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Ordinance No. 11,032ORMNANCE NO. 11,032 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN. TEXAS. REPEALING ARTICLE III "TOW TRUCKS" OF CHAPTER 102 "VEHICLES FOR HIRE" OF THE CODE OF ORDINANCES OF THE CITY OF BAYTOWN, TEXAS, AMENDING CHAPTER 102 "VEHICLES FOR HIRE" OF THE CODE OF ORDINANCES OF THE CITY OF BAYTOWN. TEXAS. BY ADDING AN ARTICLE TO BE NUMBERED AND ENTITLED ARTICLE III "TOW TRUCKS" TO PRESCRIBE PROCEDURES FOR CONSENT AND NONCONSENT TOWS; AND APPROVING A STANDARD FORM TOW TRUCK AGREEMENT CORRESPONDING TO ARTICLE III "TOW TRUCKS" OF CHAPTER 102 "VEHICLES FOR HIRE" OF THE CODE OF ORDINANCES OF THE CITY OF BAYTOWN. TEXAS: CONTAINING A REPEALING CLAUSE: CONTAINING A SAVINGS CLAUSE: PRESCRIBING A MAXIMUM PENALTY OF FIVE HUNDRED AND NO /100 DOLLARS ($500.00) FOR EACH VIOLA,rION THEREOF; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN. TEXAS: Section l: That Article 111 "Tow Trucks" of Chapter 102 "Vehicles for I -fire" of the Code of Ordinances of the City of Baytown. Texas. is hereby repealed. Section 2: That Chapter 102 "Vehicles for Hire" of the Code of Ordinances of the City of Baytown. Texas. is hereby amended by adding an article, to be numbered and entitled Article III "Tow Trucks," which said article reads as follows: CHAPTER 102. VEHICLES FOR HIRE ARTICLE III. TON%' TRUCKS DIVISION 1. GENERALLY Sec. 102 -136. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: City official is an employee of the city authorized by the city manager to initiate the towing of a vehicle. Consent tow means any tow of a motor vehicle initiated by the owner or operator of the vehicle or by a person who has possession. custody, or control of the vehicle. The term does not include a tow of a motor vehicle initiated by a peace officer investigating a traffic accident or a traffic incident that involves the vehicle or a tow initiated by a city official pursuant to a court order. Heavy -duty rotation list means the list of heavy -duty towing companies who have been permitted by the city and have entered into a contractual relationship with the city to perform heavy -duty nonconsent tows at the request of the city. Nonconsent tow means any tow of a motor vehicle that is not a consent tow. Nonconsent tow includes a tow made from the scene of a vehicle accident or similar event after the vehicle owner fails to select a towing company or after the selected towing company fails to respond within the time frame established in subsection 102- 174(a). Public roadwav means a public street. alley. road, right -of -way or other public way, including paved and unpaved portions of the right -of -way. Regular rotation list means the list of towing companies who have been permitted by the city and have entered into a contractual relationship with the city to perform nonconsent tows at the request of the city. The regular rotation list shall be utilized for tows not requiring heavy -duty tow trucks. Tow truck means a motor vehicle, including a wrecker, permitted by the state commission of licensing and regulation and equipped with a mechanical device used to tow, winch, or othenvise move another motor vehicle. Tow truck operator means a person who holds an appropriate license issued by the state commission of licensing and regulation and operates a tow truck permitted by the state commission of licensing and regulation. Towing company means an individual, association, corporation. or other legal entity that controls, operates, or directs the operation of one or more tow trucks over a public roadway in this state but does not include a political subdivision of the state. Tow truck permit means a permit issued by the city to all towing companies that are on the heavy - duty or regular rotation lists. signifying that the tow trucks of that towing company may be dispatched to the scene of an accident. Tow truck ticket form means the form used by vehicle owners for the selection of towing companies. which form is prepared and used as provided in this article. Vehicle means a device in, on. or by which a person or property may be transported on a public roadway. The term includes an operable or inoperable automobile, truck, motorcycle. recreational vehicle, or trailer but does not include a device moved by human power or used exclusively on a stationary rail or track. Vehicle owner means a person: (A) named as the purchaser or transferee in the certificate of title issued for the vehicle under V.T.C.A.. Transportation Code, ch. 501; (B) in whose name the vehicle is registered under V.T.C.A., Transportation Code, ch. 502, or a member of the person's immediate family: (C) who holds the vehicle through a lease agreement; (D) who is an unrecorded lienholder entitled to possess the vehicle under the terms of a chattel mortgage: or (E) who is a lienholder holding an affidavit of repossession and entitled to repossess the vehicle. Vehicle storage facility means a garage, parking lot, or other facility that is: 2 (A) owned by a person other than a governmental entity; and (T3) used to store or park at least 10 vehicles each year. Sec. 102 -137. Penalty. Any person who shall violate this article shall upon conviction be punished as provided in section 1 -14. Sec. 102 -138. Tow truck committee; hearings. (a) There is created a tow truck committee. The term "committec." as used in this article shall mean the tow truck committee. The committee shall be composed of: 1. five citizens not in the tow truck business: and 2. one youth ex officio member between the ages of 14 and 18, who shall possess no voting privileges and whose only function shall be to render advice to the regular members of the committee. Three of the initial five voting committee members shall be designated by the city council to serve one -year terms. The terms of the remaining initial committee members and all subsequent terms of all voting committee members shall be for two years. The term of the youth ex officio member shall be for one year. Appointments shall be made in April of each year. (b) The committee shall meet at least once each calendar quarter. At each meeting, the city staff shall present a report on the operations and activities under this article. The committee shall review each towing company's activities for compliance with this article, the tow agreement, the statutes. and rules and regulations that govern tow truck operations and business. if the committee believes that one or more towing companies may not be in compliance with this article, the tow agreement. the statutes. and rules and regulations that govern tow truck operations and business. the committee shall set a hearing on the matter. (c) If a hearing is set by the committee. the towing company shall be given notice of the hearing and of the reason therefor. The notice must state that the towing company will be required to submit at the hearing proof of compliance with all applicable provisions of this article, the tow agreement, the statutes, and rules and regulations that govern tow truck operations and business. Such notice shall be mailed on or before the tenth day before the date of the hearing before the committee. (d) After the public hearing. the committee shall consider the evidence and arguments presented at the hearing to determine whether the towing company has violated this article, the tow agreement, the statutes. and rules and regulations that govern tow truck operations and business. If the committee finds that the towing company violated such article. the statutes, or rules and regulations, the committee shall take appropriate action against the towing company, which may include, but is not limited to, suspension of the tow truck permit, which shall result in a suspension from the applicable rotation list for a period determined to be appropriate by the committee. The committee shall reduce its findings to writing and deliver the same to the applicable towing company. Sec. 102 -139. Appeal of decision of the tow truck committee. (a) Any towing company shall have the right to appeal any decision of the tow truck committee to the city council by making written request to the city manager. Such request must be filed with the city clerk within 15 days after such person has been notified in writing of the decision of the committee and must state in detail the reason for the appeal. (b) No towing company shall have any right to appeal for relief to any court in regard to any matter covered by this article until after such towing company has exhausted the appeal procedure provided for in this section. (c) Upon hearing the appeal. city council may uphold, modify or reverse the decision of the tow truck committee. DIVISION 2. CONSENT AND NONCONSENT TOWS Sec. 102 -166. Rotation lists. (a) Regular rotation list. (1) For a towing company to be eligible to be placed on the regular rotation list, the towing company shall be permitted by the city to engage in nonconsent tows and shall enter into a contract in the form and substance approved by the city attorney for nonconsent tows. (2) The regular rotation list shall be used to select the towing company to respond to a regular nonconsent tow authorized by the city. For each regular nonconsent tow, the towing company will be called on a rotating basis so that after a towing company has been called for a regular nonconsent tow. the towing company shall be moved to the bottom of the list and shall not be called again until all other towing companies then on the regular rotation list have been called for a regular nonconsent tow. (3) A towing company shall not pass a call for a regular nonconsent tow. A towing company may request in writing to be temporarily removed from the regular rotation list. To be effective, the public safety communications division of the city must receive such request prior to the public safety communications division dispatching the tow truck company to the scene of an accident or similar event from the rotation list. (b) Heavy -dirty rotation list. (1) For a towing company to be eligible to be placed on the heavy -duty rotation list, the towing company shall be permitted by the city to engage in heavy -duty nonconsent tows and shall enter into a contract in the form and substance approved by the city attorney for heavy -duty nonconsent tows. (2) The heavy -duty rotation list shall be used to select the towing company to respond to a heavy -duty, nonconsent tow authorized by the city. For each heavy -duty nonconsent tow, 4 the towing company will be called on a rotating basis in a rotation manner so that after a towing company has been called for a heavy -duty nonconsent tow. the towing company shall be moved to the bottom of the list and shall not be called again until all other towing companies then on the heavy -duty rotation list have been called for a heavy -duty nonconsent tow. (3) A towing company shall not pass a call for a heavy -duty nonconsent tow. A towing company may request in writing to be temporarily removed from the heavy -duty rotation list. To be effective. the public safety communications division of the city must receive such request prior to the public safety communications division dispatching the tow truck company to the scene of an accident or similar event from the rotation list. (c) Regardless of the procedure established by this article, certified law enforcement officials shall control the scene of an accident in the manner they deem appropriate. Sec. 102 -167. Vehicle storage facilities. (a) A towing company performing a nonconsent tow who tows a vehicle to a vehicle storage facility shall tow the vehicle to a state - licensed vehicle storage facility within the corporate limits of the city unless directed otherwise by the vehicle owner a or city official[fl1. (b) All yards and storage areas used to store vehicles towed pursuant to this article shall be fenced and maintained in accordance with all applicable state laws and chapter 18. article X11 of this code. Sec. 102 -168. Solicitation of business prohibited. It shall be an offense of a person to stop, park. halt or operate a tow truck within 500 feet of the scene of a consent or nonconsent tow unless the towing company is dispatched to the scene by a city official. Sec. 102 -169. To-w truck ticket form. (a) Use. (1) When a peace officer determines that a consent or nonconsent tow is required for any vehicle. such peace officer shall inquire of the vehicle owner. if available. as to the location where the vehicle owner desires to have the vehicle towed. (2) if the vehicle owner designates a towing company to perform towing services. the peace officer shall communicate the fact to the public safety communications division. who shall call the designated towing company to dispatch a tow truck to the appropriate location. (3) A peace officer shall communicate with the public safety communications division, who shall summon a towing company from the appropriate rotation list to provide towing services if: a. the vehicle owner does not designate a towing company to perform towing services; or b. the towing company selected by the vehicle owner fails to arrive at the scene within the time period specified in subsection 102- 174(a). A city official shall communicate with the public safety communications division, who shall summon a towing company from the appropriate rotation list to provide towing services if an abandoned or junked vehicle as defined in section 34 -91 of this code is seized by a city official pursuant to a court order. (4) Upon the arrival of the tow truck from the towing company requested pursuant to subsection (2) above at the location. the tow truck operator shall request the vehicle owner to complete a tow truck ticket form designating the towing company that the vehicle owner desires to remove such vehicle. The vehicle owner shall sign the tow truck ticket form. The tow truck operator shall give a copy of the form to the vehicle owner and shall retain the original thereof. (5) If the owner of the vehicle is unable or unwilling to sign the tow truck ticket, or if the peace officer has requested a nonconsent tow, the tow truck operator shall complete a tow ticket form and note any refusal or inability to sign for consent tows. The tow truck operator shall give a copy of the completed form to the city official at the scene and shall retain the original. (6) It shall be unlaxv-Ful for a tow truck company to use it tow truck for towing services pursuant to this article without completing a tow truck ticket form. (b) Content. The chief of police shall cause a tow truck ticket form to be prepared which shall contain: (1) The name, address. and permit number of the towing company issued by the Texas Department of Licensing and Regulation: (2) The name and license number issued by the Texas Department of Licensing and Regulation of the tow truck operator: (3) The name and address of the driver of the towed vehicle: (4) The make, model. and vehicle identification number of the vehicle being towed: (5) The date, time and location of tow: (6) Total amount charged for towing: (7) Location to where vehicle is towed: (8) Storage rate per day: (9) Description of all personal property within the disabled automobile at the time of its removal: (10) A statement by the vehicle owner either: a. Designating in blank spaces therein both: The towing company that the vehicle owner desires to employ to remove the vehicle. and The place to which the vehicle owner desires such vehicle to be removed; or b. Declaring that the vehicle owner has no preference as to which towing company to employ and designating in blank spaces therein the place to which the vehicle owner desires such vehicle to be removed; (11) Police department case number. if applicable; and (12) A space for the signature of the vehicle owner or city official requesting the nonconsent tow, whichever is applicable. Sec. 102 -170. Influence by city officials as to selection of tow truck prohibited. No city official shall. directly or indirectly. either by word. gesture. sign or otherwise, recommend to any person the name of any particular person engaged in the tow truck service or repair business; nor shall any such city official influence or attempt to influence in any manner the decision of any person in choosing or selecting tow truck or repair service. Sec. 102 -171. Impoundment of vehicles. A city official may direct that any vehicle towed, whether consent or nonconsent, be taken by the tow truck operator towing the vehicle directly to the city pound or other place of storage designated by the city, and there be held by the city for inspection or investigation. Sec. 102 -172. Towing company records. (a) Afaintenance of records. Each towing company on either of the city's rotation lists shall maintain at its garage or storage location. records as to all vehicles towed in accordance with the provisions of this article. The records required to be kept by the each towing company on either of the city's rotation lists shall include the towing information form as described in subsection 102- 169(b). The towing company shall preserve the records for 12 months from the date the towed vehicle is released from the possession of the towing company. (b) Records available to city. The records required to be maintained in accordance with the provisions of this section shall be made available to city officials by the towing company between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday, except on nationally recognized holidays. Sec. 102 -173. Lien for towage and storage fees. (a) When a vehicle has been towed and placed in storage, the towing company who performed the tow shall be required to notify the last -known registered owner and all lien holders of record of the vehicle that the vehicle has been towed and stored. Such notice must conform to the notice requirements of state law. (b) The vehicle storage facility that provides notice of the possession of the vehicle to the owner in accordance with the provisions of state law must also provide to the police chief a copy of the certified, return receipt requested, letter of notice sent to the owner and a copy of the certification paper received by the vehicle storage facility from the post office after delivery of the certified notice. Sec. 102 -171. Duty of tow truck operator. (a) A towing company who has been called from a rotation list to tow a vehicle shall arrive at the location within 30 minutes after the time the towing company or its representative was contacted and notified by the public safety communication division of the tow and location. (b) It shall be the duty of the towing company responding to a consent or nonconsent tow to clean up and remove the debris as directed by the city official. DIVISION 3. PERMIT Sec. 102 -196. Application. (a) Any tow truck company that desires to be placed on the heavy -duty or regular rotation list, as provided in division 2 of this article. shall apply to the city clerk for a tow truck permit. (b) A towing company must submit the follo%ving information on its tow truck permit application: (1) The name and address of the owner and the name and address of the towing company: (2) A copy of the incident management towing permit issued by the state commission of licensing and regulation for each tow truck to be operated by the towing company for nonconsent tows; (3) The amount of parking available_ i.e., space to keep cars and tow trucks of the street; (4) The make, model and type of vehicle(s) to be operated by the towing company for nonconsent tows, (5) Whether the vehicles) shall be operated by the owner or his employee with a bona tide employer - employee relationship, together with a copy of the owner's or employee's incident management towing operator's license issued by the state commission of licensing and regulation: (6) Whether the applicant proposes to own. rent or lease the vehicles) to be used: 8 (7) Proof that the applicant has a storage facility within the corporate city limits of the city, which is licensed by state law suitable for the protection of stored vehicles and fenced as required by city ordinance: (8) Proof of insurance coverage as required in the tow agreement and state law: (9) Proof that the vehicle(s) have undergone and passed an inspection performed by the chief of police within the two -month period immediately preceding the application for proper equipment required to be on each tow truck as stated in this division and in the tow agreement: (10) Proof that the storage lot to be used by the applicant is currently licensed as an automobile storage lot under the applicable statutes and regulations, including a copy of the vehicle storage facility license issued by the state commission of licensing and regulation: (1 1) a copy of the cab card issued by the state commission of licensing and regulation for each tow truck to be operated by the towing company: and (12) A completed tow agreement executed by the towing company. Sec. 102 -197. Fees. (a) Application fee. The annual tow truck permit application fee of $15.00 shall be submitted with the application. There shall be no proration of fees. (b) Inspection fee. For each tow truck operating under a single tow truck permit. an additional fee of $50.00 shall be charged for inspection of each tow truck for proper equipment. There shall be no proration of fees. (c) Fees due. All application and inspection fees shall be remitted at the time of submission of the permit application. Sec. 102 -198. Issuance. (a) Subject to subsections (c) and (d) hereof, all tow truck permits shall be issued by the city clerk upon the submission of a completed application, an executed tow agreement and the successful inspection of the tow truck by the chief of police. (b) A copy of the applicable rotation list shall be issued to all towing companies on such list. (c) Tow truck permits shall expire on December 31 of each year. Following approval by annual inspection and the payment of the annual tow truck permit fee, the approved towing company shall be placed on the applicable rotation list for that year. If the tow truck is inspected after October 31 and successfully passes the same, such tow truck shall not be subject to the inspection requirement of this article for the issuance of permit for the following year. (d) If a tow truck permit has been suspended during the permit year, issuance of a new permit will be reviewed by the tow truck committee during December of such year. The awarding of such permit shall be denied if the committee determines that the health. general public safety and welfare of the citizens of the city demand such a result. See. 102 -199. Transferability. A towing company's tow truck permit shall be personal to the permittee and shall not be transferable. See. 102 -200. Suspension. (a) The tow truck committee may revoke or suspend in accordance with section 102 -138 for up to one year a towing company's tow truck permit for any of the following reasons: (1) Violation of any of the laws of the state. federal or city government; commission of an offense as defined by this article; or violation of any of the terms of this article or the city tow agreement by a towing company. its agents or employees. (2) Failure of a towing company to meet the requirements as set forth in its application for a tow truck permit. (3) Failure to abide by any of the terms of the tow agreement. (4) Towing of a vehicle to an automobile storage lot not licensed by the state as an automobile storage lot. unless the tow truck operator was directed by the owner or operator of the towed vehicle to tow the vehicle to such unlicensed location. (b) As used in this subsection. a "pass" shall be defined as when the public safety communications division telephones a towing company on the rotation list to perform a nonconsent tow and is unable to contact the towing company or the towing company refuses or declines to accept the telephone call or the towing company refuses to accept the tow. The towing company shall be entitled to two passes during a calendar month. In the event the towing company passes three or more times during a calendar month, the towing company shall be subject to suspension from the rotation list for a period deemed appropriate by the tow truck committee. Section 3: That the Tow Agreement, which is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. shall be the standard tow agreement which shall be executed by the tow truck owners and the city as applicable pursuant to Article III "Tow Trucks" of Chapter 102 "Vehicles for }-lire" of the Code of Ordinances of the City of Baytown, Texas. as adopted in Section 2 hereof. Section 4: Any person who fails to comply with any provision of this ordinance shall be guilty of a misdemeanor and, upon conviction, shall be punished by a tine not exceeding FIVE HUNDRED AND NO /100 DOLLARS ($500.00). Each act of violation and each day upon which any such violation shall occur shall constitute a separate offense. In addition to the penalty prescribed above, the city may pursue other remedies such as abatement of nuisances, injunctive relief, administrative adjudication and revocation of licenses or permits. 10 Section 5: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are hereby repealed; provided, however, that such repeal shall be only to the extent of such inconsistency and in all other respects this ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered by this ordinance. Section 6: If any provision. section, exception. subsection, paragraph. sentence. clause or phrase of the ordinance or the application of same to any person or the set of circumstances, shall for any reason be held unconstitutional, void or invalid, such invalidity shall not effect the validity of the remaining provisions of this ordinance or their application to other persons or sets of circumstances and to this end all provisions of this ordinance are declared to be severable. Section 7: This ordinance shall take effect from and after ten (10) days from its passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing the caption of this ordinance to be published in the official newspaper of the City of Baytown at least twice within ten (10) days after the passage of this ordinance. INTRODUCED. READ. AND PASSED by the affirmative vote of t ity Council of Baytown. this the I I `h day of December, 2008. S, Mayor ATTES J� ID EL . City Clerk .V ED AS TO FORM: ACIO RAMIREZ, Sr.nsy Attorney \\cobsry l\ Legal\ Karen\ Files \City Council\Ordinances\2008 \December 1 lkowordinanceschanges.doc Exhibit "A" TO`V ACREENIENT (RECULAI2 U"- FATION) THE STATE OF TEXAS § COUNTY OF HARRIS § This Tow Agreement (the "Agreement ") is made and entered into by and between the City of Baytown, Texas, a municipal corporation principally situated in I- larris County (the "City"), and the Operator identified below. WHEREAS, Chapter 102 of the Code of Ordinances, Baytown, Texas, authorizes the City of Baytown, upon recommendation of its City Clerk_ to enter into an agreement with the owner of any tow truck operating within the City of Baytown who holds a tow truck permit issued pursuant to the Code of Ordinances and an incident management towing permit issued by the "texas Department of Licensing and Regulation. hereinafter the -Act," to perform "Non - Consent Tows' within the meaning of § 102-136 of the Code of Ordinances: and WHEREAS, the Operator, identified below. holds an incident management towing license issued by the Texas Commission of Licensing and Regulation and a City tow truck permit for the tow truck identified below, true copies of which permit and registration are attached to and made a part of this Agreement as Exhibits "A" and "B:" and WI IEREAS_ the Operator desires to perform non- consent tows for the City: NOW THEREFORE. KNOW ALL MEN BY THESE PRESENTS, that in consideration Of the premises and the covenants hereinafter set forth_ the City of Baytown and the Operator have mutually agreed as follows: 1.01 number truck." I. Identity of Tow Truck Operator The tow truck that may perform non - consent tows under this Agreement is a (model, year, and make), which has the following VIN (VIN number), and is hereinafter referred to as the "tow 1.02 The "Operator" who owns the tow truck is The Operator is: (Check one, as applicable) a. [ ] a proprietorship. C. [ ] a limited partnership- (Name of Owner). b. [ j a partnership. d. [ ] it corporation. Evidence of the ownership of the tow truck is attached to arid made a part of this Agreement as Exhibit "C." (Attach true copy of the vehicle title or lease contract under which the [ow truck is operated. Also attach a copy of [ 1] assumed name certificate if a proprietorship. [2] Iron- Consent Tow Agreement 12-11-2008 partnership agreement disclosing the names of all general or limited partners at the time of this agreement if a partnership. or [3] a copy of the articles of incorporation and certificate from the corporate secretary setting forth the names of all persons owning ten percent (10 %) or more of the outstanding stock at the time of this agreement if a corporation). II. Tow Truck Operations 2.01 The Operator represents that he is familiar with the provisions of Article III of Chapter 102 of the Code of Ordinances, Baytown, Texas. as amended, which provisions are hereby incorporated into and made a part of this Agreement by reference. The Operator agrees to comply with said provisions and the other terms and conditions of this Agreement in the operation of the tow truck. The Operator also agrees that he and his officers, agents and employees will comply with all state and local laws, rules and regulations applicable to the operation of the tow truck. It is expressly understood and agreed that any amendments hereafter adopted by the City Council of the City of Baytown. Texas, to the aforesaid Article III of Chapter 102 of the Code of Ordinances or other laws that are applicable will become part of this Agreement by reference upon their effective date. It shall be the obligation of the Operator to take notice of such amendments by virtue of their adoption, and the City shall not be obligated to provide any personal notice of such amendments to the Operator. 2.02 Operator agrees to provide towing service on a twenty -four hours per day basis, without prejudice to ability to pay by the owner or operator of the towed motor vehicle. The Operator shall be required to be open to the public for release of motor vehicles as required under the Texas Vehicle Storage Facility Act and regulations thereunder. A violation of this provision may result in cancellation of the Agreement pursuant to the provisions of this Agreement. 2.03 The Operator further agrees that he will perform non - consent tows in consideration of a fee in an amount established from time to time by the City Council of the City of Baytown. At the time of execution of this Agreement, the Operator understands and agrees that it shall not charge more than the following fees for towing services: a. A tow from the regular rotation list is defined as picking up the vehicle or moving and towing the vehicle from the scene to the place of business of the tow truck company, to the storage facility of the tow truck company. which is located within the area described in §2.06, or to any other location within the city limits of Baytown. There will be no additional charges to disengage one vehicle from another, as this will be considered part of a normal tow when the vehicles are moved from the street. The standard charge for a tow initiated from the regular rotation list as described hereinabove of a vehicle including a motorcycle shall not exceed ONE HUNDRED AND FIFTY AND NO /100 DOLLARS ($150.00). This charge shall apply day or night, holidays or Sundays. b. If the owner /operator of the vehicle being towed specifies at the scene of the accident that the vehicle is to be towed to a place of business within the city limits Non- Consent Tow Agreement 12-11-2008 2 of Baytown which at that time is not open for business or has no one on duty to receive the wrecked vehicle or if the owner /operator of the vehicle being towed requires the vehicle to be moved or transferred and no location had been specified by him at the scene of the accident, there may be an additional charge not to exceed SIXTY -FIVE AND NO /100 DOLLARS ($65.00) for transferring the vehicle to the specified location within the city limits of Baytown as soon as that place of business is open for business or is later specified by the owner /operator of the vehicle being towed. This charge shall apply day or night. holidays or Sundays. The maximum charge for any and all tows from the scene of an accident in the city limits shall be TWO HUNDRED FIFTEEN AND NO /100 DOLLARS ($215.00). d. A charge of TWENTY AND NO/] 00 DOLLARS ($20.00) per day may be made for the storage of vehicles not longer than 25 feet and THIRTY -FIVE AND NO /100 DOLLARS ($35.00) per day may be made for the storage of vehicles longer than 25 feet. Such fee may be charged for a day regardless of whether the vehicle is stored for twenty -four (24) hours of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the vehicle storage facility less than twelve (12) hours. A "day" shall begin and end at midnight. No charge may be assessed for moving a vehicle within a storage area. f. Should the owner /operator of the vehicle being towed specify at the scene of the accident that the vehicle is to be towed to a place of business or other location which is not within the city limits of Baytown, the Operator, except as otherwise provided in this subsection. may not tow the vehicle until the owner /operator of the vehicle being towed and the Operator have negotiated in writing signed by both parties an agreed upon fee for the towing services. If the Operator tows the vehicle outside the city limits of Baytown without agreeing upon a fee with the owner /operator prior to the tow. the Operator may charge no more than the maximum fee specified in subsection (c) hereinabove. If the owner /operator and the Operator are unable to agree upon a fee for towing services outside the city limits of Baytown. the Operator may tow the vehicle to the place of business of the tow truck company. to the storage facility of the tow truck company, which is located within the city limits of Baytown or to a location in the city limits as designated by the owner /operator of the vehicle. g. The Operator shall be responsible for each vehicle and its contents while in its care. custody and control. h. The Operator understands and agrees that should it fail to respond when requested within the required time or is unable to perform the tow for any reason, the City may contact another towing service. to tow the subject vehicle. Non- Consent Tow Agreement 12 -11 -2008 An operator towing a vehicle impounded for driving under the influence of alcohol or drugs shall be released without charge if the driver is later released without charges. 2.04 Operator understands and agrees that any party believing that an overcharge has occurred for towing service provided pursuant to this Agreement may, on or before thirty (30) days from the date of such overcharge. notify the tow truck company of such overcharge. Such notice shall be in writing forwarded to the address of the tow truck company as reflected in the records of the City Clerk by registered or certified mail. return receipt requested. Such notice shall be deemed received five (5) days after the date of mailing. Within fifteen (15) days of receipt of such notice, said tow truck company shall refund the overcharge or deny the overcharge. Such denial shall be in writing specifying the justification for the charges contested. A copy of the denial and of the overcharge complaint shall be delivered to the City Clerk and the complainant by registered or certified mail, return receipt requested. Such overcharge claim and denial shall be referred to the tow truck committee for determination at its next meeting. 2.05 No vehicle shall be towed hereunder except upon written authorization of a city official in the form required under Article III of Chapter 102 of the Code of Ordinances, Baytown, Texas. 2.06 Operator hereby warrants that he has a storage facility within the corporate limits of the City of Baytown, which is licensed by state law as suitable for the protection of stored vehicles and fenced as required by city ordinance. 2.07 Operator further understands and agrees that throughout the term of this Agreement, he shall not become indebted to the city for any delinquent taxes levied. 2.08 The City of Baytown hereby designates the Operator identified in §1.02 above to perform "Non- Consent Tows" with the tow truck identified in § 1.01 within the meaning of that term as defined in Article III of Chapter 102 of the Code of Ordinances, Baytown. Texas. It is expressly understood that this Agreement does not constitute any promise or obligation by the City to cause any vehicle to be towed by the Operator. III. Term 3.01 The term of the Agreement shall commence upon the date of the signature by the City Manager and end on December 31, 2009, unless sooner terminated in accordance with §3.02, 3.03, 3.04. 3.05, 4.02, or 8.01. 3.02 The Operator may terminate this Agreement, without cause, upon thirty (30) days' written notice to the City of Baytown. 3.03 The City may terminate this Agreement, without cause. upon thirty (30) days' written notice to the Operator. Non- Consent Tow Agreement 12-11-2008 4 3.04 In the event the tow truck committee, a city official, or the city clerk has reason to believe that the Operator has failed to timely or fully perform any obligation assumed under this Agreement. the city manager may upon recommendation of the tow truck committee terminate this Agreement, in whole or in part, or suspend for up to one year the Operator's permit for any of the following reasons: a. Violation of any of the laws of the state, federal or city government, commission of an offense as defined by Article III of Chapter 102 of the Code of Ordinances or violation of any of the terms or provisions of this Agreement by a tow truck company, its agent, employee or owner: b. Failure of a tow truck company to meet the requirements as set forth in its application for a tow truck permit: c. Removal of a vehicle regulated by this Agreement to an unapproved storage location or outside the corporate limits of the City of Baytown, except upon the informed request of the owner /operator of such vehicle or the direction of the city official in charge of the towing scene: d. Failure to arrive at the dispatched location within a reasonable time not to exceed thirty (30) minutes after being dispatched by the Communications Department: e. Failure of a tow truck company to have its name permanently displayed on both doors of the tow truck identified in 51.01 herein. The name shall be clearly visible and be written in letters at least four (4) inches in height: or f. Failure of the tow truck company. its owner and /or employees to provide satisfactory general services or to conduct itself in a reasonable manner. Any person shall have the right to appeal any decision of* the tow truck committee to the City Council as provided in Article III of Chapter 102 of the Code of Ordinances Baytown, Texas. 3.05 In the event of the termination. suspension. or cancellation of the Operator's tow truck registration issued pursuant to the Act, or the Operator's tow truck permit issued under Article III of Chapter 102 of the Code of Ordinances, this Agreement shall be terminated contemporaneously therewith and without notice, IV. State Regulation 4.01 To the extent of any difference in terms between any valid and applicable provision of the Act or any rule or regulation adopted thereunder from time to time by the Texas Department of Safety or other federal or state agencies and the terms and provisions of this Agreement, the Dion- Consent Tow Agreement 12-1 1-2008 more restrictive shall apply. However. no provision of this Agreement shall be construed to obligate the Operator to violate the Act or any valid and applicable rule or regulation adopted thereunder. 4.02 The Operator and the City acknowledge that they are not aware of any situation in which compliance with this Agreement will cause the Operator to violate the Act or any rule or regulation adopted thereunder. In the event that such a situation should arise, the Operator shall discontinue operations hereunder and notify the City Clerk thereof in writing; the giving of such notice shall terminate this Agreement unless it is revived and amended by mutual written agreement of the City and the Operator. V. Indemnity THE OPERATOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR DAMAGE TO ANY PROPERTY, LOSS OF REVENUE, OR ANY OTHER INJURIES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PERFORMED BY THE OPERATOR PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF THE OPERATOR'S ACTIVITIES, OR FROM ANY ACT OR OMISSION BY THE OPERATOR, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHERE SUCH DAMAGES, LOSSES OR INJURIES ARE CAUSED BY (I) THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY OR (II) THE JOINT OR SOLE NEGLIGENCE OF THE OPERATOR. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE OPERATOR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE OPERATOR TO INDEMNIFY AND PROTECT THE CITY FROM (I) THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND /OR (II) THE CONSEQUENCES OF THE OPERATOR'S SOLE OR JOINT NEGLIGENCE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO THE CITY FOR ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, LOSS OR DAMAGE RESULTS FROM THE SOLE Non - Consent Tow Agreement 12 -11 -2008 6 NEGLIGENCE OF THE CITY, UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. In the event that any action or proceeding is brought against the City by reason of any matter from which the City is indemnified herein, the Operator further agrees and covenants to defend the action or proceeding by legal counsel acceptable to the City. This article shall survive the expiration or termination of this Agreement. VI. Insurance 6.01 The Operator shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the services provided hereunder by the Operator, its agents, representatives, volunteers, employees or subcontractors. 6.02 The Operators insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self - insurance maintained by the City, its officials, employees or agents shall be considered in excess of the Operator's insurance and shall not contribute to it. Further. the Operator shall include all subcontractors. agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subcontractors and assigns shall be subject to all of the requirements stated herein. 6.03 The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: a. Business Automobile Liability Policy ❑ Limit: $500.000 ❑ All insurance policies or certificates of insurance must show the year, make and model; state license number and vehicle identification number of all tow trucks authorized by the City to operate. ❑ All drivers of tow trucks shall be named insured on the Operator's liability insurance policy. ❑ Coverage for "Any Auto." b. Garagekeepers Direct Primary: I Not more than 50 vehicles: $ 9,000 ❑ 51 to 99 vehicles: $18.000 ❑ 100 or more vehicles $25.000 Non - Consent Tow Agreement 12 -11 -2008 c. Cargo on Hook Coverage ❑ Light/Medium Trucks: $ 50,000 per vehicle. ❑ Heavy Trucks: $100,000 per vehicle. 6.04 The following shall be applicable to all policies of insurance required herein. a. Insurance carrier must have an A.M. Best Rating of B +:VI or better. b. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. C. Liability policies must be on occurrence form. d. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided. canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail. return receipt requested. has been given to the City. e. The City, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein. f. Upon request and without cost to the City, certified copies of all insurance policies and /or certificates of insurance shall be furnished to the City. g. Upon request and without cost to the City. loss runs (claims listing) of any and /or all insurance coverages shall be furnished to the City. h. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City, and shall be carried in the name of the Operator. The Operator shall provide copies of insurance policies required hereunder to the City upon request. VII. ?notices 7.01 Any notice that is required or permitted to be given by the City to the Operator hereunder may be mailed to the operator by certified U.S. Mail, return receipt requested, postage prepaid, addressed to: Non - Consent Tow Agreement 12 -11 -2008 8 or may be given by personal delivery to the Operator or any of his agents or employees at the following local address: 7.02 Any notice that is required or permitted to be given by the Operator to the City hereunder may be mailed to the City by certified U.S. Mail, return receipt requested, postage prepaid, addressed to: City of Baytown Attention: City Clerk P.O. Box 424 Baytown. Texas 77522 or may be given by personal delivery to: City of Baytown Attention: City Clerk 2401 Market Street Baytown. TX 77520 7.03 Notices mailed as above shall be deemed given on the third regular postal delivery day after the date of their deposit in the U.S. Mail. Notice delivered by personal delivery shall be deemed given upon their delivery. 7.04 Either party may change its address for notice upon written notice to the other party hereto. Vlll. General 8.01 The rights herein granted to the Operator and the obligation herein assumed by the Operator shall be personal to the Operator and shall only apply to the tow truck identified in Article I, above. This Agreement shall terminate upon any attempted assignment, subcontract, lease or other subletting of any obligation assumed hereunder unless the City Clerk has given prior written approval thereof. This Agreement shall also terminate upon any attempted sale of the tow truck or any interest therein (including, but not limited to. the conveyance of any partnership interest. if a partnership. or cumulative transfer of ten percent (10%) or more of the outstanding stock. if a corporation), unless the City Clerk has given prior written approval therefor. Non - Consent Tow Agreement 12 -11 -2008 9 8.02 This instrument inclusive of the documents incorporated herein by reference or as exhibits hereto, constitutes the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed, and it may be arnended only by instrument of equal dignity hereto executed by both parties. 8.03 This Agreement shall be construed in accordance with the laws of the State of Texas and the Charter and Ordinances of the City. 8.04 All obligations hereunder shall be performed in the City of Baytown. 8.05 The Operator agrees not to employ or allow any person to continue to be employed as an agent or employee upon or in any connection with the tow truck who has been either: an operator of a tow truck whose tow agreement with the City has been terminated for cause within the five (5) year period preceding the effective date of this Agreement, or b. the agent or employee of the operator described in subsection (a) who caused in whole or in part a tow agreement with the City to be terminated for cause within the preceding five (5) year period. 8.06 It is expressly understood and agreed that a suspension or termination for cause under this Agreement that has occurred under this Agreement shall apply equally to any and all other Tow Agreements held by the Operator. A suspension or termination hereunder shall not affect the operator's right to utilize the tow truck for any other lawful purpose for which the Operator still holds current and valid permits or licenses, as required by law. 8.07 It is expressly understood and agreed that in all instances involving a vehicle towed upon authority of a city official, the Operator or his employee or agent, must deliver the vehicle to the place designated on the towing ticket. 8.08 Operator acknowledges and understands that the City shall not be obligated to pay any fees for the purpose of this Agreement. The only considerations Operator shall receive are the fees it may collect from the storage facility accepting the vehicle for storage or the vehicle owner /operator. 8.09 The Police Chief may issue rules and regulations governing the operation of tow trucks while performing tows. A copy of the rules and regulations shall be provided to each Agreement holder at his last known address. Compliance with the rules and regulations is a condition of this Agreement. Non - Consent Tow Agreement 12 -11 -2008 10 Executed in duplicate counterparts, each having the force and effect of the original on this the day of .20—. OPERATOR By: (Print or type name) (Title) CITY OF BAYTOWN By: Garrison C. Brumback, City Manager THE STATE OF TEXAS § COUNTY OF HARRIS § ATTEST (if a corporation) (Print or type name) (Title) ATTEST Kaythie Darnell, City Clerk BEFORE NIE, the undersigned notary public, on this day personally appeared in his /her capacity as of . on behalf of such (corporation, partnership. proprietorship, limited partnership, company) (check one of the following.) known to me; proved to me on the oath of ; or proved to me through his /her current (description of identification card or other document issued by federal government or any state government that contains the photograph and signature of the acknowledging person To be the person whose name is subscribed to the foregoing instrument. and acknowledged to me that he /she executed that instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of .20 (Seal) Notary Public in and for the State of Texas Non - Consent Tow Agreement 12-11-2008 RULES AND REGULATIONS GOVERNING TOW TRUCKS I. SPECIFICATIONS AND REQUIRED EQUIPMENT All tow trucks, heavy duty tow trucks, and emergency tow trucks shall be provided with the following minimum equipment which equipment shall be adequate for the purpose(s) for which it is designed and shall further be kept in usable condition at all times: A. One fire extinguisher that is properly filled and located so that it is readily accessible for use. The fire extinguisher must be securely mounted on the vehicle. It must be designed. constructed, and maintained so as to permit visual determination of whether it is fully charged. The fire extinguisher must not have an extinguishing agent that gives off vapor more toxic than those produced by the substances shown as having a toxicity rating of 5 or 6 in the Underwriters Laboratories Classification of Comparative Life Hazard of Gases and Vapors. Such fire extinguisher must have an Underwriters Laboratory rating of #5 ABC or more. Each fire extinguisher required by this section must be labeled or marked with Underwriters Laboratories rating. B. Three (3) flares or three (3) red electric lanterns or three (3) portable red emergency reflectors, each of which shall be capable of being seen and distinguished at a distance of not less than six hundred feet (600') under normal atmospheric conditions at nighttime. No flare. fuse, electric lantern, or warning flag shall be used for the purpose of compliance with the requirements of this section unless such equipment has been approved by the Texas Department of Public Safety. C. If a tow truck is equipped with a tow bar. it shall have a rubber covering which covering shall be one inch in thickness and cover the entire bridle. The tow bar is a part of the tow truck and is used to hold a vehicle which has been elevated for towing in a rigid position and to prevent swinging of such raised vehicle as it is being towed. When a vehicle is being towed, the bar shall be in place to prevent Non - Consent Tow Agreement 12-11-2008 swinging. A pliable non - scuffing sling may be used in lieu of the above- described tow bars. D. Broom, shovel, and sand box: All tow truck operators must clean up all debris and oil at the scene of an accident. The tow truck operator must carry all debris away. Every tow truck eligible to be summoned to an accident shall carry the above equipment at all times. E. Tow trucks must be equipped with dolly wheels (heavy duty tow truck and rollbacks excluded). All tow trucks must be equipped with dual rear wheels and heavy -duty tow trucks and rollbacks are required to have tandem rear dual wheels. F. Permit holders will have the name of holder (company name) permanently attached to both doors. This shall be in letters not less than four inches (4 ") in height. Each tow truck company will display the permit number on the upper center portion of the windshield or other location on the windshield as determined by the designated employee of the city garage. These numbers will be attached to a transparent sticker and furnished by the designated employee of the city garage. I1. DISPATCHING OF TOW TRUCKS: A. Tow trucks will not go to the scene of the dispatched tow within the city limits of Baytown unless dispatched by the City's Communication Center. The tow truck operator will take the vehicle to the place designated by the owner of the vehicle or the city official. If the owner is incapacitated. the tow truck operator will move the vehicle to his storage facility and store safely until advised by the owner or his agent where repairs are to be made. 1. Stolen vehicles. vehicles with holds placed by a peace officer, and prisoner's vehicles will be taken to the tow truck operator's storage Non - Consent Tow Agreement 12-11-2008 2 facility unless directed by a police officer to take the vehicle to the Police Pound located at 3200 North Main. Note: When a vehicle is brought to the Police Pound. the tow truck company must have a City of Baytown Police Department tow truck slip filled out and must present the keys to the desk officer. B. No tow truck will be allowed to load any vehicle at the scene of dispatched location for tow within the City of Baytown if said tow truck arrives at the scene later than thirty (30) minutes from the time dispatched. The tow truck that is late will be placed at the bottom of the rotation list, and the next tow truck on the top will be called. There shall be an exception to this section when, in the opinion of the police duty supervisor. it appears that the conditions would not allow compliance within the time limitations. C. No permit holder will be allowed to load a vehicle at in a tow truck other than one permitted to the company dispatched to the scene. No sharing of tow trucks will be permitted. 1lcobsry 111- cga llKarenlFiles\ContractsNPolice- Initiated Tow AgrecmentMw Agreement(Regular Rotation)Revised 12052008.doc Non- Consent Tow Agreement 12-11-2008 3