Chapter 15.36

FRANCHISE FOR POLICE-GENERATED TOWS

Parts:

• 1 Definitions

• 2 General Provisions

• 3 Application for Franchise

• 4 Prerequisites to Effectiveness of Franchise

• 5 Franchise Conditions, Limitations and Regulations

• 6 Minimum Qualifications and Operation of Franchise

• 7 Franchise Fees and Records

Part 1

DEFINITIONS

• B. Upon failure of a state video franchise holder to commence, pursue or complete any work required by law or by the provisions of this chapter or by any franchise or franchise renewal to be done in any street, public place or public property within the time prescribed and to the satisfaction of the director, the director may, at his or her option, cause such work to be done, and the state video franchise holder shall pay to the city the costs thereof within thirty days after receipt of an itemized report of such costs from the director.

• (Ord. 28530.)

Sections:

• 15.36.020 Police-generated tows.

• 15.36.030 Police-impounded vehicle tows.

• 15.36.040 Police emergency tows.

• 15.36.050 VIN tows.

• 15.36.060 Abandoned vehicle tows.

• 15.36.070 Gross annual receipts.

• 15.36.080 Grantee.

• 15.36.090 Property of grantee.

• 15.36.100 Zones.

If at any time the city elects to alter, change the grade of or construct any street, alley or other public way, or any public property, the state video franchise holder, upon reasonable notice by the city, shall remove and relocate its structures, lines and

• 15.36.110 Towee.

• 15.36.120 Primary office facility.

For purposes of this Chapter 15.36, certain words, phrases and terms used in this chapter and

T15:204

PUBLIC UTILITIES

§ 15.36.110

hereinafter defined in this Part 1 shall be deemed to have the meanings specified in this part unless it is apparent from the text that a different meaning is intended.

(Ord. 20601.)

permitted under applicable state laws or municipal ordinances, and which vehicles have been tagged and marked for removal from public streets or property or from private property in accordance with law.

(Ord. 20601.)

"Police-generated tows" means tows requested by the police department in connection with official police business, and which tows may be of the following type: Police-impounded vehicles as defined in Section 15.36.030; police emergency tows as defined in Section 15.36.040; VIN tows as defined in Section 15.36.050; abandoned vehicle tows as defined in Section 15.36.060. (Ord. 20601.)

"Gross annual receipts" means any and all compensation received in connection with policegenerated tows from towing, storage, or dolly charges or fees, which said compensation is remitted or paid by the towee whose vehicle is towed pursuant to a police-generated tow.

(Ord. 20601.)

"Police-impounded vehicle tows" means tows of vehicles impounded by the police which said vehicles are held to be used as evidence in a criminal case, and which must be stored in the manner established by Section 15.36.650. (Ord. 20601.)

"Police emergency tows" means tows of vehicles involved in accidents, and/or stalled vehicles obstructing traffic, and/or tows of vehicles whose driver is incapacitated or physically unable to drive the vehicle, and/or tows of vehicles whose driver has been arrested and/or detained and cannot drive the vehicle.

(Ord. 20601.)

"VIN tows" means tows of vehicles necessitating special procedures to ascertain vehicle identification numbers in compliance with the requirements of California Vehicle Code Section 10751. (Ord. 20601.)

"Abandoned vehicle tows" means tows of vehicles left standing for a period of time greater than

"Grantee" means the person to whom or to which a franchise is granted by the council, pursuant to the provisions of this chapter, and the lawful successor or assignee thereof.

(Ord. 20601.)

"Property of grantee" means all property owned, installed or used by a grantee in the conduct of providing service to the police department for police-generated tows.

(Ord. 20601.)

"Zones" means the area in which the grantee is permitted to respond to police-generated tows pursuant to a franchise granted under the provisions of this chapter.

(Ord. 20601.)

"Towee" means the person whose vehicle is towed, stored, or otherwise serviced by a grantee pursuant to a police-generated tow. As used in this chapter, "towee" may also mean the driver or operator of the vehicle, the registered owner of the vehicle, and/or the person lawfully entitled to possession of the vehicle.

(Ord. 20601.)

T15:205

SAN JOSÉ CODE

§ 15.36.120

"Primary office facility" means a permanent office facility located at the primary storage lot of grantee, which said facility shall be open to the public Monday through Friday, from 8:30 a.m. to 5:30 p.m., and which said facility shall afford the public shelter during rain or bad weather, shall have sufficient space and furniture to accommodate the public, and which shall have a restroom and telephone available for public use. (Ord. 20601.)

Part 2

GENERAL PROVISIONS

Sections:

• 15.36.170 Franchise - Council authority to grant.

• B. The city, having heretofore (by the adoption of Section 200 of Article II of its Charter) elected to take advantage of the provisions of the 1914 amendment to Section 6 of Article XI of the Constitution of the state of California, giving cities home rule as to municipal affairs, and the granting of franchises of the character hereinafter referred to being within the classification "municipal affairs," hereby declares that the following, together with the provisions of said Charter, shall constitute the exclusive procedure applicable to the granting of franchises for the conducting of police-generated tows.

• C. Pursuant to the provisions of Section 200 of Article II of its Charter, the city hereby elects to have the granting of franchises governed by this chapter, and any ordinances amendatory thereof, together with the applicable provisions of its Charter, instead of by the general laws of the state.

• (Ord. 20601.)

• A. It is hereby declared and determined that the business of responding to police requests for towing or storage services, or mechanical services to render a vehicle driveable, or of assisting the police in the inspection of impounded vehicles in connection with criminal investigations, or performing other services required by the police in connection with official police business, all of which services may affect the owners, operators, and/or drivers of vehicles towed as a result of a police-generated tow in connection with official police business, is in the nature of a public service and, as such, should be regulated by the city. Also, the use of any public street or public property, or the use of the property of grantee in connection with official police business, is of great concern to the city and should be regulated by the city. It is the purpose of this chapter to provide such regulation.

• A. It shall be unlawful for any person to. provide any towing, storage, or related services in connection with police-generated tows unless:

  1. A franchise therefor has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect; or

  2. A written contract or agreement therefor has first been obtained from the city, and unless such contract or agreement is in full force and effect.

• (Ords. 20601, 22189.)

Whenever it deems such to be for the public good, the council, subject to other provisions of this chapter, may and is hereby empowered to grant by ordinance to any person, whether operating under an existing franchise or not, a nonexclusive franchise to operate and carry on the business of

T15:206

PUBLIC UTILITIES

§ 15.36.190

responding to police-generated tows, or requests for storage, or other ancillary services as necessary for official police business, whether said business is conducted in addition to towing or storage services requested by private individuals, or whether said business is conducted solely for the purpose of responding to police-generated towing, storage, or other vehicle-related services in connection with official police business. (Ord. 20601.)

• A. All franchises granted to persons for the purpose of responding to police requests for towing or storage services or other ancillary services as necessary for official police business shall be nonexclusive. No provisions of this chapter shall be deemed to require restricting the number of franchises to one or any particular number, and no provisions of this chapter shall be deemed to prohibit or prevent the council from refusing to grant any franchise or franchises if and whenever it finds or believes that the grant of any such franchise or franchises is not for the public good.

• B. All franchises shall be subject to terms and conditions specified in the Charter of the City of San José, and to terms and conditions specified in this chapter. Also, in granting any franchise, the council may prescribe such other and additional terms and conditions, not in conflict with said Charter or this chapter, whether governmental or contractual in character, as in the judgment of the council are in the public interest or as the people by initiative indicate they desire to have so imposed.

• (Ord. 20601.)

• A. The franchises granted pursuant to this chapter shall be of the following categories:

  1. Franchises granted for all types of policegenerated tows, whether consisting of po-

lice-impounded vehicle tows, police emergency tows, abandoned vehicle tows, or VIN tows.

2. Franchises granted for the conducting of VIN tows only.

3. Franchises granted for the conducting of police emergency tows police-impounded vehicle tows, and abandoned vehicle tows.

• B. Applicants shall specify, at the time of application, whether they are seeking a franchise of type 1, 2, or 3 above, and grantees shall be limited to the type of tows listed in the category of franchise specified in their applications. Grantees shall be required to accept the tow of any vehicle which fits within the category of franchise for which they applied.

• C. In the performance of police-generated tows, grantees of franchises of categories A1 and A3, above, shall be limited to operation in one zone only, unless said grantees meet the qualifications for a grant of franchise in each zone for which an application was made as required by Section 15.36.660 of this chapter and unless the council, in its discretion, granted franchises to conduct police-generated tows in more than one zone to said grantees; except that grantees may, on a temporary basis pursuant to an order of the chief of police, provide services in connection with police-generated tows in another zone when the franchise of the grantee or grantees for said other zone has been suspended or cancelled. Grantees of franchises for category A2, above, consisting of VIN tows only, shall not be limited to perform VIN tows within only one zone but shall provide VIN tow services for any area of the city regardless of zone.

• (Ord. 20601.)

Part 3

APPLICATION FOR FRANCHISE

Sections:

T15:207

SAN JOSÉ CODE

§ 15.36.200

• 15.36.220 Resolution giving notice of application and of time and place of hearing.

• 15.36.230 Hearing - Time - Notice publication.

• 15.36.250 Council decision - Criteria for consideration - Granting of franchise - Conditions.

All applications for franchises under the provisions of this chapter shall be in writing and shall be filed in the office of the city clerk. (Ord. 20601.)

• A. Each application for a franchise shall contain the following information:

  1. The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main offices, major stockholders and associates, and the names and addresses of parent and subsidiary companies.

  2. A statement of the category of franchise applied for as listed in Section 15.36.190, and a general description of what applicant proposes to do pursuant to the requested franchise.

  3. A statement of the zone or zones in which the applicant proposes to perform services in connection with police-generated tows for the police department, including a map of the proposed service area and location of business and storage facilities.

  4. A detailed description of all offices, storage yards, garages, and such other facilities as the council may require for operation of the franchise.

  5. A financial statement prepared by a certified public accountant, or otherwise satisfactory to the council, showing applicant's financial status and his financial ability to provide the city with adequate service and to maintain, install, or complete any requirements for office or storage facilities.

  6. A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation with respect to the proposed franchise or the proposed tow car operation. If a franchise is granted to a person, firm, group or corporation posing as a front or as the representative of another person, firm, group or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever.

• B. The council may at any time demand, and applicant shall provide, such supplementary, additional or other information as the council may deem reasonably necessary to determine whether the requested franchise should be granted.

• (Ord. 20601.)

Upon receiving an application for a franchise under the provisions of this chapter, the city clerk shall present the same to the council at the next regular meeting. The council shall thereupon, or within a reasonable time thereafter, pass resolution giving notice of the application and of the time and place of a public hearing thereon. The resolution shall give notice that an application has been filed for police-generated tow franchise under and pursuant to the provisions of this chapter, shall refer to the application on file in the office of the city clerk for full information respecting such application, and shall contain a notice of the time and place the

T15:208

PUBLIC UTILITIES

§ 15.36.250

council will hear persons desiring to be heard in favor of or in opposition to the granting of a franchise to applicant. (Ord. 20601.)

The hearing on an application for a franchise shall be held not earlier than the fourteenth day immediately following the date of adoption of the resolution giving notice of the application. The city clerk shall cause the resolution giving notice of the application and of the time and place of hearing thereon to be published in a newspaper of general circulation in the city at least twice, the first publication to be not later than the tenth day immediately preceding the date of hearing. (Ord. 20601.)

At the hearing on an application for a franchise, the council shall give all persons desiring to be heard a reasonable opportunity to present evidence or to be otherwise heard in favor of or in opposition to the granting of a franchise to the applicant. At such hearing, the council may demand such additional information as it may deem relevant and necessary. The hearing may be continued or adjourned, from time to time, to a stated time and place without the giving of further notice. (Ord. 20601.)

governmental or contractual in nature, as it may deem advisable to protect citizens or to promote the efficient conduct of official police business, to preserve the rights and interests of the city in its streets and public places, and to otherwise protect the interests of the city and its people.

• B. In making its decision, the council may consider whether the applicant is qualified, or better qualified than others, to render prompt and efficient police-generated tow service to citizens; quality of service; compliance with rate resolutions adopted by the council; income to the city; experience and financial responsibility of the applicant; and any other consideration that will safeguard the city's public interest.

• C. The police-generated tow franchise granted by the council to the applicant need not be identical to or the same as that requested by applicant, but may vary or be different therefrom. For example, the rights or privileges granted thereby may be less or more limited than those requested by applicant.

• D. No franchise shall be granted except by ordinance. No franchise shall become effective unless and until all things required by the provisions of Part 4 of this chapter have been done and completed.

• (Ord. 20601.)

Part 4

• A. Upon conclusion of the hearing on the application for a franchise, or within a reasonable time thereafter, the council shall render its decision thereon. If it deems such action to be for the public good, it may refuse to grant the requested franchise, or it may, by ordinance, grant the same, or it may, by ordinance, grant to any other applicant such police-generated tow franchise as it may deem to be for the public good, subject to such terms, conditions, rules, regulations, restrictions and limitations,

PREREQUISITES TO EFFECTIVENESS OF FRANCHISES

Sections:

• 15.36.310 Acceptance of franchise - Agreement to comply.

• 15.36.320 Faithful performance bond requirements.

• 15.36.330 Insurance requirements for grantees.

T15:209

SAN JOSÉ CODE

§ 15.36.300

No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting the same has become effective and, in addition, unless and until all things required of the grantee by the provisions of this Part 4, all of such things being hereby declared to be conditions precedent, are done and completed. In the event any of such things are not done and completed in the time and manner required, the council may declare the franchise null and void. (Ord. 20601.)

Within twenty days after the adoption date of the ordinance granting a franchise, or within such extended period of time as the council in its discretion may authorize, the successful applicant or grantee shall file with the city clerk his written acceptance, in form satisfactory to the city attorney, of the franchise, together with his agreement to be bound by and to comply with and to do all things required of him by applicable provisions of the city's Charter, provisions of this chapter and provisions of the franchise. Such acceptance and agreement shall be acknowledged by the successful applicant before a notary public and shall in form and content be satisfactory to and approved by the city attorney or an authorized deputy. (Ord. 20601.)

• A. Within twenty days from and after the adoption date of the ordinance granting the franchise, or within such extended period of time as the council in its discretion may authorize, the grantee shall file with the city risk manager, and thereby deliver to the city, a faithful performance bond, executed by grantee as obligee and by one or more corporate sureties, authorized to engage in such business in the state of California, as surety, in the principal sum of five thousand dollars, embossed with

  • the corporate seal of the bonding company, conditioned that in the event that grantee, during the term of said bond, shall fail to comply with and do all things required of him by applicable provisions of the city's Charter, by provisions of this chapter, by provisions of the franchise, or by provisions of any lawful requirement of the city, then said obligee and said surety shall be jointly and severally bound and liable to the city, and there shall be recoverable by the city from said obligee and surety, jointly and severally, any and all damages, up to the full amount of said bond, suffered by the city as a result thereof, including but not limited to the full amount of any franchise fee, compensation, indemnification or cost of removal or abandonment of property owing by grantee to the city pursuant to the provisions of this chapter, or of said franchise, for which grantee may be in default.

• B. The term of said bond shall be the entire term of the franchise or, in lieu thereof, the grantee may file and deliver, successively, two or more such bonds, each for a term of not less than one year, unless the council authorizes otherwise, covering the entire term of the franchise. In the latter event the first such bond shall be filed and delivered as aforesaid within twenty days from and after the adoption date of the ordinance awarding the franchise, or within such extended period of time as the council in its discretion may authorize, and each subsequent bond shall be filed and delivered on or before the thirtieth day immediately preceding the date of expiration of the bond then in effect.

• C. Neither the provisions of this section or any bond accepted by the city pursuant thereto, nor the recovery by the city of any damages shall be construed to excuse good faith performance by the grantee of all obligations which he may have under this chapter or under said franchise, nor excuse damages, either to the full amount of the bond or otherwise.

T15:210

PUBLIC UTILITIES

§ 15.36.330

• D. Each above-mentioned bond shall be in form satisfactory to and approved by the city risk manager.

• (Ord. 20601.)

• A. Within twenty days after the adoption date of the ordinance awarding the franchise, or within such extended period of time as the council in its discretion may authorize, the grantee shall furnish and file with the city risk manager, at grantee's sole cost and expense, all of the following insurance requirements or such other greater insurance requirements as may be required by any financial responsibility laws of the state of California, or by any ordinances or resolutions adopted by the council or by the City of San José, or by any amendments thereto:

  1. Comprehensive automobile liability policy for bodily injury, property damage, and uninsured motorist with the following requirements and minimum limits per occurrence:

     • a. Bodily injury and property damage with a combined single limit of six hundred thousand dollars.

     • b. Uninsured motorists' coverage with a minimum limit of thirty thousand dollars combined single limit.

     • c. The above coverage is to apply for all owned, nonowned and hired vehicles.

  2. Comprehensive general liability policy in the amount of five hundred thousand dollars combined single limit for bodily injury and property damage with the following coverage parts attached thereto:

     • a. Garagekeeper's legal liability, Division II with a minimum limit of five hundred thousand dollars combined single limit.

     • b. Broad form contractual liability coverage with a minimum limit of five hundred thousand dollars combined single limit.

3. Workers' compensation insurance policy:

   • a. This policy shall be written in accordance with the statutory laws of the state of California and cover all employees, as the term "employees" is defined by any and all applicable statutory or decisional law or administrative rules or regulations regarding workers' compensation.

   • b. One hundred thousand dollars (coverage B) "employer's liability" shall also be included in the workers' compensation policy.

   • c. It shall be the sole responsibility of the holder of an owner's license to secure workers' compensation insurance for all persons employed by said holder of an owner's license.

4. Each of the following four endorsements shall be made a part of the comprehensive automobile liability policy and the comprehensive general liability policy, and the garage liability policy in the exact language appearing below:

   • a. The city, its officers, employees, agents, contractors, and invitees are hereby added as additional insureds.

   • b. This policy shall be considered primary insurance as respects any other valid and collectible insurance the City of San José may possess, and any other insurance the city does possess shall be considered excess insurance only.

   • c. Thirty days' prior written notice shall be provided to the City of San José in the event of cancellation and/or reduction in coverage of any nature. Such notice will be sent to risk manager, City of San José, 801 North First Street, San José, California 95110.

   • d. This insurance shall act for each insured and additional insured as

T15:211

SAN JOSÉ CODE

§ 15.36.330

though a separate policy had been written for each. This requirement, however, will not act to increase the limit of liability of the insuring company.

The workers' compensation insurance policy will require only the endorsement contained in subsection 4, above.

B. A true, certified and correct copy of the entire policy including copies of all endorsements made a part thereof shall be mailed to the risk manager, City of San José, 801 North First Street, San José, California 95110, directly from the authorized agent, broker or insuring company, for each policy required under this section. All policies shall be on file and effective at the time the grant of franchise becomes effective. All policies and coverages shall be valid during the entire term of any franchise granted under this chapter. If at any time the entire insurance requirements or any portion thereof expires without immediate proof of renewal or is cancelled without proof of reinstatement prior to the effective date of cancellation, the franchise shall be immediately suspended, and the chief of police is hereby authorized to enforce such suspension after receiving written notice from the city risk manager that no proof of renewal or reinstatement has been submitted by the grantee.

C. All policies and coverages required by this section are subject to approval by the city risk manager as to content and form, and no franchise shall be valid until such approval is issued in writing to the city council and/or the chief of police by the city risk manager. If at any time in the judgment of the city risk manager said policies and/or coverages are not sufficient for any cause or reason, the city risk manager may require the grantee to replace said policies and/or coverages within ten days with other policies and/or coverages acceptable in accordance with this section. If said grantee fails to replace said policies and/or coverages within said ten-day period with good

and sufficient policies and/or coverages as aforesaid, then, at the termination of said period, the franchise of the grantee shall be, by such failure, automatically suspended until such time as said requirement is complied with, and the chief of police is hereby authorized to enforce such suspension after receiving written notice from the city risk manager that said policies and/or coverages have not been replaced with good and sufficient policies and/or coverages.

• D. Prior to the effective date of the ordinance granting a franchise pursuant to this chapter, the grantee shall submit to the city risk manager a signed agreement to indemnify, hold harmless and defend the City of San José against any claim, cause of action, disability, loss, damage, cost or expense for bodily injury or property damage or liability for workers' compensation of any person, including city, howsoever arising, which occurs by reason of activities of the grantee in the operation of the franchise and/or the grantee's tow car business, his agents, employees, contractors or invitees, except as arises from city's sole willful act or sole negligence; such liability shall be without apportionment for comparative fault.

ge or liability for workers' compensation of any person, including city, howsoever arising, which occurs by reason of activities of the grantee in the operation of the franchise and/or the grantee's tow car business, his agents, employees, contractors or invitees, except as arises from city's sole willful act or sole negligence; such liability shall be without apportionment for comparative fault.

• (Ord. 20601.)

Part 5

FRANCHISE CONDITIONS, LIMITATIONS AND REGULATIONS

Sections:

15.36.355 Contracts and agreements.

15.36.360 Franchise not exclusive.

• 15.36.370 Compliance with council orders.

• 15.36.380 Termination - Council authority - Conditions.

• 15.36.390 Limitation on rights and privileges granted.

• 15.36.400 Rights reserved to city.

T15:212

PUBLIC UTILITIES

§ 15.36.380

15.36.410 Franchise transfer or assignment restrictions.

• 15.36.420 Franchise no bar to exercise of governmental right or power.

• 15.36.430 Grantee's rights subject to applicable city requirements.

• 15.36.440 City officers and employees - Rights, powers and duties transferable.

• 15.36.450 No recourse against city for loss.

• 15.36.460 Indemnification of city.

• 15.36.470 Prompt compliance required.

• 15.36.480 Operational standards.

• 15.36.490 Report requirements.

• B. Any contract or agreement referred to in subsection A shall be governed only by its own terms and not by the provisions of this chapter.

• (Ord. 22189.)

Any franchise granted under the provisions of this chapter shall be nonexclusive, and neither the granting of such a franchise nor any of the provisions contained therein shall prevent the city from granting any identical, similar or different franchise to any person other than grantee for all or any areas of the city.

(Ord. 20601.)

• 15.36.500 Inspection of property and records.

• 15.36.510 Controversy settlement procedures.

• 15.36.520 Amendment of chapter provisions.

• 15.36.530 Notice requirements.

Any franchise granted under the provisions of this chapter shall be for such term as the council may specify; provided, however, that no franchise shall be granted for a term in excess of five years from and after the effective date of the ordinance granting same, and that all grants of franchises under this chapter shall terminate on a common expiration date adopted by a resolution of the council.

New grants of franchises shall not be granted during the period of time beginning one hundred eighty days prior to the common expiration date; however, applications for grants of franchises commencing at the expiration of prior grants of franchises may be made during said one hundred eightyday period.

(Ord. 20601.)

• A. Notwithstanding any other provision of this chapter, the council may at any time authorize or award any contract or agreement to conduct police-generated tows that it deems to be in the public interest.

Every grantee shall obey and comply with every order, direction, rule, resolution or ordinance made or prescribed by the council. (Ord. 20601.)

The council shall have the right to terminate any franchise granted pursuant to the provisions of this chapter if it finds, after public hearing following not less than fifteen days' written notice to grantee, that:

• A. Grantee has failed to comply with, or to do anything required of him by, applicable provisions of the city's charter, provisions of this chapter or provisions of the franchise; or that grantee has violated any term, condition or provision of said Charter, chapter or franchise or of any permit issued pursuant thereto; or

• B. Any provision of this chapter becomes or is declared to be invalid and the council expressly finds that such provision constitutes a material consideration to the grant or continuance of said franchise.

• (Ord. 20601.)

T15:213

SAN JOSÉ CODE

§ 15.36.390

No right, privilege or exemption is granted or conferred to or otherwise acquired by a grantee of a franchise granted pursuant to this chapter except those expressly one specifically granted to him in and by the franchise. (Ord. 20601.)

There is hereby reserved to the city every right and power which is required to be herein reserved or the exercise of which is provided for by any provision of any lawful ordinance or resolution of the city heretofore or hereafter enacted, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirement of the city in its exercise of any such right or power. (Ord. 20601.)

Any franchise granted pursuant to this chapter is a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned, or disposed of, either in whole or in part, by either forced sale, merger, consolidation, bankruptcy, reorganization under bankruptcy laws, or otherwise, without the prior consent of the council expressed by ordinance, and then only under such conditions and terms as may be prescribed by the council; provided, however, that no such consent shall be required to any transfer in trust, mortgage or other hypothecation, as a whole, to secure indebtedness. No sale, transfer, lease, assignment or other disposition shall relieve a grantee from any of its duties and obligations under such franchise, unless a written release is obtained from the council. (Ord. 20601.)

Neither the granting of any franchise nor any provision thereof shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

(Ord. 20601.)

The grantee, and all rights granted to him under this chapter, shall be subject to all applicable requirements of the city's Municipal Code and to all ordinances, rules, regulations and specifications of the city heretofore or hereafter enacted or established, including but not limited to those concerning tow car business permits and rate resolutions. (Ord. 20601.)

Any right, power or duty given to or impressed upon any officer, employee, department or board of the city with respect to the application, grant, or operation of a franchise under this chapter shall be subject to transfer by the city to any other officer, employee, department or board of the city.

(Ord. 20601.)

The grantee shall have no recourse whatsoever against the city, its officers, employees or agents, for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or of any franchise issued under such chapter, or because of its enforcement. (Ord. 20601.)

The grantee shall indemnify and shall agree to indemnity the city, its officers and employees against all claims, demands, actions, suits and proceedings by others, and against all liability to others, and against any loss, cost and expense resulting there-

T15:214

PUBLIC UTILITIES

§ 15.36.510

from, including reasonable attorney's fees arising out of or resulting from the exercise or enjoyment of any franchise or any act or omission of grantee with respect thereto, irrespective of the amount of the comprehensive liability insurance policy required under the provisions of this chapter. (Ord. 20601.)

Time is and shall be of the essence of any franchise granted under this chapter. The grantee shall comply and shall not be relieved of his obligation to comply promptly with each and every provision of this chapter and of the franchise. He shall not be deemed relieved of such obligation by or because of the failure of the city to enforce prompt compliance.

(Ord. 20601.)

• A. Any tow trucks, office or storage facilities bought, maintained or installed by the grantee shall be kept and maintained in good condition so that towees shall receive the highest possible quality service.

• B. The grantee shall furnish and maintain such adequate, efficient, just and reasonable service, instrumentalities, equipment and facilities as are necessary to promote the safety, health, comfort and convenience of towees, its employees and the public.

• C. The council shall have the right and power to establish such minimum standards as it may deem advisable for the above purposes, and grantee shall comply with them.

• (Ord. 20601.)

The grantee shall prepare and furnish to the city auditor, at the times and in the form required by said officer, such reports with respect to its operations, affairs, transactions or property as may be reasonably necessary or appropriate to the perfor-

mance of any of the rights, functions or duties of the city or any of its officers in connection with the franchise.

(Ord. 20601.)

• A. At all reasonable times, the grantee shall permit any duly authorized representative of the chief of police and/or city auditor to examine all franchised property, together with any appurtenant property of the grantee situate within or without the city, and to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control which treat of the operations, affairs, transactions or property of the grantee with respect thereto. If any of such maps or records are not kept in the city, then upon request, they shall be made available in the city.

• B. The grantee shall, at all times, make and keep in the city full and complete plans, maps and records showing the exact location of all business premises and storage yards in use by the grantee.

• (Ord. 20601.)

• A. The city council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter and may determine any question of fact which may arise during the existence of any franchise issued under the provisions of this chapter.

• B. The chief of police is authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the city, the grantee, or any citizen in the best interest of the public, by conducting a hearing after ten days' written notice to grantee and any other party deemed necessary by the chief of police. The chief of police shall issue a decision and findings in writing to the grantee. Either the grantee or any member of the public who may be dissatisfied with the decision of

T15:215

SAN JOSÉ CODE

§ 15.36.510

the chief of police may appeal the matter, within fifteen days after a written decision has been rendered by the chief of police, to the council or to any committee or person appointed by the council to hear same for hearing and determination. The council, or the committee or the person designated by the council, may accept, reject or modify the decision of the chief of police; and the council, or said committee or person, may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this chapter. (Ord. 20601.)

The power to amend any section or part of this chapter so as to require additional or greater standards of construction, operation, maintenance or otherwise, on the part of the grantee, is hereby expressly reserved to the city. (Ord. 20601.)

• A. All notices required by the provisions of this chapter or of any franchise, to be given by the city, or by its council or any officer, employee or agent of the city to the grantee or any of his assigns or successors, and all other notices which the city may give pursuant to this chapter or franchise, may be personally served, or may be given by ordinary United States mail, postage prepaid, addressed to grantee at his office in San José, the address of which shall be filed by grantee with the city clerk, or at the address given in the franchise.

• B. All notices required by the provisions of this chapter, or of any franchise, to be given by grantee to the city, and all other notices which grantee may give to the city pursuant to this chapter or of any franchise granted thereunder, shall be personally delivered to the city clerk, or may be given by ordinary United States mail, postage prepaid, addressed to the city, care of the city clerk, City Hall, San José, California.

• C. All documents and papers required to be filed with the city shall be filed with the city clerk.

• (Ord. 20601.)

Part 6

MINIMUM QUALIFICATIONS AND OPERATION OF FRANCHISE

Sections:

• 15.36.610 Fees required for operation of franchise.

• 15.36.620 Operation of a communications center.

• 15.36.630 Establishment of zones of operation for grantees.

• 15.36.635 Redivision of zones of operation for grantees.

• 15.36.640 Minimum requirements for applicants and grantees.

• 15.36.650 Requirements and operation of an adequate storage facility.

• 15.36.660 Requirements - Operation in more than one zone.

• 15.36.670 Abandoned vehicles.

• 15.36.680 Penalty - Failure to respond to police-generated tows within allotted time.

• 15.36.720 Suspension or cancellation of franchise.

In addition to the minimum qualifications listed in this Part 6 for grant of a franchise, the council

T15:216

PUBLIC UTILITIES

§ 15.36.640

may specify and require additional standards and/or qualifications by resolution, ordinance, or contract.

(Ord. 20601.)

Any zones established pursuant to this section may be redivided from time to time as provided in Section 15.36.635.

(Ords. 20601, 22282.)

franchise.

The council shall require, as a condition for grant of a franchise, the payment of any fees which it deems proper to cover the costs for operation of a communications center, any inspections of business premises, storage yards, or records of a grantee or an applicant, or for any other purpose deemed proper by the council.

(Ord. 20601.)

In order to maintain effective and efficient dispatch of tow cars on official police business, the council may:

1. Award a contract for the operation of central communications center, which center shall have the responsibility for dispatching tow cars on official police business in an orderly manner prescribed by the terms of the contract, and which center shall have one phone number to be used by the police in calling for tow car services, said center to operate on a twenty-four-hours-a-day, seven-days-a-week basis, all costs associated therewith to be paid by fees from any and all grantees; or

2. Provide for the operation of a central communications center for the dispatch of tow cars on official police business by the City of San José, all costs associated therewith to be paid by fees from any and all grantees.

The central communications center shall dispatch tow cars according to directions as provided in Section 15.36.635.

(Ords. 20601, 22282.)

Prior to the grant of franchises pursuant to this chapter, the council shall, by resolution, divide the city into zones of operation for the conduct of police-generated tows by grantees.

Whenever the council determines that the redivision of zones of operation for the policegenerated tows under franchises granted pursuant to Section 15.36.630 is in the public interest, it may, by resolution, after one or both of the following:

• A. The boundaries of any zone; or

• B. The number of zones.

(Ord.

22282.)

• A. The council may in its sole discretion determine both the number of zones into which the city is divided or redivided and the boundaries of said zones so as to assure the efficient completion of police-generated tows.

• B. Any franchise granted pursuant to this chapter is nonexclusive. The council may in its sole discretion determine the number of grantees that may operate in any zone so as to assure the efficient completion of police-generated tows.

• (Ord. 22282.)

• A. All applicants under this chapter shall, at the time of application for franchise or within such time as may be specified in the various subsections hereunder, meet the following minimum qualifications:

  1. Maintain at least three tow trucks which are power operated and equipped in accordance with the Vehicle Code of the state of California, and equipped with two-way radios, which tow trucks must be registered in the name of the tow car company owner; provided that a tow car

T15:217

SAN JOSÉ CODE

§ 15.36.640

• company owner with a minimum of two such tow trucks shall be permitted to apply for a grant of franchise. If a tow car company owner with a minimum of two tow trucks is granted a franchise pursuant to this chapter, said grant shall be conditioned on the requirement that said owner obtain another tow truck for a minimum total of three tow trucks within one hundred eighty days from the date of the grant of franchise, or said grant of franchise shall be canceled pursuant to the provisions of Section 15.36.510 of this chapter.

2. Have conducted a tow car business in the City of San José for a minimum period of one year, with a valid tow permit subsisting throughout said one-year period, and with a primary office facility and the required storage facilities located within the City of San José throughout said one-year period; said valid permit shall be maintained throughout the term of the franchise, and the primary office facility and storage facilities shall not be moved outside the city limits during the term of the franchise, nor shall the primary office facility and the storage facility be moved outside of the zone for which the grantee was granted a franchise unless consent of the council is obtained in writing. Any unauthorized relocation of the primary office facility and/or storage facility shall be grounds for cancellation of the franchise.

3. Maintain a primary office facility and a storage yard within the zone in which it proposes to conduct a franchise.

4. Have no more than one company occupying and/or using the same primary office facility and storage facility, unless both companies occupying said office facility and storage facility are applicants for franchises and unless both are subsequently granted franchises.

   5. Maintain an adequately equipped storage facility available for twenty-fourhours-a-day, seven-days-a-week storage, which facility meets the requirements of Section 15.36.650.

   6. Have an employee at the primary office facility twenty-four hours a day, seven days a week, or have an employee available who can arrive at the primary office facility within twenty-five minutes of a police or citizen request, in order to assure that a citizen may claim his vehicle at any time and properly to protect policeimpounded vehicles.

   7. Guarantee response to a dispatch order for police-generated tows within twentyfive minutes of receiving the order from the central communications center.

5. Have no outstanding or unresolved police or citizens' complaints against it at the time of application, or, subsequent to grant of a franchise, the grantee shall resolve all citizens' or police complaints regarding the conducting of its towing and storage business within ninety days or its franchise shall be temporarily suspended, or canceled, upon a determination by the chief of police, pursuant to Section 15.36.510, that grantee has not resolved police or citizens' complaints against it.

   9. Comply with all provisions of Chapter 6.66 of Title 6 of the San José Municipal Code and with any other resolutions or ordinances regulating the conduct of a tow car business, and with such other rules or regulations as the council may specify in addition to those in this chapter for a grant of franchise.

• B. The minimum qualifications listed in subdivision A, above, shall be applicable throughout the grant of franchise to any grantee.

• C. All grantees of franchises under this chapter shall, within thirty days of accepting a grant of franchise, place the number of the zone for

T15:218

PUBLIC UTILITIES

§ 15.36.650

which a franchise has been granted on each tow truck which is used for conducting policegenerated tows; said 9092 number shall be at least six inches in height and shall be painted on each door of said tow truck. For the purpose of conducting police-generated tows, said tow trucks shall be restricted to the zone for which a franchise was granted, unless said grantees have been requested to provide services temporarily in connection with policegenerated tows in another zone pursuant to Section 15.36.190C.

(Ord. 20601.)

• A. All applicants or grantees under this chapter shall maintain the following primary lot storage facilities, to be inspected at the time of application by the chief of police to determine compliance with these requirements and, if a franchise is granted, at various times thereafter to ensure compliance:

  1. Maintain a paved primary lot sufficiently large to store at least twenty-five automobiles with at least two feet of clearance between the sides of all vehicles and at least one-foot clearance between the front or rear end of any vehicle and the front or rear end of another vehicle, which primary lot shall be enclosed by a substantial chain link fence or wall at least six feet in height and shall be provided with at least one gate or door; the bottom edge of the fencing to be not more than two inches above the paved parking surface of the enclosed primary lot. The top edge of the fence or wall enclosure, including all gates or doors thereto, for open areas or open areas provided with roof shall be equipped with not less than two barbed wires installed so as to discourage access over the top of the fence or wall.

  2. Maintain a primary office facility at the primary storage lot which shall afford the public shelter during rain or bad weather, which shall have sufficient space and furniture to accommodate the public, and which shall have a restroom and telephone available for public use. Applicants without such office facilities may, if granted a franchise pursuant to this chapter, provide a temporary office facility for a period not to exceed one hundred eighty days from the date of grant of a franchise, until a permanent office facility is constructed which meets the aforesaid requirements.

  3. Said primary lot shall be lighted during hours of darkness.

• B. All police-impounded vehicles, vehicles held for investigation, and recovered vehicles shall be stored in the primary lot and shall not be moved until authorized by a police investigator. Vehicles with police holds shall not be lien sold. Abandoned vehicles shall be stored in the primary lot until checked and cleared by the police department, and may be stored in a secondary lot after such vehicles have been so cleared.

• C. All applicants or grantees under this chapter may maintain secondary lots, subject to inspection by the chief of police to determine compliance requirements stated hereunder and, if a franchise is granted, at various times thereafter to ensure compliance, which said lots need not be located in the zone for which a franchise is granted and which said lots shall meet the following requirements:

  1. Secondary lots shall have a smooth, level surface of hard rock or better quality paving.

  2. Secondary lots shall be enclosed by a substantial chain link fence or wall at least six feet in height and shall be provided with at least one gate or door, with the bottom edge of any fence to be not more than two inches above the paved

T15:219

SAN JOSÉ CODE

§ 15.36.650

• parking surface of the enclosed primary lot and the top edge of the fence or wall enclosure, including all gates or doors thereto, to be equipped with not less than two barbed wires installed so as to discourage access over the top of the fence or wall.

  3. Secondary lots shall be lighted during hours of darkness.

• D. Grantee shall be responsible for the protection of police-impounded vehicles in their possession until the vehicles have been released to their owners or disposed of through legal process, and shall be responsible for safeguarding all articles left in the impounded vehicles. All grantees shall comply with police regulations regarding the inventory or removal of property found in police-impounded vehicles.

• (Ord. 20601.)

• A. No applicant for the grant of franchise under this chapter shall be granted franchises to conduct police-generated tows in more than one zone unless said applicant maintains a primary office facility as defined in Section 15.36.120, a paved primary lot as defined in Section 15.36.650, and the number of tow trucks required by Section 15.36.640, in each and every zone for which an application for a grant of franchise is made.

• B. No grantee under this chapter shall be permitted to conduct police-generated tows in more than one zone, even though said grantee was granted franchises in more than one zone pursuant to A, above, if said grantee fails to maintain throughout the term of the franchise a primary office facility as defined in Section 15.36.120, a paved primary lot as defined in Section 15.36.650, and the number of tow trucks required by Section 15.36.640, in each and every zone for which a franchise was granted.

• (Ord. 20601.)

• A. All grantees under this chapter, except those granted franchises for the acceptance of VIN tows only, shall be required to accept any policegenerated tow of an abandoned vehicle, provided that tows of abandoned vehicles will only be required during regular business hours.

• B. Upon a determination by the chief of police, after a hearing conducted pursuant to Section 15.36.510, that a grantee has refused to accept a tow of an abandoned vehicle when such grantee was able to accept other police-generated tows, the chief of police shall:

  1. Suspend the grantee from operation of its franchise for thirty days for the first offense within a calendar year;

  2. Suspend the grantee from operation of its franchise for ninety days for the second offense occurring within one year of the first offense;

  3. Refer the matter to the council for a determination as to cancellation of the franchise in accordance with Section 15.36.380 for the third offense within one year of the first offense.

• (Ord. 20601.)

All grantees under this chapter shall respond to police-generated tows within twenty-five minutes of receiving notice of dispatch from the central communications center. Upon a determination by the chief of police that a grantee failed to respond reasonably within the allotted time, after a hearing has been held pursuant to Section 15.36.510, the chief of police shall assess the following penalties:

1. For the first offense within a calendar year, the grantee shall be suspended from its franchise for a thirty-day period.

2. For the second offense within a year of the first offense, the grantee shall be suspended from its franchise for a ninetyday period.

T15:220

PUBLIC UTILITIES

§ 15.36.720

3. For the third offense within one year of the first offense, the matter shall be referred to the council for a determination as to cancellation of the franchise in accordance with Section 15.36.380.

• (Ord. 20601.)

• C. Grantee shall release such vehicles to their owners, operators or agents upon the receipt of: (a) United States currency; (b) personal check; or (c) MasterCard or Visa.

  1. With reference to personal checks, the grantee may require that:

     • a. Checks be personalized

The grantee shall maintain such insurance as is required under Section 15.36.330 of the San José Municipal Code throughout the term of its franchise. The council may require such other insurance policies and/or coverages as it deems necessary or as may be recommended to the council by the city risk manager. Failure to maintain adequate insurance at any time during the franchise shall result in immediate suspension of the franchise, pursuant to the provisions of Section 15.36.330. (Ord. 20601.)

All grantees of a franchise under this chapter shall keep and maintain complete and accurate records of all police-generated tows and services provided in connection therewith, which such record shall include vehicle license number, vehicle identification number, vehicle description, date and time towed, location from which towed, fees charged for all services provided, disposition of vehicle and/or date of release to towee, and number of policegenerated tows received per month. All such records shall be made available at any time pursuant to request by the chief of police or city auditor. (Ord. 20601.)

• A. All fees or charges for services rendered pursuant to a police-generated tow shall be billed to the owner or party whose vehicle was towed, and the city shall not be liable to grantees for any fees, charges, or costs incurred by grantees for any such services provided.

• B. All fees or charges for services rendered pursuant to a police-generated tow shall be billed in amounts not to exceed rate resolutions adopted by the council.

  - b. It be written upon a California bank; 
  
  - c. The person presenting the check show a valid California driver's license or a valid California identification card; and 
  
  - d. Check is not more than one hundred dollars. 
  

  2. With reference to credit cards, the grantee may require:

     • a. An accompanying valid California driver's license or valid California identification card;

• b. Verification from bank or credit referral service that the credit card is valid and authorizing the charge.

• (Ords. 20601, 21873.)

• A. The council may terminate any franchise granted pursuant to the provisions of this chapter if it finds, in accordance with Section 15.36.380, that the grantee has failed to comply with any terms of the franchise, provisions of the city's Charter, or provisions of this chapter.

• B. The chief of police shall suspend or refer the matter of cancellation of the franchise to the council in accordance with Section 15.36.680 when a grantee fails to respond to a policegenerated tow within the allotted time.

• C. The chief of police shall suspend the franchise or refer the matter of cancellation of the franchise to the council in accordance with the provisions of Section 15.36.670 when a grantee fails to conduct an abandoned vehicle tow.

• D. The franchise shall be automatically suspended or canceled whenever the tow car business permit of a grantee is suspended or revoked

T15:221

SAN JOSÉ CODE

§ 15.36.720

pursuant to the applicable provisions of the municipal code governing tow car business permits.

• E. The franchise shall be deemed automatically suspended when the grantee fails to keep in full force and effect adequate insurance as required by Section 15.36.330.

• F. The council may terminate or cancel any franchise granted pursuant to the provisions of this chapter if it finds, in accordance with Section 15.36.380, that continued operation of said franchise or franchises would violate public policy or any federal, state or local laws.

• (Ords. 20601, 21453.)

Part 7

FRANCHISE FEES AND RECORDS

Sections:

• 15.36.860 Annual fee - Where payable.

• 15.36.870 Annual fee - When payable.

• 15.36.880 Statement to accompany payment.

• 15.36.890 Payment to be in addition to other license fees.

• 15.36.900 Accounting and recordkeeping requirements - City inspection authority.

• A. Any grantee granted a franchise pursuant to the provisions of this chapter shall pay to the city during the life of such franchise, and at the time specified in this part, a sum of money equal to thirteen percent of the total "gross annual receipts" as the term "gross annual receipts" is defined in Section 15.36.070, above, collected or received by the grantee, or in any manner gained or derived by the grantee in any calendar year or portion thereof from the properties, operations, and business for which the grantee has been granted a franchise under the provisions of this chapter. The first such

payment shall be due and payable to the city within thirty days from and after the end of the first ninety days following the effective date of the ordinance granting the franchise, and thereafter payments shall be due and payable in accordance with the provisions of Section 15.36.870.

• B. For any quarter or portion thereof, the city council may, by resolution, waive or reduce the amount of any police-generated tow franchise fee which has not accrued as of the date of the resolution. The foregoing waiver or reduction shall apply notwithstanding subsection A of this section, and shall be subject to any applicable laws.

(Ords. 20601, 20836, 22238, 22239.)

The franchise fee shall be paid to the city by delivery of the same to the city's director of finance. (Ord. 20601.)

Franchise fee payments shall be made quarterly. Within thirty days from and after the end of each quarter of each calendar year, the grantee shall pay to the city the franchise fee for the immediately preceding quarter year. (Ord. 20601.)

Each payment shall be accompanied by a statement, in duplicate, verified by grantee, or by a general officer or other duly authorized representative of the grantee, showing in such form and detail as the city's director of finance may require from time to time the facts material to a determination of the amount due. (Ord. 20601.)

T15:222

PUBLIC UTILITIES

The payment made to the city by the grantee pursuant to this chapter shall be in addition to any license fee or business license tax prescribed by the city for the same period.

(Ord. 20601.)

• A. The grantee shall at all times maintain accurate and complete records of each policegenerated tow received, which said records shall contain the following information:

  1. Name, address, and phone number of towee;

  2. Vehicle identification number, license plate number, make, year, model, and color of each vehicle towed pursuant to a policegenerated tow;

  3. Date and time received for each policegenerated tow;

  4. Location from which vehicle was towed, and name or number of driver assigned to said police-generated tow;

  5. Reason for tow, whether accident, impound, or other reason;

  6. Date of release for each vehicle;

  7. Name of party to whom the vehicle was released;

  8. All fees or charges connected with said tow, showing specifically tow, storage, use of dolly or drive line labor, and lien sale in addition to the total of such charges or fees; and

  9. Date that said charges were paid.

• B. Grantee shall remit, with each payment of franchise fee, a copy of the information required by subsection A, above, and shall also remit information containing the total number of police-generated tows received per month, and a list of vehicles still pending for disposition which said vehicles were towed or stored pursuant to a police-generated tow.

• C. The grantee shall at all times maintain accurate and complete accounts of all revenue and income arising out of its operations under said franchise. Grantee's books, accounts, and records shall at all times be open to inspection and examination by authorized officers, agents and employees of the city and shall be kept in such form as to enable such authorized officers, agents and employees to ascertain the amounts of money due the city and to determine such other facts as may be necessary to determine whether or not grantee is complying with the terms of said franchise. The right is reserved to the city of audit and recomputation of any and all amounts paid by grantee, and no acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the city may have for further or additional sums payable under such franchise or for the performance of any other obligation thereunder. In the event of any holding over after expiration or other termination of said franchise, without the consent of the city, the grantee shall pay to the city a reasonable compensation and damages, of not less than one hundred percent of its gross annual receipts during said period.

• (Ord. 20601.)