Part 5 — FRANCHISE CONDITIONS, LIMITATIONS AND REGULATIONS

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 eighty-day 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.

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.)

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.)

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 therefrom, 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 performance 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 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.)