Sample_Franchise_Agreement_(1).pdf

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NON-EXCLUSIVE POLICE TOWING

FRANCHISE AGREEMENT NO.

CITY OF PASADENA

THIS AGREEMENT is made and entered into by and between the CITY OF

PASADENA ("City"), a municipal corporation, and ______________________

(“Franchisee"), a Police Towing Company with its principal place of business at

WHEREAS, pursuant to Chapter 10.46 of the Pasadena Municipal Code, Franchisee has applied to City for a non-exclusive Police Towing Franchise

("Franchise"); and

WHEREAS, the City Council has held a public hearing for the purpose of hearing persons in favor of or in opposition to the granting of such Franchise; and

WHEREAS, the City Council has determined that Franchisee has demonstrated compliance with Chapter 10.46 of the Pasadena Municipal Code and has agreed to comply with all provisions of that Chapter; and

WHEREAS, it is required that City and Franchisee enter into a non-exclusive

Police Towing Franchise Agreement ("Agreement") in order that Franchisee may perform Police Towing services in the City of Pasadena;

WHEREAS, additional conditions have been imposed upon this grant of

Franchise;

NOW, THEREFORE, City and Franchisee do hereby agree as follows:

1.0. GRANT OF FRANCHISE. By Ordinance No. ________, City has granted to

Franchisee a non-exclusive Police Towing Franchise authorizing Franchisee to engage in the business of Police Towing as set forth in chapter 10.46 of the Pasadena

Municipal Code in the City of Pasadena and to use the public streets and rights of way

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for such purpose. This grant is pursuant to the City’s Request for Applications (Exhibit

A) and to Franchisee's application for the Franchise, attached hereto as Exhibit B and incorporated by this reference. Franchisee is subject to the terms and conditions specified in Article XI of the Charter of the City of Pasadena, the provisions of Chapter

5.44 and Chapter 10.46 of the Pasadena Municipal Code, the terms and conditions specified in all related resolutions, the terms and conditions of this Agreement, the representations and assurances in Franchisee's application for the Franchise.

2.0 TERM OF FRANCHISE. The term of the Franchise granted to Franchisee shall be for one (1) year, from __________ through ________, inclusive. There may be up to four (4) additional renewal terms in the sole discretion of the City Manager, exercised in accordance with this section, for a maximum potential franchise of five (5) years. The Franchisee has no vested or contract right in any such renewal term. As to any such renewal term, (a) the City manager shall grant the renewal on a finding that the Franchisee is in compliance with the ordinance, the nonexclusive franchise agreement, and all federal, state or local laws and regulations applicable to the operation of the nonexclusive franchise and that the public interest is served by a renewal or (b) may decline to grant any renewal term based on a finding that the

Franchisee is not in compliance with the ordinance, or with the nonexclusive franchise agreement, or with any federal, state or local law or regulation applicable to the operation of the nonexclusive franchise or that the public interest is not served by a renewal because of a change in circumstances or policy related to Police Towing or the nonexclusive franchise system. There shall be no other renewals of a nonexclusive franchise, but any person, including any person whose franchise is not renewed, may submit a new application for a new nonexclusive franchise in accordance with this chapter.

3.0 FRANCHISE FEES.

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3.1 During the term of the Franchise, Franchisee shall pay franchise fees to City, which fees shall be assessed from the date on which the ordinance granting this

Franchise became effective and in accordance with Section 10.46.160 of the Pasadena

Municipal Code and any Resolution adopted by the City Council and in such other amounts as are set forth in any subsequent resolutions that may be adopted by the City

Council at any time during the term of the Agreement.

3.2 Franchisee shall timely pay all required franchise fees to:

City of Pasadena

Pasadena, California 91101

Each payment shall be accompanied by a written statement, verified by the Franchisee or a duly authorized representative of the Franchisee, showing in such form and detail as the Director of the Department of Finance may prescribe, the calculation of the franchise fee payable by the Franchisee and such other information as the Director of the Department of Finance may require as material to a determination of the amount due.

3.3 The first payment of the franchise fees will be due on ___________, and payments shall be due quarterly thereafter, pursuant to Pasadena Municipal Code

Section 10.46.160.

3.4 When Franchisee remits franchise fees to City, such franchise fees shall be deemed timely paid only if delivered or postmarked on or before the due date.

If fees are not timely paid, Franchisee shall be subject to suspension or termination of

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the Franchise pursuant to Section 12 of this Agreement and/or to any other penalties which may be established and assessed by the City.

4.0 TOWING SERVICES.

4.1 Franchisee shall provide Police Towing services as set forth herein.

5.0 RATES, CHARGES AND PAYMENT.

5.1 The rates and charges for towing and storage in connection with this

Franchise shall be established by the City Council. A sign showing the approved rates and charges shall be conspicuously posted in the Franchisee’s tow office and available from tow driver on request. Franchisee shall provide vehicle owners the option of payment by major credit card. Franchisee must provide for after-hours releases of vehicles, and may collect an after-hour release fee.

6.0 REPORTS.

Franchisee shall file a quarterly towing report to the Chief of Police along with payment of its quarterly franchise fees. The report shall be submitted to:

P.O. Box 7115 Pasadena, California 91109

The report shall include the following information for Franchisee and its subcontractors, if any:

The report shall include the following information certified as true and correct under penalty or perjury by a responsible owner or official of the Franchisee:

6.1 Identification of each vehicle for which police towing services were provided during the period of the report. Identification means, license plate number or vehicle identification number, model, make and year of vehicle, and registered owner.

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6.2 For each vehicle identified, date of towing, time of call for service, pickup location, deposit location, pickup date by registered owner or other disposition of the vehicle.

6.3 All other information required by this Agreement or requested by the police chief pertaining to the operation of the franchise.

7.0 FRANCHISEE'S RECORDS.

7.1 The Franchisee shall maintain accurate and complete books and accounts of all revenues and income arising out of its operations under the Franchise and in a manner, which conforms with generally accepted accounting principles.

Franchisee's books, accounts and records, arising out of or related to its operations under the Franchise, shall at all times be open to inspection, examination and audit by authorized officers, employees and agents of the City. Such records shall be kept at

Franchisee's place of business shown in this Agreement for receipt of notices.

7.2 Franchisee shall require its subcontractors, if any, who perform

Police Towing services in connection with the Franchise to keep and maintain books of account and other records showing all business transactions conducted by such subcontractors in connection with the Franchise. Franchisee agrees to use its best effort to avoid duplication of reporting between Franchisee and its subcontractors.

8.0 TOW VEHICLE REPORTING, COMPLIANCE, AND IDENTIFICATION.

8.1 Franchisee shall maintain on file with the City, a complete and accurate listing of every vehicle operated by Franchisee for police towing services.

Franchisee shall certify, in a form acceptable to City, that every such vehicle conforms with regional and State vehicle emission standards (“emission standards”), and shall provide documentation of compliance on written request of the City. Franchisee understands and agrees that failure to conform with emission standards may result in suspension, termination or non-renewal of a Franchise.

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8.2 Every vehicle operated by Franchisee and for Police Towing services in the City shall bear the following identification: Franchisee's trade name, monogram or insignia, the Franchise vehicle number, together with Franchisee's telephone number painted upon both sides of the vehicle. All lettering mentioned in this paragraph shall be not less than 2-1/4" in height and not less than 5/6" stroke. The

Franchisee agrees to remove the Franchise vehicle number and all other information within 30 calendar days after the Franchise is terminated or the vehicle is sold, transferred or taken out of service.

9.0 INDEMNIFICATION OF CITY.

9.1 Franchisee agrees to indemnify, hold harmless and defend (even if the allegations are false, fraudulent or groundless), to the maximum extent permitted by law, the City, its City Council and each member thereof, and its officers, employees, commission members and representatives, from any and all liability, loss, suits, claims, damages, costs, judgments and expenses (including attorney’s fees and costs of litigation) which in whole or in part result from, or arise out of, or are claimed to result from or to arise out of:

A. Any activity on or use of City’s premises or facilities or any performance under this Franchise; or

B. Any acts, errors or omissions (including, without limitation, professional negligence) of Contractor, its employees, representatives, subcontractors, or agents in connection with the performance of this Contract.

9.2 This agreement to indemnify, hold harmless, and defend includes, but is not limited to, personal injury (including death at any time) and property or other damage (including, but without limitation, contract or tort or patent, copyright, trade secret or trademark infringement, or damage caused by hazardous substances) sustained by any person or persons (including, but not limited to, companies, or

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corporations, Contractor and its employees or agents, and members of the general public).

A. Franchisee’s duties under this paragraph relating to hazardous substances covers the duty to indemnify, hold harmless, and defend with counsel approved by the City relating to any repair, remediation, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, or closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous substance or hazardous waste at any place where the

Franchisee stores or disposes of solid or hazardous waste. The foregoing is intended to operate as an Agreement pursuant to the Section 107 of the Comprehensive

Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9607, and

California Health and Safety Code Section 25364, and any successor provisions, to insure, protect, hold harmless, and indemnify the City from liability.

10.0 INSURANCE REQUIREMENTS. Franchisee shall, at its own expense, procure and maintain policies of insurance of the types and in the amounts set forth by resolution of the City Council. The failure to maintain the minimum levels and standards of liability insurance for any period of time is a violation of this chapter and shall be sufficient grounds for temporary suspension or termination of a nonexclusive franchise.

11.0 TERMINATION AND SUSPENSION BY CITY COUNCIL. The City

Council shall have the right to terminate or to suspend the Franchise pursuant to

Pasadena Municipal Code Section 10.46.130.

12.0 TEMPORARY SUSPENSION. The City Manager shall have the right to suspend the Franchise pursuant to Pasadena Municipal Code Section 10.46.140.

13.0 ACCEPTANCE, WAIVER.

Franchisee agrees to be bound by and comply with all the requirements of

Chapter 10.46 and this Agreement. By entering into this Agreement, Franchisee

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waives, to the maximum extent permitted by law, Franchisee's right to challenge the terms of this Agreement and of Chapter 10.46 under federal, state or local law, or under administrative regulation, as such laws and regulations exist as of the date of signing of this Agreement.

14.0 GENERAL TERMS AND CONDITIONS.

14.1 INDEPENDENT STATUS.

14.1.1 It is understood that in the performance of the

services herein provided for, Franchisee shall be, and is, an independent contractor, and is not an agent or employee of City and shall furnish such services in its own manner and method except as required by this Franchise. Further, Franchisee has and shall retain the right to exercise full control over the employment, direction, compensation and discharge of all persons employed by Franchisee in the performance of the services hereunder. Franchisee shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.

14.1.2 Franchisee acknowledges that Franchisee and any

subcontractors, agents or employees employed by Franchisee shall not, under any circumstances, be considered employees of the City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers’ compensation insurance benefits.

14.2 FRANCHISEE NOT AGENT. Franchisee and its subcontractors

shall have no authority, express or implied, to act on behalf of or bind the City in any capacity whatsoever as agents or otherwise.

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14.3 WAIVER. The City's waiver of any term, condition, breach or default of this Agreement shall not be considered to be a waiver of any other term, condition, default or breach, nor of a subsequent breach of the one waived.

14.4 NO ASSIGNMENT. Any non-exclusive Franchise granted pursuant to Chapter 10.46 of the Municipal Code is a privilege to be held in trust by the original

Franchisee. No such non-exclusive Franchise shall be sold, leased, transferred, assigned, or otherwise disposed of, either in whole or in part, whether by forced sale, merger, consolidation, bankruptcy, reorganization under bankruptcy laws or otherwise, without the prior consent of the City Council expressed by ordinance. Any such consent of the City Council shall be subject to such terms and conditions as it may prescribe. A change of corporate name or a purchase of accounts by a Franchisee shall not require

City Council approval. Any unauthorized assignment or transfer shall be null and void and shall constitute a material breach by the Franchisee of its obligations under this

Agreement.

14.5 COMPLIANCE WITH LAWS. Franchisee shall comply with all

Federal, State, County and City laws, ordinances, resolutions, rules and regulations, which are, as amended from time to time, incorporated herein and applicable to the performance hereof.

14.6 ATTORNEY'S FEES. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, each party shall bear their own attorney's fees and costs.

14.7 INTERPRETATION.

14.7.1 Applicable Law. This Agreement, and the rights and duties of the parties hereunder (both procedural and substantive), shall be governed by and construed according to the laws of the State of California.

14.7.2 Entire Agreement. This Agreement, including any Exhibits attached hereto and any documents explicitly referenced herein, constitutes the entire agreement and understanding between the parties regarding its subject matter and supersedes all prior or contemporaneous negotiations, representations, understandings, correspondence, documentation and agreements (written or oral).

14.7.3 Written Amendment. This Agreement may only be changed

by written amendment signed by Franchisee and the City Manager or other authorized representative of the City, subject to any requisite authorization by the City Council.

Any oral representations or modifications concerning this Agreement shall be of no force or effect.

14.7.4 Severability. If any provision in this Agreement is held by any court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such portion shall be deemed severed from this Agreement, and the remaining provisions shall nevertheless continue in full force and effect as fully as though such invalid, illegal, or unenforceable portion had never been part of this Agreement.

14.7.5 Choice of Forum. The parties hereby agree that this

Agreement is to be enforced in accordance with the laws of the State of California, is entered into and is to be performed in the City of Pasadena and that all claims or controversies arising out of or related to performance under this Agreement shall be submitted to and resolved in a forum within the County of Los Angeles at a place to be determined by the rules of the forum.

14.7.6 Order of Precedence. In case of conflict between the terms of this Agreement and the terms contained in any document attached as an Exhibit or otherwise incorporated by reference, the order of precedence is as follows: Charter of the City of Pasadena, the Pasadena Municipal Code, the ordinance granting this

Franchise, resolutions of the City of Pasadena, this Agreement, the Request for

Applications, and Franchisee's application to the City for this Franchise.

14.7.7 Duplicate Originals. There shall be two (2) fully signed copies of this Agreement, each of which shall be deemed an original.

14.8 AUTHORITY OF FRANCHISEE. The Franchisee hereby

represents and warrants to the City that the Franchisee has the right, power, legal capacity and authority to enter into and perform its obligations under this Agreement, and its execution of this Agreement has been duly authorized.

15.0 ADDITIONAL ASSURANCES BY PASADENA FRANCHISEES.

15.1 EQUAL EMPLOYMENT OPPORTUNITY PRACTICES. Franchisee

agrees to comply with the City's Competitive Bidding and Purchasing Ordinance, Chapter 4.08 of the Pasadena Municipal Code, the rules and regulations promulgated thereunder, the California Fair Employment and Housing Act (Government Code

Section 12900 et seq.) and to this end:

15.1.1 Franchisee certifies and represents that, during the

performance of this Agreement, Franchisee and any other parties with whom it may subcontract shall adhere to equal opportunity employment practices to assure that applicants and employees are treated equally and are not discriminated against because of their race, religion, color, national origin, ancestry, disability, sex, age, medical condition, marital status. Franchisee further certifies that it will not maintain any segregated facilities.

15.1.2 Franchisee shall, in all solicitations or advertisements for applicants for employment placed by or on behalf of this Agreement, state that

Franchisee is an "Equal Opportunity Employer" or that all qualified applicants will receive consideration for employment without regard to their race, religious creed, color, national origin, ancestry, disability, sex, age, medical condition or marital status.

15.1.3 Franchisee shall, if requested to so do by the City, certify that it has not, in the performance of this Agreement, discriminated against applicants or employees because of their race, religious creed, color, national origin, ancestry, disability, sex, age, medical condition or marital status.

15.1.4 If requested to do so by the City, Franchisee shall provide the City with access to copies of all of its records pertaining or relating to its employment practices, except to the extent such records or portions of such records are confidential or privileged under state or federal law.

15.1.5 Franchisee agrees to recruit Pasadena residents initially and to give them preference, if all other factors are equal, for any new positions which result from the performance of this Agreement and which are performed within the City.

15.1.6 Nothing contained in this Agreement shall be construed in any manner so as to require or permit any act, which is prohibited by law.

15.1.7 Franchisee shall include the provisions set forth in

paragraphs numbered 15.1.1 through 15.1.6 of subsection 15.1 of this Agreement, inclusive, in each of its subcontracts under this Agreement.

15.2 BUSINESS LICENSES. Franchisee shall obtain, and pay any and all costs associated therewith, any Pasadena Business License, which may be required by the Pasadena Municipal Code and all permits, and licenses applicable to

Franchisee's operations under this Franchise, which are required of Franchisee by any governmental agency.

15.3 MAINTENANCE AND INSPECTION OF RECORDS.

The City, or its authorized auditors or representatives, shall have access to and the right to audit and reproduce any of the Franchisee's records to the extent the City deems necessary to insure it is receiving all money to which it is entitled under the

Agreement and/or is paying only the amounts to which Franchisee is properly entitled under the Agreement or for other purposes relating to the Agreement.

The Franchisee shall maintain and preserve all such records for a period of at least 3 years after termination of the Agreement.

The Franchisee shall maintain all such records in the City of Pasadena. If not, the Franchisee shall, upon request, promptly deliver the records to the City of

Pasadena or reimburse the City for all reasonable and extra costs incurred in conducting the audit at a location other than the City of Pasadena, including, but not limited to, such additional (out of the City) expenses for personnel, salaries, private auditors, travel, lodging, meals and overhead.

15.4 CONFLICT. Franchisee hereby represents warrants and certifies that no member, officer or employee of the Franchisee is a director, officer or employee of the City of Pasadena, or a member of any of its boards, commissions or committees, except to the extent permitted by law.

16.0 NOTICES.

Except as otherwise provided in this Agreement, all notices required by this

Agreement or by Chapter 10.46 of the Municipal Code shall be given by personal service or by deposit in the United States mail, postage pre-paid and return receipt requested, addressed to the parties as follows:

To City:

Franchisee:

Notice shall be deemed effective on the date personally served or, if mailed, three days after the date deposited in the mail.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date set forth below.

DATED: CITY OF PASADENA

By:___________________________

MIGUEL MÁRQUEZ

City Manager

ATTEST:

Mark Jomsky, CMC City Clerk

DATED: FRANCHISEE

By: _______________________

(typed name)

Title:____________________

APPROVED AS TO FORM:

Javan N. Rad Chief Assistant City Attorney

REVIEWED:

Purchasing Administrator