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2008R29 - Roadrunner TowingRESOLUTION NO. 08-R-29 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING ANON-CONSENSUAL TOWING AGREEMENT WITH ROADRUNNER TOWING, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council (the "City Council") of the City of Schertz (the "City") has determined that it is in the best interest of the City to enter into aNon-Consensual Towing Agreement with Roadrunner Towing, relating to the non-consensual towing of wrecked, disabled, or illegally parked vehicles, vehicles for which the driver is .incapable of driving, vehicles to be processed for evidence, and vehicles belonging to subjects being arrested by City police officers; now, therefore, THAT: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS Section 1. The City Council hereby authorizes the City Manager to execute and deliver aNon-Consensual Towing Agreement with the party described therein in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. Resol Towing Agmt.doc PASSED AND ADOPTED, this 10th day of June, 2008. CITY OF HERTZ, TEXAS ATTEST: City Secretary (CITY SEAL) Resol Towing Agmt.doc NON-CONSENSUAL TOWING AGREEMENT This Non-Consensual Towing Agreement dated as of June 1, 2008 (this "Agreement") is between the City of Schertz, Texas (the "City") and Roadrunner Towing (the "Company"). GENERAL RECITALS WHEREAS, it is found to be in the public interest and necessary to provide for the safety of the of the citizens of Schertz to have anon-exclusive wrecker service provider in the City; and WHEREAS, the City has reviewed and is satisfied with the qualifications of the Company; ARTICLE I CITY' S AGREEMENTS 1.1 Operating Authority. The Company is hereby authorized to operate a non- exclusive service for the non-consensual towing in the City of wrecked, disabled, or illegally parked vehicles, vehicles for which the driver is incapable of driving, and vehicles to be processed for evidence and vehicles belonging to subjects arrested by a law enforcement officer of the City. Services under this Agreement also include removal of vehicles from private property when directed by the City's Chief of Police or his designee. 1.2 Notification. The City shall provide the Company by telephone, radio, or any other rapid means of communication, the location where the Company's wrecker is to report. 1.3 Impound Records. The City shall provide to the Company's driver a copy of the impoundment sheet, if available at the time of impoundment. The form will contain the case number, if available, and will indicate whether or not a "hold" or other restriction is placed on the vehicle. Vehicles that are designated as "available for release" on the impoundment sheet may be released by the Company upon its receipt of payment of all required fees and charges. 1.4 Notice by City. When a motor vehicle has been towed and placed in storage as a result of a police request, the Police Chief or his designee shall notify the last known registered owner and all lien-holders of record that the motor vehicle has been taken into custody. 1.5 Disposition of Abandoned Vehicles. The City shall dispose of all abandoned vehicles in the Company's possession in accordance with Texas law. Payment of accrued and unpaid towing and storage charges will be made from the proceeds of the auction or other permissible disposition. 1.6 Fees. The Company is authorized to charge and retain fees for its services hereunder, as set forth on Exhibit A, as amended from time to time by the City. All such fees shall be payable to the Company. 1.7 Review of Fees. The City shall review all fees set forth in Exhibit A periodically and may adjust any or all of such fees if it deems such adjustment to be appropriate. 50075477.2 1.8 Non-Exclusive Rights. The rights and privileges granted to the Company in this Agreement shall not be exclusive, and the City may enter into similar agreements with other wrecker service providers. ARTICLE II COMPANY' S AGREEMENTS 2.1 Service. The Company shall provide all personnel, vehicles and other equipment, and materials to remove any vehicle pursuant to this Agreement. The Company shall obtain clearance from the Police Department (pursuant to procedures established by the Chief of Police from time to time) on all wrecker operations. 2.2 Hours of Operation. The Company shall provide twenty-four (24) hours a day, seven (7) days a week service, including holidays. 2.3 Vehicles and Other Equipment. The Company shall provide no fewer than two (2) wreckers on a 1 ton to 2%2 ton chassis, equipped with a minimum of 10,000 lbs. power-drive winch and all other equipment reasonably required for the Company to perform its obligations under this Agreement. All vehicles and other equipment shall be maintained in a safe manner and shall be operated by experienced drivers and operators with all licenses required by the State of Texas. 2.4 Vehicles and Equipment Backup. The Company shall arrange for and provide, at its expense, backup vehicles and equipment in the event the Company's vehicles or equipment fails or has insufficient workload capacity. 2.5 Storage Facility. The Company shall provide a secure area within the City limits for the storage of vehicles impounded pursuant to this Agreement. All of the Company's yards and storage areas within the City must meet the requirements of City and State law and shall be fenced in order to provide protection for vehicles in its custody, with gates secured with adequate locks. 2.6 Response. The Company shall maintain a telephone manned twenty-four (24) hours a day, seven (7) days a week and shall respond to designated locations within the City as directed by the Police dispatcher within twenty (20) minutes. 2.7 Personnel. The Company shall provide sufficient personnel to perform all of its obligations hereunder. 2.8 Indemnity. THE COMPANY SHALL INDEMNIFY AND SAVE HARMLESS THE CITY, AND ALL AGENTS, OFFICERS, EMPLOYEES AND REPRESENTATIVES THEREOF FROM AND AGAINST ANY AND ALL LOSS SUSTAINED BY THE CITY ON THE ACCOUNT OF ANY SUIT, JUDGMENT, CLAIM, OR DEMAND WHATSOEVER, RESULTING FROM THE NEGLIGENCE ON THE PART OF THE COMPANY, ITS AGENTS, OR EMPLOYEES IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. 2.9 Insurance. The Company agrees to procure and keep in full force and effect a policy or policies of public liability and property damage insurance, issued by a casualty insurance company authorized to do business in the State of Texas and in the standard form 50075477.2 2 approved by the State Board of Insurance, such policy or policies including the City as an additional insured, with the coverage provision insuring the public from any loss or damage that may arise to any person or property by reason of the operation of the Company pursuant to this Agreement and providing that the amount of recovery on each tow truck shall be in limits of not less than the following sums: (a) for damages arising out of bodily injury to or death of one person in any accident, $1,000,000; (b) for damages arising out of bodily injury to or death of two or more persons in any accident, $1,000,000; and (c) for injury to or destruction of property in any one accident, $1,000,000. Such policy or policies must be in full force before the Company commences service under this Agreement. Such insurance must provide that the City must receive at least sixty (60) days' prior written notice of cancellation of such insurance or any reduction of coverage. Either the original policy or policies or a certificate or certificates evidencing such insurance must be on file with the City Secretary of the City. 2.10 Liabilities. The Company shall timely pay all taxes, license fees, or other debts which are owed to the City or will become due in the future. 2.11 Repair; Cleanup. The Company shall repair or restore to its original condition any vehicle, equipment, or parts disconnected or tampered with for the purpose of towing and shall sweep and clean up all loose parts in the area of an accident. 2.12 Receipt for Vehicle. The Company shall provide to the vehicle owner or agent at the scene a receipt verifying the Company's possession and/or storage of vehicle, if available at the time of impoundment. The receipt will contain at least the following information: (a) identification of the vehicle; (b) identification of the driver/owner; (c) date/time of the occurrence; (d) destination of the transfer; (e) notification of whether or not there is a "hold" or other restriction on release of the vehicle; and (f) signature of officer directing impoundment of the vehicle; 2.13 Release of Vehicles. The Company shall release the vehicle to the owner or authorized agent only after all applicable charges and fees have been paid and shall release "hold" or otherwise restricted vehicles only if the release is authorized by the Police Department. 50075477.2 2.14 Notice by Company. The Company shall provide notice of the possession of a vehicle to the owner in accordance with the requirements of State law and shall provide to the City a copy of the certified; return receipt requested, letter of notice sent to the owner and a copy of the certification paper received by the Company from the post office after delivery of the certified notice. 2.15 Records. The Company shall maintain books reflecting its operations hereunder in accordance with general accounting principles. Such books and records, together with any other documentation necessary for verification of the Company's compliance with the terms of this Agreement, shall be open and available for the inspection by the City within the City at any reasonable time. The City may review impoundment fees and towing and storage charges once every calendar quarter for compliance with required charges. 2.16 Inventory and Fee Collection Report. The Company shall provide to the Chief of Police an inventory of all vehicles that have been impounded during each calendar quarter pursuant to this Agreement by each January 10, April 10, July 10, and October 10, commencing July 10, 2008. The list shall include the case number, vehicle identification number, owner, date of impoundment, and details regarding disposition of the vehicle or that the vehicle continues to be in the Company's possession. In addition, the Company shall submit to the City a detailed report of all fees collected during each calendar quarter pursuant to this Agreement by each January 10, April 10, July 10, and October 10, commencing July 10, 2008. 2.17 Fees. The Company shall collect a fee for each vehicle under its control pursuant to this Agreement pursuant to the Fee Schedule attached as Exhibit A, as modified from time to time by the City, and by the tenth (10~h) day of each month remit the portion of such fee to the City as set forth on Exhibit A. 2.18 Posting of Fees. The Company shall post in a prominent place a list of fees for its services under this Agreement as approved by the City. 2.19 Seizure Vehicles. The Company shall at no charge until final disposition store impounded vehicles that are pending forfeiture by the City. Vehicles that are not able to be seized and are available for release must have all charges paid by the registered owner prior to release. 2.20 No Assi~nxnent. The Company shall not assign, sell, or otherwise transfer its rights under this Agreement, nor shall it assign, sell, or otherwise transfer substantially all of its assets, to any other person or entity without the prior written approval of the City, which approval not to be unreasonably held. ARTICLE III TERM OF AGREEMENT AND RENEWAL AND TERMINATION OPTIONS 3.1 Term. Subject to Sections 3.2 and 3.3, this Agreement shall be for a term of five (5) years beginning on June 1, 2008 and ending on May 31, 2013. 3.2 Renewal. This Agreement shall be automatically renewed for an additional period of two (2) years, unless either the City or the Company gives written notice to the other 50075477.2 4' party of the termination of this Agreement at least ninety (90) days' prior to the expiration of the initial term of this Agreement. 3.3 Right of Termination. The City or the Company shall have the right to terminate this Agreement for any or no reason, upon delivery of thirty (30) days' prior written notice to the other party. Further, either party may terminate this Agreement immediately at any time for cause or for failure of the other to comply with the terms, representations, and conditions of this Agreement. ARTICLE IV GENERAL 4.1 Entire Agreement. This Agreement embodies the entire understanding of the City and the Company as to the subject matter hereof and there are no further or other agreements or understandings, written or oral, in effect between the parties as to the subject matter hereof. The drafting, execution, and delivery of this Agreement by the parties have been induced by no representations, statements, warranties, or agreements other than those expressed in this Agreement, and, except as expressly provided to the contrary, the provisions of this Agreement are for the benefit of the parties hereto and not for the benefit of any other person(s) or entities. 4.2 Waivers. A waiver, alteration, or modification of any of the provisions of this Agreement will not be binding unless in writing and signed by authorized representatives of the City and the Company. 4.3 Severability. A determination by a court of law of competent jurisdiction that a section or any part of a section of this Agreement is void, invalid, or unenforceable for any reason, shall not render void, invalid, or unenforceable any other section or any part of any other section of this Agreement. 4.4 Governing. Except to the extent governed by United States law that preempts state law, this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Proper venue for any dispute or litigation shall be only in Guadalupe County, Texas. 4.5 Notices. All notices, requests, demands, or other communications affecting the terms of this Agreement shall be in writing, and shall be deemed to have been duly given if delivered in person, by facsimile or within twenty-one (21) days after deposited in the United States mail, postage prepaid, certified, with return receipt requested. Notice shall be addressed to the parties as follows: The City: City of Schertz, Texas 1400 Schertz Parkway Schertz, TX 78154 Attention: City Manager The Company: Roadrunner Towing 100 Pecan Schertz, TX 78154 50075477.2 4.6 Counterparts. This Agreement may be signed in counterparts, all of which together shall be one document. 50075477.? IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first set forth above. CITY OF SCHERTZ By: Don Taylor, C ~ anager ROADRUNNER TOWING By: Authorized Officer 5007477.2 S- l EXHIBIT A Non-Consensual Towing Rates- Light Duty Portion of Fee Accident Rates Fee Charged to Owner Paid to City Towing Rate $85.00 $10.00 Dollie Use $30.00 Off Road Recovery $50.00 Labor Time $75.00 per man/per hour Waiting Time $65.00 per man/per hour Additional Trucks & Labor $75.00 per man/per hour Clean-up (glass, debris) $25.00 (required by state law) Mileage Rate $3.00 per mile Police Rate Arrests, Abandoned, Stolen, Parking $65.00 $10.00 Mileage Rate $3.00 per mile Hazardous Material Clean Up Hazardous Material Clean Up Storage Rates Vehicles less than 25 feet Vehicles 25 feet or longer Impoundment fee Calculated after completion of clean up, remediation, testing, and disposal + 25% $20.00 per day + tax $35.00 per day + tax $20.00 5007477.2 A-1 Non-Consensual Towing Rates- Medium Duty Portion of Fee Accident Rates Fee Charged to Owner Paid to City Towing Rate $225.00 $20.00 Driveshaft Removal $35.00 Off Road Recovery $125.00 Labor Time $150.00 per man/per hour Waiting Time $100.00 per man/per hour Additional Trucks & Labor $125.00 per man/per hour Clean-up (glass, debris) $125.00 Mileage Rate $4.00 per mile Police Rate Arrests, Abandoned, Stolen, Parking $150.00 $20.00 Mileage Rate $4.00 per mile Hazardous Material Clean Up Hazardous Material Clean Up Calculated after completion of clean up, remediation, testing, and disposal + 25% Storage Rates Vehicles less than 25 feet $20.00 per day + tax Vehicles 25 feet or longer $35.00 per day + tax Impoundment fee $20.00 50075477.2 A-2 Non-Consensual Towing Rates -Heavy Duty ~sccident Rates Fee Charged to ®s~rner Towing Rate Labor Rate Waiting Time Additional Heavy Duty Wrecker & Labor Additional Small Wrecker & Labor Additional Equipment (tractors, forklift, front-end loaders) Mileage Rate Clean-up (glass, debris) Police Rate $525.00 $375.00 per man/per hour $250.00 per man/per hour $425.00 per hour $125.00 per hour $350.00 per hour + 25% $5.00 per mile $120.00 Arrests, Abandoned, Stolen, Parking $425.00 Mileage Rate $5.00 per mile Hazardous Material Clean Up Hazardous Material Clean Up Calculated after completion of clean up, remediation, testing, and disposal + 25% Storage Rates Vehicles less than 25 feet $20.00 per day + tax Vehicles 25 feet or longer $35.00 per day + tax Impoundment fee $20.00 Portion of Fee Paid to City 10% 10% 10% 10% 10% 10% 10% 10% $50.00 50075477.2 A-3