose of the Agreement without the prior written consent of the City of Arcadia shall be null and void. 31. RISK The OPTS assumes all risk in the event of damage, theft, fire of the vehicles or any property towed and stored by the OPTS, its employees or agents. Any and all claims, demands or liability arising out of or encountered in connection with this Agreement shall be borne by the OPTS. 32. TERM OF TOW AGREEMENT The initial term of this Agreement will be for three years from the effective date. The Agreement shall automatically renew for three (3) additional one-year periods, unless previously terminated by either of the parties hereto. 33. OFFICIAL POLICE TOW SERVICE/ ARCADIA POLICE DEPARTMENT COMMUNICATIONS The Administrative Division Captain, or his/her designee, shall conduct meetings to discuss issues of concern with respect to performance by the OPTS under the Agreement. These meetings shall be mandatory for the operator, or his/her designee. The Arcadia Police Department shall give the operator five (5) days advance written notice of these meetings. 34. SUSPENSION OF AGREEMENT Compliance with Agreement The OPTS agrees that failure to comply with the terms and conditions of this Agreement shall be cause for WRITTEN WARNING, SUSPENSION OR TERMINATION OF THE AGREEMENT. The Arcadia Police Department will investigate alleged violations of the OPTS Agreement. The OPTS will be notified of the findings in writing within thirty (30) days of the initiation of the investigation. Disciplinary Action The Administrative Division Captain shall use the following guidelines for action against operators found in violation of this Agreement. This is only a guide, with the Administrative Division Captain having discretion for serious violations, such as criminal offenses. 1St Violation within 12 consecutive months WRITTEN WARNING 18 2nd Violation within 12 consecutive months WRITTEN WARNING 3rd Violation within 12 consecutive months 30 day SUSPENSION 4th Violation within 12 consecutive months 60 day SUSPENSION In the event the Arcadia Police Department serves the OPTS with a notice of suspension, the OPTS may request a hearing within seven (7) calendar days by submitting a request in writing to the Chief of Police. The hearing shall be held as soon as practicable. The hearing shall be conducted by the Chief of Police, or his/her designee. The OPTS shall be entitled to present all relevant information, evidence and circumstances in support of its position. The OPTS shall be notified in writing of the Chief of Police, or his/her designee's, final decision concerning the suspension within seven (7) calendar days of the date of the hearing. The OPTS may appeal the Chief of Police's decision concerning a suspension for a hearing de novo before the City Manager, or his/her designee. The OPTS must serve a written notice of appeal on the City pursuant to the notice provisions set forth herein within ten (10) calendar days of the date upon which the Chief of Police, or his/her designee's, decision becomes effective. The OPTS's notice of appeal must set forth the grounds for its appeal in clear and concise language, which shall include a summary of the claimed factual or decisional error. If the OPTS fails to request a hearing or appeal within the specified deadlines, or fails to appear at a scheduled hearing or appeal, the action taken by the Chief of Police, or his/her designee, shall be final and the suspension shall take effect upon written notification to the OPTS by the Chief of Police. The City Manager, or his/her designee, shall conduct the hearing on the administrative appeal. The hearing shall be held as soon as practicable, but in no event later than thirty (30) days from the notice of appeal therefore unless both parties agree in writing to an extension of time for the hearing. The City Manager, or his/her designee's, decision on an issue shall be deemed final. A suspension shall not take effect until the hearing and administrative appeal process have been exhausted. However, the Chief of Police, or his/her designee, shall have the authority to suspend the Agreement effective immediately if, in the sole and absolute discretion of the Chief of Police, or his/her designee, the conduct by the OPTS or its agents is deemed to constitute a danger to the public or constitutes a gross violation of the terms and conditions of this Agreement. 35. TERMINATION OF AGREEMENT A. Termination without Cause. Either party may terminate this Agreement at any time, without cause, upon providing 30 days' written notice to the other party. Upon receipt of 19 the notice of termination from the City, the OPTS must immediately cease all work or services except as may be specifically approved by the City. The OPTS will be entitled to compensation for all services rendered prior to the effectiveness of the notice of termination and for additional services specifically authorized by the City. The City will be entitled to reimbursement for any expenses that have been paid for but not rendered. B. Termination for Cause. In the event the OPTS, or any of its officers, directors, shareholders, employees, agents, subsidiaries, or affiliates is convicted; (i) of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of a contract or subcontract; (ii) under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects responsibility as a public consultant or contractor; (iii) under state or federal antitrust statutes arising out of the submission of bids or proposals; or (iv) of violation of section 36 of this Agreement, or for any other cause the City determines to be so serious and compelling as to affect provider's responsibility as a public consultant or contractor, including but not limited to, disbarment by another governmental agency, then the City reserves the unilateral right to terminate this Agreement upon providing the OPTS with ten (10) days' written notice of termination, or to impose such other sanctions (which may include financial sanctions, temporary suspensions, or any other condition deemed appropriate short of termination) as it deems proper. In the event that the City terminates the Agreement for cause, the OPTS shall be entitled to the hearing and appeal rights set forth in paragraph 33 above. However, termination for cause pursuant to this paragraph shall be effective upon expiration of the ten (10) days' notification period set forth above. 36. FORCE MAJEURE If any party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond the reasonable control of the party obligated to perform, then that party's performance will be excused for a period equal to the period of such cause for failure to perform. 37. CONFLICT OF INTEREST A. No officer or employee of the City may have any financial interest, direct or indirect, in this Agreement, nor may any officer or employee participate 20 in any decision relating to the Agreement that effects the officer or employee's financial interest or the financial interest of any corporation, partnership or association in which the officer or employee is, directly or indirectly interested, in violation of any law, rule or regulation. B. No person may offer, give, or agree to give any officer or employee or former officer or employee of the City, nor may any officer or employee of the City solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation or any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any way pertaining to any program requirement, contract or subcontract, or to any solicitation or proposal. 38. NOTICES Any notice required to be given under this Agreement shall be given by placing such notice in the United States mail, postage prepaid, addressed as follows: OPTS: City: Arcadia Police Department Attn: Chief of Police 250 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066-0021 City Attorney for the City: City Attorney for City of Arcadia c/o Best Best & Krieger LLP Attn: Stephen Deitsch 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066-0021 or to such other address as may be indicated by notice in writing. Such notice shall be deemed made when personally delivered or when mailed forty-eight (48) hours after deposit in the U.S. mail, first-class postage prepaid and addressed to the party at its applicable address. 39. AUTHORITY TO ENTER AGREEMENT The City and the OPTS warrant that the individuals who have signed this Agreement have the legal power, right and authority to enter into this Agreement so as to bind each respective party to perform the conditions contemplated herein. 21 40. SEVERABILITY If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. 41. ATTORNEYS' FEES AND COSTS If any legal action or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any provisions of this Agreement, the prevailing party, as determined by the court, shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. 42. GOVERNING LAW AND VENUE This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any lawsuit brought to enforce this Agreement shall be brought in the appropriate court in San Bernardino County, State of California. 43. WAIVER No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be deemed a waiver and no waiver shall be binding unless executed in writing by the party making the waiver. 44. DAYS Any term in this Agreement referencing time, days, or period for performance shall be deemed to be calendar days and not work days. 45. ENTIRE AGREEMENT This Agreement contains the entire agreement of the City and the OPTS and supersedes any prior oral or written statements or agreements between the City and the OPTS. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both the City and the OPTS. The OPTS represents that it has conducted all due diligence and investigation prior to entering into this Agreement, and has not relied upon any representations that are not set forth herein as an inducement to enter into this Agreement. 46. BINDING ON ASSIGNS Each and all of the terms, covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the City and the OPTS. 22 47. CAPTIONS The captions of the various sections, articles and/or paragraphs of this Agreement are for the convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement or of any part or parts of this Agreement. 48. CONSTRUCTION In all cases, the language in all parts of this Agreement shall be construed simply, according to its fair meaning and not strictly for or against any party, it being agreed that the City and the OPTS or their respective agents have all participated in the preparation of this Agreement. 49. COOPERATION / FURTHER ACTS The City and the OPTS shall fully cooperate with one another in attaining the purposes of this Agreement and, in connection therewith, shall take any such additional further acts and steps and sign any such additional documents as may be necessary, appropriate and convenient as related thereto. IN WITNESS WHEREOF, the City and the Official Police Tow Service have caused the within agreement to be executed by their respective officers hereunto duly authorized. [SIGNATURES ON THE NEXT PAGE] 23 CITY OF ARCADIA JAN'S TOWING, INC. By: Dominic Lazzare Jan Qualkenbush City Manager President/CEO Dated: iN.0%).A- `1 i t q Date: } ATTEST: • i elyeftki i ` ty G�rk APPROVED AS TO FORM: CONCUR: 4--btt4-A4 Stephen P. Deitsch 'obert Gut ie City Attorney hief of 'slice 24