It is the intent of this chapter to establish procedures applicable to the selection, franchising and operation of towing service companies that will provide official towing services to the Brea Police Department. The further intent of this chapter is to insure that such services are promptly and safely performed by responsible towing companies, at reasonable prices, and in the best interest of the public and efficient police operations.
(Ord. 1070, 6-1-2004)
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
"Chief of police."
The Chief of Police of the City of Brea, or designee thereof.
"Financial services director."
The Financial Services Director of the City of Brea, or designee thereof.
"Official police tow service."
A vehicle towing and storage company having a franchise with the City of Brea to provide official towing services. An "official police tow service" shall be used by the Brea Police Department for any situation where the Police Department requires the provision of official towing services.
"Official towing services."
Towing services, including the storage and impounding of vehicles, performed for and as required by the Brea Police Department.
"Storage yard attendant."
Any person who serves as a vehicle storage yard attendant for an official police tow service.
"Tow policy."
Collectively, the official vehicle towing and storage policy, rules and regulations governing the daily operations of each official police tow service, as established and amended from time to time by the Chief of Police following written notice to all official police tow services. The "tow policy" governs daily operations, establishes response times, and sets forth administrative procedures. It is provided to each official police tow service at the commencement of its franchise. The "tow policy," as the same may be amended from time to time, is incorporated herein by reference.
"Tow truck."
A tow truck as defined in Cal. Veh. Code § 615, and further includes any motor vehicle that has been altered or designed and equipped for, and used in the business of, towing vehicles by means of a crane, tow bar, tow line, flatbed, roll back, or dolly, or is otherwise exclusively used to render assistance to other vehicles.
"Tow truck operator."
Any person operating a tow truck for an official police tow service.
"Towing services."
The hook-up and towing of vehicles by tow truck, and may include storage of vehicles towed.
(Ord. 1070, 6-1-2004)
No towing service company or operator may provide official towing services unless such company or operator has been granted a franchise in accordance with the provisions of this chapter.
(Ord. 1070, 6-1-2004)
As a condition of being granted the privilege of providing official towing services, each official police tow service shall pay the city a franchise fee in such amount as may be set, from time to time, by resolution of the City Council. The franchise fee shall be payable monthly to the city during the term of the franchise.
(Ord. 1070, 6-1-2004)
On each anniversary of being granted a franchise hereunder, or upon request of the city, each official police tow service shall provide the Financial Services Director with a detailed income statement reflecting its provision of the official towing services and charges collected. Such statements shall provide such information, and shall be in such substance and format as may be established by the Financial Services Director and as may otherwise be required by the tow policy.
(Ord. 1070, 6-1-2004)
A. 
At least ninety (90) calendar days prior to the expiration date of an existing franchise, or whenever the Chief of Police determines that there is need and necessity for a new or additional official police tow service, the Chief of Police may request the Financial Services Director to send out a notice of request for proposals for the provision of official towing services. The form of the notice shall be approved by the Chief of Police. All proposals shall be reviewed by the Chief of Police who may select the most qualified towing company or companies to submit an application to become an official police tow service and receive a franchise pursuant to this chapter. In determining whether a towing company is qualified to submit an application, the Chief of Police shall be guided by his or her preliminary determination that, as proposed, the applicant and the applicant’s towing services will likely comply with the requirements set forth in this chapter as well as the established tow policy.
B. 
The Chief of Police shall investigate and take all steps necessary to verify all information included in the application, including whether or not the applicant and any other owners of the towing service satisfy the requirements of this chapter, and to determine the applicant’s ability to provide quality towing services in furtherance of the intent and purpose of this chapter. In the discretion of the Chief of Police, a hearing may be conducted concerning the granting of any franchise. If the Chief of Police finds that the applicant satisfies all such requirements, that grounds for denial do not exist, and it is in the best interest of the city, then the Chief of Police shall approve the application for a franchise. Otherwise the application shall be denied. The Chief of Police, in his or her discretion, and solely as an accommodation to a franchise applicant, may make the final grant of a franchise conditional upon satisfactory completion of all the background investigation provided, however, that such conditional franchisee shall be subject to all requirements of this chapter and the tow policy.
C. 
Prior to commencement of services as a franchisee, and as a condition of being granted a franchise hereunder, each official police tow service must agree in writing to be bound by and to comply with, throughout the term of the franchise, all provisions of this chapter, the tow policy, and any and all other applicable rules and regulations.
D. 
Each new franchisee shall be placed at the bottom of the current call priority list, as established by the Chief of Police provided, however, that if there are no existing franchises when any such new franchise or franchises are granted, then the Chief of Police shall establish the priority list by lottery which shall remain in effect unless and until revised as provided in this chapter and/or the tow policy. The number one (No. 1) ranked official police tow service shall receive all calls for service initiated and required by the Brea Police Department. In the event the No. 1 official police tow service is unable to respond within the required response time, the second official police tow service (i.e. ranked No. 2) shall be given the call. In the event the No. 2 official police tow service is unable to respond within the approved time, the No. 3 official police tow service shall be given the call. Throughout the term of the franchise, including any renewal periods, each official police tow service shall occupy the rank assigned unless and until re-ranked (up or down), suspended or removed from the priority list by revocation of a franchise, as provided herein. A separate, sequential rotation list shall be utilized for towing services requested by motorists through the Brea Police Department.
(Ord. 1070, 6-1-2004)
A franchise application or renewal application may be denied whenever the Chief of Police determines that:
A. 
The applicant has made a material misrepresentation in the application;
B. 
The applicant or any ten percent (10%) or greater owner has been convicted of a felony, misdemeanor in connection with the provision of towing services, or any crime constituting a form of theft or fraud in connection with any other services rendered to the public, within the previous ten (10) years;
C. 
The applicant does not, or is likely to not, comply with the requirements of this chapter including, but not limited to, requirements for tow trucks and equipment, or vehicle storage yards;
D. 
The applicant is unlikely to be able to provide official towing services on a consistent and uninterrupted basis, based upon the applicant’s history as a tow service operator, including, but not limited to, prior towing permit revocation or other disciplinary action, any adverse civil judgment or settlement, bankruptcy or any other relevant, verifiable facts bearing upon the likely ability of the applicant to consistently satisfy the requirements of this chapter throughout the term of a franchise.
(Ord. 1070, 6-1-2004)
A. 
Term. Each franchise granted pursuant to this chapter shall be non-exclusive and shall be for a term of no longer than four (4) years.
B. 
Maximum number of franchises. Nothing herein shall be deemed to limit the number of franchises in effect at any one time, and no provision of this chapter shall be deemed to require the granting of a franchise if the Chief of Police determines that such franchise grant is not in the best interest of the city and the public.
C. 
Maximum fee schedule. A uniform towing and storage fee schedule setting forth maximum fees shall be established by the Chief of Police. The fees shall be determined by computing the average towing and storage fees allowed by the California Highway Patrol for the Santa Ana region. The fees may be adjusted no more than once per year unless an adjustment to fees is approved more frequently by the CHP. No official police tow service shall charge more than the fees set forth in the fee schedule.
D. 
Fee disputes. Should there be any dispute between an official police tow service and a vehicle owner over rates, fees or charges imposed for official towing services rendered under this chapter, such dispute shall be decided by the Chief of Police, and the official police tow service shall make no demands upon the vehicle owner for a sum in excess of the amount determined to be reasonable by the Chief of Police. The Chief of Police may hold an administrative hearing on any such dispute, if any party to the dispute so requests, whereupon both parties shall be provided the opportunity to present evidence in support of their position. The decision of the Chief of Police in any such dispute shall be final.
E. 
Compliance with chapter. Following the grant of a franchise or conditional grant of a franchise, and as a condition of such grant, each official police tow service shall strictly comply with each and every provision of this chapter, the tow policy and any and all other laws, statutes and regulations applicable to the provision of official towing services to the Brea Police Department. Any failure to so comply shall be grounds for re-ranking, franchise suspension, or franchise revocation.
(Ord. 1070, 6-1-2004)
A. 
The form of franchise application required to be submitted pursuant to § 5.240.060 shall be a typewritten document requesting the granting of a franchise, and containing all information required to be provided pursuant to this section. It shall be accompanied by an application fee in such amount as may be established by resolution of the City Council, to defray all or part of the costs of investigation and processing of the application. The applicant shall sign at the end of the application, certifying under penalty of perjury under the laws of the State of California that the information provided therein is true and correct. The application shall include any information deemed necessary by the Chief of Police, including, but not limited to, detailed information concerning: (i) all persons who will be tow truck operators or storage yard attendants, and any and all persons or entities having any ownership interest in the towing service company seeking a franchise hereunder; (ii) equipment and property proposed to be utilized in the provision of official towing services; (iii) any other information necessary to determine whether or not the applicant will likely be able to comply with the tow policy; and (iv) the manner in which official towing services are to be provided. Any change in information required to be submitted as part of the application process must be reported to the Chief of Police within ten (10) business days of such change, or otherwise as required by this chapter or the towing policy.
B. 
Each applicant shall also provide its proposed schedule of fees, none of which may exceed the maximum fee permitted under this chapter. If the application is approved, the franchisee shall notify the Chief of Police of any change in this schedule at least thirty (30) calendar days in advance of the date the change is to become effective. No official police tow service shall charge more than the rates filed with the Chief of Police, unless and until sixty (60) or more days prior written notice of a fee increase has been filed with the Chief of Police.
C. 
Not later than ninety (90) days prior to the expiration date of its franchise, any franchisee in good standing may request renewal thereof. Each renewal applicant shall be required to verify that the information contained in the original application, as submitted, or as revised following notice to the Chief of Police as required herein, is true and correct. The Chief of Police shall be entitled to process the request for renewal in the same manner and subject to the same criteria as a new application, to the extent deemed necessary. Such processing may include, but is not limited to, conducting a complete background investigation. If the Chief of Police determines that grounds exist for denial of a new application, or revocation or suspension of the existing franchise, then the renewal application shall be denied. Otherwise the renewal application shall be approved or conditionally approved and the franchisee shall retain its current priority list ranking unless re-ranked as provided herein.
(Ord. 1070, 6-1-2004)
A. 
Review. The Chief of Police may, in his or her discretion, periodically review the performance and qualifications of any official police tow service franchisee to ensure compliance with all requirements of this chapter and the tow policy. In performing such review, the Chief of Police may request to be provided full, true and correct copies of any and all records required to be maintained by the franchisee, or to inspect the same on the franchisee’s premises, including, but not limited to, any and all citizen's complaints and/or records of response times.
B. 
Re-ranking. In the event any official police tow service fails to maintain compliance with any requirement of this chapter or the tow policy, such tow service may be re-ranked to a lower position on the priority list, depending upon the severity of the violation. In the case of a minor violation, the Chief of Police shall be authorized to provide a written warning to the official police tow service, together with a time by which such violation must be remedied. A failure to remedy a violation within a specified period may result in re-ranking, suspension or revocation. Procedures applicable to re-ranking and appeal thereof, shall be set forth in the tow policy.
C. 
Suspension and revocation. Where grounds exist, as set forth in this section, an official police tow service franchise may be suspended or revoked in accordance with the procedures set forth in the tow policy.
D. 
Notwithstanding any other provision hereof, the Chief of Police may immediately suspend a franchise and the official police tow service from the priority call list, pending a hearing, where deemed necessary in order to protect the public from an immediate threat of harm or risk of injury.
E. 
Any official police tow service that has its franchise revoked may not re-apply to be an official police tow service for at least six (6) months, unless otherwise provided as part of a decision following an appeal.
F. 
Grounds for revocation and suspension. A franchise may be suspended or revoked whenever the Chief of Police determines that an official police tow service, or owner or operator thereof has:
1. 
Violated or failed to comply with any provision of this chapter affecting the public health and safety, or has committed a substantial and severe violation of this chapter or any state or federal law, or has failed to cure any violation of this chapter following written notice;
2. 
Engaged in any activity, or has become subject to any governmental action or judicial or regulatory determination including, but not limited to, conviction of a crime, that would be grounds for denial of a franchise;
3. 
Failed to consistently maintain a satisfactory level of service to the Brea Police Department or the public, or has or otherwise is creating a risk of harm to the public health or safety in the provision of tow services;
4. 
Committed any fraud or deceit upon the city, including, without limitation, falsifying data and records relating to the provision of official towing services, including response times or the type or number of official towing services performed; or has otherwise engaged in dishonesty in connection with the franchise obligations;
5. 
Committed any fraud or deceit upon any person in connection with the provision of towing services;
6. 
Violated any order or ruling of any city official or regulatory body having jurisdiction over the official police tow service in connection with its provision of official towing services, unless such order or ruling is being validly appealed or contested by the tow service through legitimate proceedings conducted in good faith; or
7. 
Become insolvent, unable or unwilling to pay its debts and obligations, or is adjudged to be bankrupt, in connection with, or otherwise so as to adversely affect, the operation of the official police tow service.
(Ord. 1070, 6-1-2004)
Unless exempt by law, each official police tow service shall have and maintain a valid license to do business in the city at all times during the term of its franchise agreement.
(Ord. 1070, 6-1-2004)
A. 
No franchise granted hereunder, or any interest therein, may be assigned, sold, transferred, leased, mortgaged, encumbered or conveyed in any manner whatsoever, either in whole or in part, by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, without the prior written consent of the Chief of Police. Any request to transfer or assign the franchise must be in writing and must be submitted to the Chief of Police at least one hundred twenty (120) days prior to the proposed effective date of such sale, transfer, or assignment.
B. 
Upon receipt of a written request to assign or otherwise convey a franchise, together with an application for a new franchise and application fee, all as required of new franchise applicants, the Chief of Police shall process the application in the same manner as an application for a new franchise. The Chief of Police may approve or deny the request based upon the same criteria as applicable to new franchise applications.
C. 
The provisions of subsection A, above, shall apply to any change in control of a franchisee, as determined by the Chief of Police. The term "change in control" as used herein is not limited to a change in major stockholders or partners of the official police tow service, but also includes any change in actual working control in whatever manner exercised. In the event an official police tow service is, or is owned by, a corporation, prior written consent of the Chief of Police shall be required where ownership or control of more than forty-nine percent (49%) of the voting stock of the corporation is being sold or conveyed to non-owners or shareholders of the official police tow service. Nothing in this provision shall be construed to require the prior authorization of the Chief of Police where the only change in control is a transfer of the franchise to a wholly owned subsidiary of the franchisee.
D. 
Any attempt to sell, transfer, lease, assign, sublet, mortgage, or otherwise convey any or all of an official police tow service franchise, in violation of this chapter, shall be null and void and shall be grounds for revocation of its franchise.
(Ord. 1070, 6-1-2004)
Each official police tow service shall, at all times, have exclusively available, through ownership or lease, for the performance of its obligations under the towing franchise, the number and types of tow trucks, equipped with designated towing equipment, as specified in the tow policy. Furthermore, each official police tow service shall, at all times, have exclusively available, through ownership or lease, for the performance of its obligations under the towing franchise, one or more vehicle storage yards of such size and proximity to Brea Police Department facilities, and manned and equipped, as specified in the tow policy.
(Ord. 1070, 6-1-2004)
Each official police tow service shall procure and maintain throughout the term of its franchise, at its sole cost, policies of insurance in such amount and form as set forth in the tow policy and/or as required by the Chief of Police. Such insurance shall include, but is not limited to, auto liability insurance, premises liability insurance, insurance specifically applicable to towing operations, including the operation of vehicle storage yards and the protection of stored and impounded vehicles and their contents, and workers compensation insurance for the benefit of the tow service’s employees.
(Ord. 1070, 6-1-2004)
A. 
Each official police tow service shall, to the fullest extent permitted by law, indemnify, defend and hold the City of Brea, the City of Yorba Linda (for so long as the City of Brea provides law enforcement services to the City of Yorba Linda), and each of those cities’ elected officials, officers, agents, employees, and volunteers (collectively, “the indemnitees”), free and harmless with respect to any and all claims, demands, and/or liabilities of any nature, for damages due to death of or injury to any person, injury to property, or other loss of any nature, allegedly or actually arising out of or connected with the grant of the franchise, or the acts or omissions, whether or not negligent or intentional, of the official police tow service, or any owner, employee, agent, subcontractor or any other person or entity acting on behalf of or with the permission of the official police tow service. The indemnity obligation set forth herein shall include the payment of any and all attorneys’ and experts’ fees, and all costs of suit incurred by or on behalf of any of the indemnitees.
B. 
The City of Brea shall not be deemed to have waived any rights that it may possess against an official police tow service because of the acceptance by the city, or the deposit with the city, of any insurance policy or certificate required pursuant to this chapter. This indemnity provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense. The obligations of the official police tow service pursuant to this section will not be limited by the provisions of any workers compensation act or similar act. Each official police tow service is deemed to have waived any applicable statutory immunity, under any statute or law, as to all indemnitees. The indemnity obligations set forth in this section shall survive the expiration or revocation of the franchise to the maximum extent permitted by law.
(Ord. 1070, 6-1-2004)
A. 
An official police tow service’s failure to meet the average response time specified in the tow policy for any thirty (30) consecutive day period, or its failure to meet the maximum response time specified in the tow policy for any single request for tow service, will result in damage being sustained by the city. Such damages are, and will continue to be speculative and difficult to ascertain. Therefore, as a liquidated damage and not as a penalty, each official police tow service shall pay the city two hundred fifty dollars ($250) each time the tow service fails to meet the average response time requirements for any thirty (30) calendar day period, and one hundred dollars ($100) each time it exceeds the maximum response time requirement. Such amounts represent the minimum expense caused to the city for each described response time violation.
B. 
Written notice and an opportunity for a hearing shall be given to the official police tow service prior to the imposition of liquidated damages, as set forth in the tow policy.
C. 
The remedies set forth in this section pertaining to violations of response time requirements, are alternative to any other applicable remedies set forth in this chapter.
D. 
Acceptance of liquidated damages by the city on any occasion shall not be deemed to be a waiver of any subsequent violation by an official police tow service, nor shall acceptance of liquidated damages by the city preclude the Chief of Police from suspending or revoking a franchise as permitted herein for any subsequent violation.
(Ord. 1070, 6-1-2004)
A. 
Except as otherwise provided in this section, each towing service company providing official towing services to the City of Brea as of the effective date of this chapter shall:
1. 
Be deemed to be an official police tow service having a franchise for a term specified by the Chief of Police not exceeding four (4) years;
2. 
Maintain its ranking on the priority list as it existed upon that effective date; and
3. 
Be subject to all requirements of the chapter enacted hereby, including the payment of franchise fees.
B. 
Notwithstanding the foregoing, no towing service company currently providing official towing services shall be granted a franchise as provided in this section unless such company has submitted a franchise application that has been approved by the Chief of Police prior to this chapter becoming effective, or within such other time as he or she may specify.
(Ord. 1070, 6-1-2004)