CITY OF POMONA
C A L I F O R N I A
Notice Inviting Sealed Qualifications
for
TOWING SERVICES FRANCHISE
Specification # 1010.21
SUBMISSION DEADLINE
June 24, 2013
Before the time of 4:30 PM Submit To:
City of Pomona Purchasing Office
505 S. Garey Ave
P.O. Box 660
Pomona CA 91769
TOWING SERVICES FRANCHISE Specification #1010.21 TABLE OF CONTENTS Page No.
I. INTRODUCTION - Notice to Bidders . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. DEADLINE FOR SUBMITTING PROPOSALS . . . . . . . . . . . . . . . . . . . . . . 1
III. BID INQUIRIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
IV. PROPOSAL INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
V. SUBMITTAL REQUIREMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
VI. WITHDRAWAL OF PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
VII. EVALUATION AND SELECTION PROCESS . . . . . . . . . . . . . . . . . . . . . . . 4
VIII. AWARD OF FRANCHISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
IX. SCOPE OF WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
X. FRANCHISE TERMS & CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
XI. LICENSES, PERMITS, AND LAND USE APPROVALS. . . . . . . . . . . . . . . 14
XII. LEGAL RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
XIII. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ATTACHED PROPOSAL DOCUMENTS
• Proposal Response Form • Minority Business Questionnaire Form
• Statement of Non-Collusion Form
• Agreement for Indemnification by Contractor/Vendor and Acceptance and Acknowledgment of Procurement Practices of the City of Pomona
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I. INTRODUCTION – Notice to Bidders The City of Pomona (the “City”) is seeking qualified proposals from tow truck operators to provide tow truck services to the City. All franchises for towing services are awarded by the City Council in its sole and absolute discretion for an initial term of three (3) years, as provided by Section 58-678 of the Pomona City Code. If the City receives more than one (1) qualified bid, the bidders shall be ranked from the top to bottom by the City’s Department of Finance based on the criteria set forth in Chapter 58 and this Request for Qualifications (“RFQ”). The City Council shall decide, in its sole and absolute discretion, whether to grant a franchise, at all, and if so, how many franchises to grant, or whether there is only one (1), or more than one (1), qualified bidder. The City shall have the sole and absolute discretion to determine whether it will subsequently seek future bids for tow truck services. II. DEADLINE FOR SUBMITTING PROPOSALS Proposals must be received by the City’s Purchasing Office by not later than 4:30 p.m. on June 24, 2013. One original and three copies of the proposal shall be submitted in a sealed envelope plainly marked on the outside, “TOWING SERVICES FRANCHISE.” Proposals may be mailed or delivered by messenger; however, it is the Proposer’s sole responsibility to ensure delivery of the proposal to the hands of the Purchasing Office’s designated official prior to the submittal deadline. Delays due to mail handling or delivery services will not excuse late delivery of a proposal. Proposals received by the Purchasing Office’s designated official after the deadline will not be considered. Proposals shall be delivered to the following address:
If by US Mail:
City of Pomona Purchasing Division P.O. Box 660 Pomona, CA 91769
If by hand delivery, FedEx, UPS:
City of Pomona Purchasing Division 505 South Garey Ave. Pomona, CA 91766
III. BID INQUIRIES
Section 2-975(2) of the Pomona City Code states that any unauthorized contact by the bidder during the bid or proposal process with an official or city employee, other than those shown on the RFP or bid, the Finance Director, or Purchasing Manager, shall cause the bidder to be immediately disqualified from consideration of award. In compliance with this code section only the following individuals may be contacted during this procurement process:
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Questions pertaining to the Scope of Work: Sgt. Christian Hsu, Pomona Police Dept. Telephone: (909) 620-2151 Email: [email protected] Questions other than the Scope of Work : Sonia Gil, Purchasing Division Telephone: (909) 620-2381 Email: [email protected] All questions regarding this Request for Qualifications must be submitted to the appropriate person, as stated above, by 10 a.m. on June 17, 2013, to allow adequate time for the City to respond to all proposal-related questions prior to the bid closing date. The proposer shall carefully examine this RFQ and any addenda that may be posted on the City’s website. The proposer shall seek clarification of any ambiguity, conflict, omission or other error in this RFQ in writing. If the answer materially affects the RFQ, the information will be incorporated into an addendum and posted on the City’s website. All addenda will be numbered in sequence, dated as of the date of issue and posting. It shall be each proposer’s responsibility to check the City’s website to determine if any addenda have been posted prior to the bid opening date. No letters or correspondence will be sent. Website address: http://www.ci.pomona.ca.us
Then click on: Business Then click on: Current Bids
Then click on: RFPs, Non Construction Bids IV. PROPOSAL INSTRUCTIONS Before submitting a proposal, the Proposer shall carefully examine the complete RFQ and PCC Chapter 58, Article VIII to ensure that it has a clear understanding of the requirements regarding the performance of work. As stated above, it is the Proposer’s responsibility to ask questions, request clarifications, or otherwise advise the City if any language, specifications or requirements of the RFQ appear to be ambiguous, contradictory, and/or arbitrary. The terms and conditions stated in this RFQ shall not be modified by anyone submitting a proposal. Regardless of any submitted proposal containing any modification to these terms and conditions, the terms and conditions within this RFQ apply. In the event that a Proposer does not meet certain requirements contained in Chapter 58, Article VIII, the Proposer must identify those requirements in the proposal, explain why those requirements are not met and, if applicable, provide a timetable and methods proposed to address the noncompliance.
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This RFQ and any attachments constitute the complete set of specifications and response forms. No verbal or written information that is obtained other than through this RFQ or its addenda shall be binding on the City. No employee of the City, except as stated under “Notice to Proposers” herein, is authorized to interpret any portion of this RFQ or give information as to the requirements of the RFQ. The City reserves the right to reject any and all proposals and to waive minor irregularities, or disqualify any proposal that contains false or misleading information. The City also reserves the right to approve more than one (1) franchise, as determined to be in the City’s best interest. V. SUBMITTAL REQUIREMENTS Each Proposer shall submit the following documents and information in order to be considered as a potential Franchisee. The following constitutes a complete proposal packet:
A. Completed “Proposal Response Form.” B. Completed “Minority Business Questionnaire.” This document is for statistical
purposes only, and is not utilized for selection criteria. C. Completed “Statement of Non-Collusion by Contractor.” D. Completed “Agreement for Indemnification by Contractor/Vendor And
Acceptance And Acknowledgment of Procurement Practices of The City Of Pomona.”
E. A written document that: 1. Indicates compliance, and the manner of compliance, for each and every
numbered subsection listed in PCC Section 58-676, 1 through 28 inclusive. This written document shall be done in a clear format that lists and addresses each subsection separately;
2. Includes a general statement of compliance and agreement to comply with all the terms and conditions of PCC Sections 58-674, 58-677 and 58-679, inclusive; and
3. Clearly identifies: a. the legal and common name of the Proposer’s towing service
business; b. the legal structure (i.e., partnership, corporation) of the business; c. the address(es) of the business, including addresses both within the
City and outside of the City; d. the number and kind of trucks included as part of the proposal; e. the number of employees employed by the business; f. the names and titles of the officers of the business, and g. the number of years the business has operated in the City.
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VI. WITHDRAWAL OF PROPOSALS A proposal may be withdrawn by a written request signed by the Proposer. Such requests must be delivered to the Purchasing Office’s designated official prior to the deadline referenced above The withdrawal of a proposal will not prejudice the right of the Proposer to submit a new proposal, provided that the Proposer submits a new proposal prior to the submittal deadline. VII. EVALUATION AND SELECTION PROCESS Pursuant to PCC Section 58-675, the City’s Department of Finance shall initially evaluate the submitted proposals on the basis of written material provided, with clarification as needed through communication with Proposers. The name of the most qualified proposer, if there is one, shall be forwarded to the Chief of Police, who shall conduct a background investigation of the Proposer and its proposal. Based on the results of the background investigation, the Chief of Police shall then make recommendations in writing to the City Council regarding the tow truck providers to which the City should award a franchise. After approval of said recommendations by the City Council, the City will then enter into individual franchise negotiations with each proposed Franchisee. Once a final franchise agreement has been reached, said agreement must be approved by the City Council at a public hearing. VIII. AWARD OF FRANCHISE Issuance of this RFQ and receipt of proposals does not commit the City to award a franchise for towing services. The City reserves the right to reject any or all proposal(s), to accept any proposal or portion thereof, to waive any irregularity, or disqualify any proposal that contains false or misleading information, and to take the proposals under advisement for a period of 90 days or as may be required to provide for the best interests of the City. In no event will an award be made until all necessary investigations are completed as to the responsibility and qualifications of the Proposer to whom the award is contemplated. IX. SCOPE OF WORK Selected Proposer(s) shall be required to comply with all provisions of Pomona City Code (“PCC”), Chapter 58, Article VIII as set forth below:
CHAPTER 58. ARTICLE VIII.
TOW SERVICE FRANCHISES Sec. 58-671. Purpose.
It is the purpose and intent of this article to provide for and specify the means for the city to attain the best possible tow truck services for the city.
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Sec. 58-672. Authority to grant.
The city council may at its discretion, by the adoption of an ordinance, grant a nonexclusive franchise to a tow truck operator to provide towing services to the city under and pursuant to the provisions of article XIII of the Charter and the provisions of this article. Sec. 58-673. Terms and conditions.
(a) All franchises granted to franchisees pursuant to this article shall be nonexclusive and shall be for a term to be specified by the city council in the ordinance granting a franchise and in the franchise agreement between the city and the franchisee, subject to the requirements of city Charter sections 1301 through 1303.
(b) No section of this article shall be deemed to require restricting the number of franchises to one or any particular number, and no section of this article shall be deemed to require the city council to grant any franchise if the council determines that the grant of any such franchise is not in the best interest of the city and the public.
(c) All tow truck operator franchises shall be subject to the terms and conditions specified in this article, as well as any terms or conditions specified in the ordinance granting the franchise and the franchise agreement.
(d) In granting any tow truck operator franchise, the city council may prescribe such other terms and conditions, not in conflict with this article, as are determined by the city council to be in the best interest of the city and public. Sec. 58-674. Transfer or assignment.
A tow truck operator franchisee 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, contract, consolidation or otherwise, the franchise or any rights or privileges therein granted, without the prior written consent of the city council. The city council's approval of a transfer or assignment of the franchise granted pursuant to this article shall be conditioned upon the franchisee's sale or disposal of all ownership rights in the franchised tow truck business. A tow truck operator franchisee who desires to transfer or assign his franchise, because he intends to sell or dispose of all interests in the tow truck business that is franchised with the city, shall make a written request for a transfer or assignment of the franchise. The written request, a nonrefundable deposit set by resolution of the city council and the proposed sale agreement or other document evidencing disposal of the franchised tow truck business shall be submitted to the department of finance at least 120 calendar days before the requested effective transfer or assignment date. The department of finance and the police department shall investigate the proposed transferee or assignee and determine whether the transferee or assignee is qualified to serve as a tow truck operator franchisee pursuant to the criteria and requirements set forth in this article and make a recommendation to the city council. Any attempt to sell, transfer, lease, assign or otherwise dispose of the franchise without the prior consent of the city council shall be null and void.
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Sec. 58-675. Selection of franchisees.
(a) If the chief of police determines that, due to an increase in the volume of calls and/or expiration or termination of an existing franchise, an additional or new tow truck operator franchisee is needed to provide tow truck services to the city, the chief may first approach the remaining or current franchisees regarding the possibility of increasing their towing capacity to meet the increased city demands. If the remaining or current franchisees are unable or unwilling to meet the increased demands of the city, the chief shall request that the department of finance send out a notice of request for qualifications for a tow truck operator franchise. The request for qualifications shall be prepared by the department of finance and shall be approved by the chief of police. The department of finance shall select the most qualified tow truck operator, provided that the city receives at least one qualified proposal. The name of the most qualified proposer, if there is one, shall be forwarded to the chief of police who shall conduct a background investigation of the operator and his employees and verify all information included in the proposal submitted to the city. Upon successful completion of the background investigation, the chief of police shall recommend in writing to the city council an award of a franchise based on the objective criteria established by the chief of police and as set forth in this article. Franchises shall be awarded at the city council's discretion in a manner consistent with the provisions of article XIII of the city Charter and this article. In preparing requests for and evaluating the proposals received by the city, the department of finance shall comply with the procedures and criteria established by the chief of police and in accordance with this article.
(b) At least 120 calendar days prior to the expiration of any existing franchise agreement, the chief of police, director of finance and city manager shall enter into discussions with the franchisee regarding the potential extension of the franchise agreement. If the parties reach a mutually acceptable agreement to extend the franchise, a new franchise shall be awarded at the city council's discretion in a manner consistent with the provisions of article XIII of the city Charter and this article. Nothing in this section shall be construed to limit the ability of the city council to approve, deny or modify any franchise agreement extension, negotiated by city staff. If no agreement for the extension of the franchise is reached prior to the expiration of the franchise term, including any option periods, the franchise will be considered expired, and notice of a request for qualifications must be sent out under the procedures outlined in this section.
(c) Notwithstanding subsections (a) and (b) of this section, the initial selection process after the adoption of the ordinance from which this article derives shall be conducted utilizing an expedited request for the qualification procedure to all existing tow truck operators on the city's current rotation, as well as any tow truck operators who have requested inclusion on the rotation within the preceding six calendar months. Again, nothing in this section shall be construed to require the city council to approve any specific franchise application or to limit the ability of the city council to approve, deny or modify any franchise agreement submitted to it for approval.
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Sec. 58-676. Conditions.
Any tow service operator who obtains a franchise pursuant to this article shall be subject to the following:
(1) The tow service operator shall be able to hold a minimum of 100 vehicles on a lot. Lighting shall be sufficient to afford easy visibility to all areas of the lot. The lot must be in a commercial or industrial area in a zone for which the business use is permitted and located within the city. The business must comply with all city, county and/or state standards and must at all times possess a valid and current city business license in accordance with article VIII of chapter 50.
(2) The tow service operator shall have his lot completely enclosed with a minimum of a six-foot high fence equipped with a security device, as approved by the community development department. Security in the lot shall be adequate to preclude theft, vandalism or damage by activity while in the carrier establishment. No stored vehicles shall be visible from any adjacent roadway. No vehicles shall be parked or stored on the public streets at any time. The business must provide offstreet 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 parking for disabled persons. The diabled persons parking space shall be van accessible. Storage vehicles should be secured away from customer parking and the office area.
(3) The tow service operator shall have an office and lot in the same location within the city, with a sign posted including the company name, address, phone number and hours of operation, to be clearly visible from the roadway and shall have been operating out of an office and a storage yard, meeting the requirements of this article, within the city's sphere of influence for at least two full calendar years prior to applying for and obtaining a franchise pursuant to this article.
(4) The tow service operator shall maintain a sign listing the rates and charges of all towing and storage services offered. Such sign shall be conspicuously placed in the office or other places where customer financial transactions take place.
(5) The tow service operator shall have a driver on call 24 hours a day, seven days a week, when the carrier is at the top of the rotation list, and shall respond to calls within 20 minutes or 40 minutes for heavy-duty tows. If the carrier is unable to respond within the required time period and does not notify the police department that there will be an extended delay, a member of the police department shall forward a memorandum to the chief of police within 24 hours reporting the delay and the nonresponse. The business must be open to the public at least eight hours per day, Monday through Friday.
(6) The tow service operator shall have no more than two telephone numbers listed with the police department.
(7) The tow service operator shall agree to protect, indemnify, defend and hold harmless the city and the redevelopment agency of the city and its officers, employees, appointed or elected officials from all claims, demands or liability
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arising out of or encountered in connection with its agreement with the city or the performance of work in preparation for the towing operation or claims, demands and liability occurring during the towing and subsequent storage and maintenance activities, whether such claims, demands or liability are caused by the tow service or its employees or agents.
(8) The tow service operator shall use business-band two-way radios and shall not use a shortwave police scanner or C.B. radio to answer police calls.
(9) The tow service operator shall affix temporary markings on the windshield of all cars ordered impounded by the police department. In addition an operator may post a tag on the windshield of the car.
(10) The tow service operator shall collect all towing or hauling and storage charges on each vehicle from the owner. In no event shall the city be liable for any such charge, and the carrier by accepting a franchise shall be considered as so agreeing. A detailed accounting of the number of released vehicles subject to the franchise fee shall be submitted with the monthly payment to the city. The right is reserved by the city to audit, at any time, any and all amounts collected by the towing carrier for hauling and storage charges. It is the responsibility of the tow carrier to maintain and to make available, as requested, sufficient documentation to support such an audit; however, in no event shall the city require documentation to be maintained by the franchisee for a period longer than three calendar years.
(11) When called from the top of the rotation list by the police department, the tow service operator shall respond to the department's call and pick up all vehicles that have been involved in an accident or a traffic violation, unless the vehicles are needed for criminal evidence or the owner or someone designated by the owner is present and is capable of removing a vehicle or calling a tow company of his choice to remove a vehicle, provided the street can be cleared for safe public use, as determined using reasonable dispatch by the officer on the scene.
(12) The tow service operator shall not release any vehicle in his possession for which a storage form was completed until all state and city requirements are met. This does not apply to vehicles legally obtained through lien sale or for which ownership is transferred to the franchisee for payment of towing and storage fees.
(13) The tow service operator shall furnish each owner of an automobile impounded by the tow truck operator with a fully itemized billing.
(14) The tow service operator shall implement a written policy for lien fees, whereby a lien cannot be placed upon a vehicle until after 72 hours of impoundment in accordance with state law. The policy shall comply with all requirements of Vehicle Code §§ 22851--22851.12 and shall be posted with the sign listing the tow rates.
(15) The tow service operator shall tow and store police vehicles inside the city, vehicles within ten miles of the city boundaries, and vehicles seized as evidence in criminal investigations free of charge. The tow service operator shall tow any city vehicle, with the exception of city vehicles requiring a heavy-duty tow, within the city boundaries free of charge. The tow service operator shall tow
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any city vehicle requiring a heavy-duty tow, regardless of location, and any city vehicle located outside the city or police vehicle more than ten miles from the city boundaries, at a cost equal to 50 percent of the established rate for such tows.
(16) The tow service operator shall agree to abide by the rotation system established by the chief of police in accordance with this article.
(17) The tow service operator shall have at least five tow trucks, one of which shall be a medium-duty wrecker; five qualified drivers, each of whom shall be over the age of 18; and adequate equipment to handle police calls, impounds and storage of motor vehicles available when on top of the rotation list. In addition, the city prefers that one of the five tow trucks be a heavy-duty wrecker or heavy-duty tilt trailer. Any operator who does not have the necessary equipment available for a timely response to handle a particular police call shall forfeit his spot on the rotation list to the next qualified tow operator.
(18) The tow service operator shall have tow truck vehicles that are like new in appearance.
(19) The tow service operator shall have a schedule of rates available upon demand in all vehicles at all times.
(20) The police department reserves the right to inspect all drivers, vehicles, equipment and yards. The police department also reserves the right to require that all towing vehicles be inspected by an automotive professional certified by the state bureau of automotive repair and selected by the police department. All vehicle inspection fees shall be borne solely by the franchisee and shall be due and payable upon presentation of the vehicle for inspection. A yearly inspection of all vehicles is required, and the franchisee shall not interfere in any way with any such inspections. The towing franchisee is responsible for arranging the annual vehicle inspection with the police department. Any towing vehicle that fails an inspection shall not be used to provide towing service in the city until it is repaired and passes reinspection. In lieu of these inspection procedures, the chief of police may deem the inspection procedures of the state highway patrol that are in effect at the time to be sufficient to meet the requirements of this subsection.
(21) The tow service operator shall not charge rates in excess of the rate schedule approved by the city council. Requests for a rate increase shall be made in writing to the chief of police. The chief of police shall review the request and make recommendations to the city council as to whether or not increases should be granted.
(22) The tow service operator shall obtain and produce, upon request, proof of workers' compensation, insurance to the extent required by law in the amount of $1,000,000.00 per occurrence, and commercial liability and commercial automobile/truck insurance of not less than $1,000,000.00 per occurrence, $2,000,000.00 aggregate. Such policies will name the city as additional insured and in addition shall be endorsed to state that coverage shall not be reduced, suspended, voided or canceled by either party during the term of the franchise, except upon 30 days' written notice to the city.
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(23) The tow service operator shall provide, free of charge, storage for four vehicles in an inside garage for V.I.N. and mechanical inspections, at the request of the police department.
(24) The tow service operator shall pay the city a franchise fee in accordance with this article.
(25) The tow service operator shall agree not to charge an after-hours fee to persons who appear to claim a stolen vehicle on a Saturday between the hours of 8:00 a.m. and 12:00 p.m. Upon approval of the police department, the operator may release personal property from an impounded vehicle at the request of the vehicle owner or his agent. There shall be no charge for the release of personal property during normal business hours. Operators may charge an after-hours release fee for property released after normal business hours.
(26) All towing vehicles shall be equipped with the auxiliary equipment required for vehicles towing for the state highway patrol, in accordance with attachment C of the state department of highway patrol tow service agreement (CHP 234 (Rev. 1-98) OPI 061) or any successor tow service agreement.
(27) Operators shall comply with all applicable federal, state and local regulations for providing towing service.
(28) The city reserves the option under this article and all franchise agreements granted pursuant to this article to require any tow operator to submit, on a quarterly basis, to the police department and not later than 20 days after the end of each quarter, response time statistics for all police tows, if the city determines that there are problems related to response times for any tow operator. This requirement shall continue in effect until otherwise waived by the city.
Sec. 58-677. Fees.
(a) Any tow truck operator granted a franchise pursuant to this article shall pay the city franchise charges and fees as may be determined by separate resolution of the city council. The franchise agreement entered into between the city and tow operator shall provide that any subsequent changes in the franchise fees and charges shall be applicable to the operator upon 30 days' written notice of such changes to the operator.
(b) Franchise fee payments due to the city under this section shall be computed monthly. For the purpose of the franchise fee payment computation, the applicable accounting period shall be a calendar month, unless otherwise agreed to in writing in advance by the city and the franchisee.
(c) The monthly franchise fee payments shall be due and payable on or before the 20th day of the month immediately following the month for which the franchise fee is calculated. Each payment shall be accompanied by a brief report from the franchisee showing the basis for the computation and a written statement, signed under penalty of perjury by an officer of the franchisee, which identifies in detail the sources and amounts of gross revenues received by the franchisee during the month for which payment is made. No acceptance or deposit of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance or
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deposit of any payment be construed as a release of any claim that the city may have for further or additional sums payable under this section.
(d) Any franchise fees which remain unpaid for more than ten calendar days after the date specified in subsection (c) of this section shall be delinquent and shall result in a penalty equal to ten percent of the unpaid amount. Such unpaid amount shall thereafter accrue interest at ten percent per year, compounded daily, until fully paid.
(e) The city reserves the right under the franchise to conduct quarterly audits to verify the number of vehicles upon which the franchise fee is computed. In addition, the franchisee or the franchisee's designated representatives shall, upon 15 days' written notice from the city, make available to the city its accounting records for confidential inspection and audit. If the results of the audit show an underpayment of less than five percent or an overpayment, the city shall pay its own costs associated with the audit. If the results of any audit show a franchise fee underpayment of greater than five percent, the franchisee will pay all costs associated with the audit, the total amount in error as indicated by the audit, and a penalty equal to ten percent of the amount in error. If the results of the audit show an underpayment of greater than ten percent, the franchisee will pay the cost of the audit, the total amount in error as indicated by the audit, a penalty equal to 50 percent of the amount in error, and interest on the amount in error at the rate of ten percent per annum, compounded daily from the date the underpayment should have been paid pursuant to subsection (c) of this section until the date the underpayment is paid in full.
(f) If the results of the audit are disputed, the city may, at its sole discretion, elect to arbitrate the dispute. If the city elects to arbitrate, the city and the franchisee shall each select an independent auditor at their own cost. The two auditors will 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, and the cost will be split between the city and the franchisee. The determination of the third independent auditor will be final.
(g) By accepting any franchise granted pursuant to this article, the franchisee irrevocably waives the defenses of any statute of limitation, laches, waiver or other legal or equitable doctrine of similar import or effect in any action brought by the city to recover any franchise fee, interest or penalties due under this section.
(h) By accepting any franchise granted pursuant to this article, the franchisee agrees that if he challenges the right of the city to collect the franchise fee provided by this section, any relief requested by the franchisee and awarded to him by virtue of such challenge shall be prospective only, and only from the date of the filing of the initial pleading seeking such relief in a court of competent jurisdiction. The franchisee 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. If the franchisee's challenge to any franchise fee payments should result in an initial judgment in his favor, the franchisee shall continue to make all franchise fee payments in accordance with this section pending an appeal by the city. If 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 franchisee those portions of the franchise fee which the court deems the city was
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not entitled to collect and which were made subsequent to the filing of the initial action by the franchisee, exclusive of interest on such amount.
(i) The city shall retain the right to impose alternative forms of taxes and/or fees if
the franchise fees provided for in this section are no longer assessable due to a subsequent change in federal, state or local law. Sec. 58-678. Agreements.
All franchises granted by the city council pursuant to this article shall be memorialized in a written agreement between the franchisee and the city and shall be entered into within 30 days of the effective date of any city council action awarding a franchise. The written agreement shall be in a form approved by the city attorney. Each written agreement shall provide that the terms and conditions of each franchise as set forth in this article shall be incorporated by reference into the agreement. A franchise agreement may be extended, at the sole and absolute discretion of the city council, for a period not to exceed 90 days or any extension period contained in the written agreement between the parties, whichever is longer. All franchises granted pursuant to this article shall be for an initial term of three years and shall contain an option to extend the franchise for a minimum of one year to a maximum of three three-year extension periods. In no event shall any parol agreement pertaining to extension of a franchise be entered into or considered binding upon the city. All terms and conditions contained in the prior written agreement between the franchisee and the city shall continue in full force and effect. Sec. 58-679. Rotation system.
(a) The tow truck operators who obtain a franchise pursuant to this article shall provide towing service to the city pursuant to the rotation system established by the chief of police. The chief of police shall develop a list of the franchised tow truck operators. The franchise tow truck operator at the top of the list shall be on call to provide towing service to the city in accordance with the rotation system established by the chief of police. Once a tow truck operator completes its designated on-call service, the operator's name shall be moved to the bottom of the list, and the operator then at the top of the list shall begin its designated on-call service. The city may request services from a franchised tow truck operator who is not on call or who is not franchised under this article in emergencies when the city manager, chief of police or the watch commander deems an emergency to exist.
(b) Notwithstanding subsection (a) of this section, the city reserves the right to call an operator out of order should the call require a heavy-duty tow and the next operator in rotation does not possess the necessary equipment to make the tow. In addition, the city also reserves the right to make a special request for a particular tow operator, out of rotation, should the circumstances necessitate the request in order to serve the best interests of the city. All franchised tow truck operators shall hold the city harmless from any mistake made in the rotation assignments.
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Sec. 58-680. Cancellation, suspension and revocation.
(a) No franchise agreement or franchise renewal agreement granted pursuant to this article shall be cancelled, without cause, within one year of its effective date. The city council also reserves the right to suspend or revoke any franchise granted pursuant to this article and to rescind all rights and privileges associated with it at any time if the franchisee:
(1) Defaults in the performance of his material obligations under this article or the franchise agreement and fails to cure such default within 30 calendar days after receipt of written notice of the default from the city and a reasonable opportunity to cure the default in accordance with subsection (b)(1) of this section;
(2) Fails to provide or maintain in full force and effect the insurance coverage as required by this article and as set forth in the franchise agreement;
(3) Violates any order or ruling of any regulatory body having jurisdiction over the franchisee relative to the franchisee's tow truck business unless such order or ruling is being contested by the franchisee by appropriate proceedings conducted in good faith;
(4) Practices any fraud or deceit upon the city or upon persons to whom he provides tow truck service as determined by a court of law; or
(5) Becomes insolvent, unable or unwilling to pay his debts and obligations or is adjudged to be bankrupt. The city's revocation of the franchisee's franchise shall in no way affect any right of the city to pursue any remedy under the franchise or any other provision of law.
(b) Prior to suspending or revoking a franchise granted under this article, the city
shall give the franchisee notice and an opportunity to be heard on the matter, in accordance with the following procedures:
(1) The city shall first notify the franchisee of the violation in writing by personal delivery or registered or certified mail and demand that the franchisee cure the default within a reasonable time, which shall not be less than ten days for the franchisee's failure to pay any sum or other amount due to the city under this article or the franchisee's franchise agreement with the city and 30 days in all other cases. If the franchisee fails to correct the violation within the time prescribed or if the franchisee fails to commence correction of the violation within the time prescribed, the city shall give the franchisee 14 calendar days' written notice of a public hearing to be held before the city council. The written notice shall specify the alleged violations supporting the recommendation for suspension or revocation of the franchise.
(2) At the hearing the city council shall hear and consider all relevant evidence submitted by staff and the franchisee or his agent or representative. If the city council finds that the franchisee has committed a material breach under the franchise agreement or this article and that the franchisee has not corrected the violation or has not diligently commenced correction of the violation after receiving proper notice in accordance with this article, the city council may suspend or revoke the franchise.
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(c) Notwithstanding the city council's right to suspend or revoke a franchise, the chief of police shall have the right to suspend, for a period not to exceed 30 days, any franchise granted pursuant to this article and to rescind all rights and privileges associated with it during the suspension period if the franchisee violates any section of this article, state or federal law which places the health or safety of the public in immediate danger. X. FRANCHISE TERMS AND CONDITIONS Any Proposer being granted a tow truck operator franchise must enter into a franchise agreement agreeing to comply with Pomona City Code (PCC) Sections 58- 671 through 58-680. The City reserves the right to reject any and all proposals, to waive minor irregularities, or disqualify any proposal that contains false or misleading information. The City also reserves the right to approve more than one (1) franchise, as determined to be in the City’s best interest. XI. LICENSES, PERMITS, AND LAND USE APPROVALS The Proposer must comply with all applicable federal, state, county and local laws, standards and regulations, as they, from time to time, may be amended, including, but not limited to, all requirements of the California Vehicle Code, all requirements of the California Highway Patrol Tow Service Agreement and attachments, and all terms and conditions of PCC Chapter 58, Article VIII. In particular, the Proposer must – at the time it makes a proposal to the City and for the entire duration of the time that the Proposer provides tow truck services to the City – possess all permits, licenses and/or land use approvals required by the City or any other local, county, state or federal agency to operate its towing service business on the lot. The Proposer shall identify in its proposal the lot from which it will provide tow truck services to the City. The Proposer must have, at the time it submits its proposal, a legal interest in the lot (ownership or leasehold interest) and the right to lawfully operate the business from that lot. The Proposer must lawfully be operating from such lot at the time it submits its proposal and in particular must meet all of the requirements of PCC Section 58-676, in order to be considered for a tow franchise. The City reserves the right to automatically disqualify any proposal that does not meet the terms and conditions set forth in Chapter 58, Article VIII or the terms and conditions outlined in this RFQ. XII. LEGAL RESPONSIBILITIES All proposals must be submitted, filed, made, and executed in accordance with State and Federal laws relating to proposals for contracts of this nature whether the same are expressly referred to herein or not. Any person submitting a proposal shall by such action thereby agree to each and all of the terms, conditions, provisions, and
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requirements set forth, contemplated, and referred to in scope of services, contract documents, and to full compliance therewith. XII. INSURANCE The Proposer shall purchase and maintain such insurance as will protect the Proposer and the City against any and all claims and demands arising from the execution of the Agreement. The Proposer (or hereafter “Franchisee”) shall maintain throughout the duration of the term of the Agreement, liability insurance covering the Franchisee and designating City including its elected or appointed officials, directors, officers, agents, employees, volunteers, or franchisees, as additional insureds against any and all claims resulting in injury or damage to persons or property (both real and personal) caused by any aspect of the Franchisee’s work, in amounts no less than the following and with such deductibles as are ordinary and reasonable in keeping with industry standards. It shall be stated, in the Additional Insured Endorsement, that the Franchisee’s insurance policies shall be primary as respects any claims related to or as the result of the Franchisee’s work. Any insurance, pooled coverage, or self-insurance maintained by the City, its elected or appointed officials, directors, officers, agents, employees, volunteers, or franchisees shall be non-contributory. General Liability: a. General Aggregate $2,000,000 b. Products Comp/Op Aggregate $2,000,000 c. Personal & Advertising Injury $1,000,000 d. Each Occurrence $1,000,000 e. Fire Damage (any one fire) $ 50,000 f. Medical Expense (any one person) $ 5,000 Workers’ Compensation: a. Workers’ Compensation Statutory Limits b. EL Each Accident $1,000,000 c. EL Disease - Policy Limit $1,000,000 d. EL Disease - Each Employee $1,000,000 Automobile Liability a. Any vehicle, per occurrence $1,000,000 b. Combined aggregate $2,000,000 The Franchisee’s insurance policies shall name the City as additional insured, and in addition shall be endorsed to state that coverage shall not be reduced, suspended, voided or canceled by either party during the term of the franchise, except upon thirty
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(30) days written notice to the City. Certificates of insurance and additional insured endorsements shall be furnished to City thirty (30) days prior to the effective date of the Agreement. Refusal to submit such certificates shall constitute a material breach of the Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement. If proof of insurance required under this Agreement is not delivered as required or if such insurance is canceled and not adequately replaced, City shall have the right but not the duty to obtain replacement insurance and to charge the Franchisee for any premium due for such coverage. City has the option to deduct any such premium from the sums due to the Franchisee. Insurance is to be placed with insurers authorized and admitted to write insurance in California and with a current A.M. Best's rating of A-:VII or better. Acceptance of insurance from a carrier with a rating lower than A-:VII is subject to approval by City’s Risk Manager. Franchisee shall immediately advise City of any litigation that may affect these insurance policies.
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DOCUMENTS TO BE COMPLETED AND
SUBMITTED WITH PROPOSAL
• Proposal Response Form • Minority Business Questionnaire Form
• Statement of Non-Collusion Form
• Agreement for Indemnification by Contractor/Vendor and Acceptance and Acknowledgment of Procurement Practices of the City of Pomona
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CITY OF POMONA
PROPOSAL RESPONSE FORM FOR
TOWING SERVICES FRANCHISE
Spec# 1010.21
TO: CITY OF POMONA FROM ________________________________________________________________
Company Name __________________________________________________________________
Mailing Address _________________________________ ______________________________
Phone Number Fax Number _________________________________
Contact Person _________________________________ Pomona Business Account Number __________________________________________________________________
Business’ Physical Address __________________________________________________________________
Location of Lot By signing this Proposal Response Form, Proposer acknowledges and agrees to be bound by the terms and conditions set forth in the proposal documents. If awarded a Towing Services Franchise, the undersigned agrees to provide towing services to the City of Pomona, pursuant to the conditions set forth in the RFQ without exception. ____________________________________ ______________________________
Authorized Signature Title
_____________________________________ ________________________________ Print Name Date
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CITYOF POMONA -MINORITY BUSINESS QUESTIONNAIRE
Date _______________________ Name of Business_______________________________________________________ Division or Subsidiary, if applicable_________________________________________ Business Address _____________________________________________________ _____________________________________________________
___________________________________________________________
Telephone No.____________________________________________________
Contact Person______________________________________________ Title 11 _____________________________________________________
Type of Business: Non Profit [ ]
Sole Proprietorship [ ]
Partnership - General [ ]
- Limited [ ]
Corporation [ ]
Is the business 51% or more owned by:
American Indian [ ]
Asian [ ]
Black [ ]
Hispanic [ ]
Female [ ]
Other_______________________ [ ]
(please specify) Prepared By: _______________________________ __________________________ (Title)
For more information, contact Purchasing Division, City of Pomona, (909) 620-2381.
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City of Pomona - Statement of Non-Collusion by Contractor
The undersigned who submits herewith to the City of Pomona a Bid or proposal does hereby certify that:
a. All statements of fact in such bid or proposal are true; b. Such bid or proposal was not made in the interest of or on behalf of any
undisclosed person, partnership, company, association, organization or corporation;
c. Such bid or proposal is genuine and not collusive or sham; d. Said bidder has not, directly or indirectly by agreement, communication or
conference with anyone, attempted to induce action prejudicial to the interest of the City of Pomona or of any other bidder or anyone else interested in the proposed procurement;
e. Bidder did not, directly or indirectly, collude, conspire, connive or agree with anyone else that said bidder or anyone else would submit a false or sham bid or proposal, or that anyone should refrain from bidding or withdraw his bid or proposal;
f. Bidder did not, in any manner, directly or indirectly seek by agreement, communication or conference with anyone to raise or fix the bid or proposal price of said bidder or of anyone else, or to raise or fix any overhead, profit or cost element of his bid or proposal price, or that of anyone else;
g. Bidder did not, directly or indirectly, submit his bid or proposal price or any breakdown thereof, or the contents thereof, or divulge information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member agent thereof, or to any individual or group of individuals, except to the City of Pomona, or to any person or persons who have a partnership or other financial interest with said bidder in his business.
h. Bidder did not provide, directly or indirectly to any officer or employee of the City of Pomona any gratuity, entertainment, meals, or any thing of value, whatsoever, which could be construed as intending to invoke any form of reciprocation or favorable treatment.
i. No officer or principal of the undersigned firm is employed or has been employed, either full or part time, by the City of Pomona either currently or within the last two (2) years; or is related to any officer or employee of the City by blood or marriage within the third degree.
j. No offer or principal of the undersigned firm nor any subcontractor to be engaged by the principal has been convicted by a court of competent jurisdiction of any charge of fraud, bribery, collusion, conspiracy or any other act in violation of any state or federal antitrust law in connection with the bidding upon award of, or performance of, any public work contract, with any public entity, within the last three years.
I, ___________________________________, certify, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct and that this certification was executed on_______________ at _________________, California. (Date) (Location) Signed by: ________________________________ ______________________________ (Title) Business Address_ _________________________________________
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AGREEMENT FOR INDEMNIFICATION BY CONTRACTOR/VENDOR AND
ACCEPTANCE AND ACKNOWLEDGMENT OF PROCUREMENT PRACTICES OF THE CITY OF POMONA
The City of Pomona requires contractors and suppliers of services to the City to agree to indemnify and hold the City of Pomona harmless for claims or losses arising from or connection with the contracting party’s work for the City of Pomona before a franchise agreement is granted.
To reduce the possibility of misunderstanding between contracting parties and the City in ease of a claim or lawsuit, the City of Pomona is requiring that contacting parties who perform services for the City sign this letter. This letter will become a part of each agreement between the City of Pomona and the contracting parties signing the letter until contraction expiration.
In consideration of the opportunity of doing work for the City of Pomona and benefits to be received thereby, the contracting party to this agreement agrees as follows:
1. That where a contract/agreement is issued by the City of Pomona awarding a contract, this
Letter Agreement is to be considered part of that contract.
2. Contractor agrees to indemnify the City of Pomona, and any officer, employee or agent, and hold the City of Pomona, and any officer, employee or agent, there of harmless from any and all claims, liabilities, obligations and causes of action of whatsoever kind or nature for injury to, or death of, any person (including officer, employees and agents of the City of Pomona), and for injury or damage to or destruction of property (including property of the City of Pomona), resulting from any and all actions or omissions of contractor or contractor’s employees, agents or invitees, or any subcontractor of contractor or any of such subcontractor’s employees, agents or invitees.
3. That the contracting party specifically waives the benefits and protection of Labor Code Section
3864 which provides: “If an action as provided in this chapter is prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person or settlement by such third person the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in the absence of a written agreement so to be executed prior to the injury.” This waiver will occur as to any contracts awarded by the City of Pomona to the contracting party to this letter while this Agreement is in force.
4. That this Agreement has been signed by an authorized representative of the contracting party,
and such representative has the authority to bind the proposer to all terms and conditions of this Agreement.
5. This Agreement and any Towing Services Franchise Agreement shall be non-transferrable
without prior written authorization by the City. This letter Agreement cannot be modified or changed without the express written consent of the City Attorney of the City of Pomona.
On behalf of___
(Name of Contractor or Vendor)
(Address)
I agree to the terms of this Letter Agreement. By: __ (Name) (Manager, Owner, or Officer of Company) Date:
