2003F37-TOWINGORDINANCE NO. t~..,~-' ~"- ,.~ 7
AN ORDINANCE
PROVIDING THAT THE CODE OF ORDINANCES, CITY OF
SCHERTZ, TEXAS BE AMENDED BY CREATING CHAPTER 11,
WRECKERS AND TOW TRUCK FRANCHISE FOR
NONCONSENT TOWING OF DISABLED OR WRECKED
VEHICLES; IMPOSING PROVISIONS AND CONDITIONS
RELATING TO THE EXERCISE OF SAME; AND PROVIDING
FOR PENALTIES FOR VIOLATION THEREOF; REPEALING
ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT
WITH THIS ORDINANCE; AND ESTABLISHING AN
EFFECTIVE DATE.
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 a contract wrecker service provider in
the City of Schertz, Texas; and
WHEREAS, This ordinance shall be known and may be cited as the WRECKER
FRANCHISE ORDINANCE of the City of Schertz, Texas;
NOW, THEREFORE, B E I T ORDAINED B Y T HE CITY COUNCIL O F T HE CITY
OF SCHERTZ, TEXAS'
THAT the code of ordinances, City of Schertz, Texas be amended by the addition
of the following new Chapter 11'
"Chapter 11. Wreckers and Tow Truck Franchise for Non-Consent
Towing of Disabled or Wrecked Vehicles
Section 1. Purpose.
This Chapter is to provide guidance relating to the award of a franchise for the non-
consent towing of disabled or wrecked vehicles. It is found to be in the public interest
20073862.1
that the City of Schertz makes adequate provision for these services for public safety. The
ordinance awarding a franchise for these services shall include all provisions required in
this Chapter, and any additional provisions deemed necessary to protect the interest of the
citizens of the City of Schertz. The effect of this Chapter is to treat the non-consent
towing of wrecked and disabled vehicles as a public utility.
Section 2. Defined Terms.
The following words, terms, and phrases, when used in this Chapter, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
Consent tow means any tow conducted with the permission of, or at the direction of, the
vehicle's legal or registered owner or such owner's authorized representative. Except as
set forth in the definition of "no consent tow" below, a tow will be considered a consent
tow where the owner is able to give consent.
Franchise means the tow truck owner or tow truck business designed by ordinance of the
City to be a franchisee under this Chapter.
Motor vehicle means any device in or by which any person or property is or may be
transported or drawn upon a public highway, except devices moved only by human
power or used exclusively upon stationary rails or tracks, and shall include trailers and
semi-trailers.
No consent tow means any tow conducted without the permission of, or not at the
direction of, the vehicle's legal or registered owner or such owner's authorized
representative. Regardless of this definition, certified law enforcement officials may
control the scene of an accident in the manner they deem appropriate.
Owner means any person who holds the legal title of a motor vehicle or who has the legal
right of possession thereof or the legal right to use such vehicle.
Street means any public street, alley, public place, square or highway within the corporate
limits of the City.
Tow truck means any motor vehicle or mechanical device adapted or used to tow, winch
or otherwise move motor vehicles. A tow truck must be licensed by the state for such
purpose and meet the requirements of state law.
Tow truck business means the business of towing or removing disabled or wrecked
vehicles upon or from the public streets, regardless of whether the purpose of the towing
is to remove, repair, wreck, store, trade or purchase such disabled or wrecked vehicles.
Tow truck owner means any person engaged in the business of using a tow truck to tow,
winch or otherwise move a motor vehicle.
20073862.1 2
Section 3.
Grants of Authority
The City of Schertz has the authority to award franchises, and the award of such
franchise may be exclusive or non-exclusive. The award of a franchise will include
provisions allowing for the occupation or use of streets, alleys, and public ways within
the franchise area, to the extent necessary to accomplish the object of the franchise, for an
agreed upon consideration.
Section 4.
Indemnification, Insurance and Bonds.
a. The Franchisee 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 Franchisee, its agents, or employees in
the performance of services under this Chapter.
b. The Franchisee 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 this state and in the standard form approved by the
state board of insurance commissioners, with the insured provisions of such policy or
policies including the City as an insured, and 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 a tow truck of the Franchisee and providing that the amount of recovery on
each tow truck shall be in limits of not less than the following sums'
(1)
for damages arising out of bodily injury to or death of one person in any
accident, $100,000;
(2)
for damages arising out of bodily injury to or death of two or more persons
in any accident, $300,000;
(3)
for injury to or destruction of property in any one accident, $100,000;
Said policy or policies must be approved by the City Attorney, must be in full force
before the Franchisee commences service under this Chapter, and either the original
policy or policies or certified copies must be on file with the City Secretary of the City.
c. The Franchisee shall furnish an annually renewable bond to the City in the
amount of $ guaranteeing the faithful performance of obligations of the
Franchisee under terms of this Chapter, shall be in force before the Franchisee
commences service under this Chapter, and shall be subject to the following
requirements:
(1)
Such bond shall be executed by the Franchisee and one or more sureties
approved by the City Manager.
20073862.1 3
(2)
Either the bond or bonds or certified copies must be on file with the City
Secretary.
(3)
The bond or bonds must provide by endorsement that it cannot be
cancelled o r a mended b y t he bonding company p flor t o thirty (30) days
written notice to the City Manager.
(4)
The bond or bonds shall be conditioned that the Franchisee shall well and
truly observe, fulfill, and perform each term and condition of its franchise
and that, in case of any breach of condition of the bond, the amount
thereof shall be recoverable from the principal and surety thereof by the
City for all liquidated damages for the failure of the Franchisee to well and
faithfully observe and perform any provision of this Chapter, and for any
amount billed to the Franchisee by the City for the cost of the City's
performing or causing to be performed the Franchisee's obligation, as
provided herein.
Section 5.
Quality and Performance Standards
Any franchise awarded under this Chapter shall contain provisions relating to
both quality and performance. These provisions shall include, but not limited to, the
following:
ao
g.
h.
i.
j.
k.
1.
quality of service;
equipment and maintenance thereof;
standby equipment;
response times with provisions for 24 hour, seven day a week call
out;
provisions for coverage on holidays;
types and classes of equipment;
office hours, staffing and service records;
radio dispatch provisions;
back-up services;
complaint resolution;
content of records; and
storage facility provisions.
Section 6.
Lien for Towage and Storage Charges.
The Franchisee s hall b e entitled t o such 1 iens a s a re authorized b y state 1 aw t o secure
payment of charges for towage and storage of towed vehicles.
Section 7. Notice to Owner.
The Franchisee shall provide written notice of the possession of the vehicle to the owner
in accordance with the provisions of state law and must also provide to the City a copy of
20073862.1 4
the certified, return receipt requested, letter of notice sent to the owner and a copy of the
certification paper received by the Franchisee storage facility from the post office after
delivery of the certified notice.
Section 8.
Location of Franchisee; Fencing of Yards and Storage Areas.
a. The Franchisee must at all times during the term of its franchise have and
maintain sufficient vehicles in the City to fully perform its obligations under the
franchise. In addition, the Franchisee shall own or have access to an impound yard
within the City limits with sufficient volume to maintain vehicles in the Franchisee's
possession.
b. All yards and storage areas for damaged vehicles within the City which are
towed in by the Franchisee must meet the requirements of state law and shall be fenced in
order to provide protection for the vehicles in the Franchisee's custody.
Section 9. Penalties.
If the Franchisee, or any employee, agent, or representative of the Franchisee is found to
be in violation of any provisions of this Chapter, he shall be deemed guilty of a
misdemeanor and, upon conviction thereof, fined in an amount not exceed the amount
allowed to be imposed under state law.
Section 10. Franchise Fee.
The Franchisee shall pay the City a franchise fee as set forth in the ordinance awarding
such franchise. The ordinance awarding a franchise will contain specific provisions for
billing, collection, and payments to the City.
Section 11
Duration of the Franchise and Renewal Options
a. This Chapter and the fights, privileges, and authority hereby granted as to a
particular Franchisee shall take effect and be in force from and after final passage of the
ordinance naming such Franchisee, and shall continue in force and effect for a term of
one (1) year, or the first day of the next October, whichever occurs sooner, provided that,
within thirty (30) days after the second reading of the ordinance naming the Franchisee,
the Franchisee shall file with the City its unconditional acceptance of such Ordinance and
promise to comply with and abide by all of its provisions, terms and conditions. Such
acceptance and promise in writing shall be duly executed, and sworn to by an authorized
official of the Franchisee on behalf of the Franchisee before a notary public or other
officer authorized by law to administer oaths.
b. Any ordinance naming a Franchisee may be renewed for an additional period
of two (2) years unless either the City or the Franchisee gives written notification of the
termination of such franchise to the other at least ninety (90) days prior to the expiration
of the term of such franchise.
20073862.1 5
Section 12.
Severability, Compliance With Applicable Laws and Non-
Contestability by Franchisee.
a. If any section, subsection, sentence, clause, phrase or portion of this Chapter is
for any reason h eld invalid o r unconstitutional b y a ny court o f competent jurisdiction,
such portion shall be deemed separate, distinct, and independent provision, and such
holding shall not affect the validity of the remaining portions hereof.
b. At all times during the term of this Chapter, the Franchisee shall be subject to
all lawful exercise of the police power by the City and to such reasonable regulations as
the City shall from time to time provide pursuant to the exercise of such police power.
c. The Franchisee, by acceptance of this Chapter, expressly acknowledges and
accepts the right of the City to issue its franchise and further agrees to fully comply with
all appropriate government agencies of applicable jurisdiction.
Section 13.
Non-Transferability of Franchise Rights.
The Franchisee shall not sell, transfer, or assign its rights under this Chapter or the
ordinance awarding its franchise, or substantially all of its assets, to any other person or
entity without the prior written approval of the City Council, such approval not be
unreasonably withheld.
Section 14.
Complaints and Resolution.
a. Complaints from or by the public or a particular customer must be in writing
and mailed to the City Manager or designated representative for action.
b. Satisfactory resolution will be determined by the City Manager, who shall
notify the Franchisee. The Franchisee may appeal to City Council, which will make a
final determination.
Section 15.
Investigation and Public Hearing.
The City Council shall have full power to examine or cause to be examined at any time,
and at all times, the books, papers and records of the Franchisee with relation to the
operation of its services under this Chapter or the ordinance awarding its franchise. In
this connection, the City shall have the right, through its City Council, to take testimony
and compel attendance of witnesses or the production of books, papers and records and to
examine witnesses under oath and under such roles and regulations as it may adopt. If
any officer, agent, or employee of the Franchisee refuses to give testimony before said
City Council, City Council shall have the power to terminate the ordinance designating
the Franchisee.
20073862.1 6
Section 16. Notices
Where written notices are provided for in this Chapter, the same shall be sufficient to
notify the Franchisee if mailed by certified mail to the proper address as specified in the
ordinance designating Franchisee and shall be sufficient to notify the City if mailed by
certified mail to City Secretary, City of Schertz, P.O. Drawer I, Schertz, Texas 78154.
Section 17. Service Rates.
Rates for services provided by the Franchisee under this Chapter are contained in
Exhibit 1. Rates will remain in effect until changes are approved by City Council from
time to time. The Franchisee shall have the option of requesting a change in service rates
pursuant to Section 11.06 of the City Charter or according to state law, prior to the
second year, and every year thereafter, if the ordinance designating Franchisee is renewed
or extended.
Section 18. Publication Costs.
The Franchisee shall assume the costs of publication of the ordinance designating the
Franchisee as such publication is required by the City Charter and such is payable upon
the Franchisee's filing of acceptance of the ordinance designating the Franchisee.
Section 20. Penalties.
a. Any person, association, organization, company, or corporation who shall in the
City perform services described in this Chapter, without authority of a duly awarded
franchise and payment of required consideration, shall be cited by the appropriate City
agency, and shall be subject to a penalty not to exceed five hundred dollars ($500) for
each and every day such a service is unlawfully performed.
b. Any person, employee, association, organization, company, or corporation,
upon being named a Franchisee and awarded a franchise under this Chapter who fails to
provide the services described in this Chapter shall be cited by the appropriate City
agency, and is subject to a fine of five hundred dollars ($500) for each and every day
such service is not performed.
c. Any person, association, organization, company, or corporation, upon being
named a Franchisee and awarded a franchise under this Chapter who fails to comply with
the service standards described in this Chapter or the ordinance designating such
Franchisee shall be cited by the appropriate City agency, and is subject to a fine of five
hundred dollars ($500) for each and every failure to comply with service standards
described in this Chapter."
20073862.1 7
IIe
THAT all other ordinances and p arts o f ordinances i n conflict with t his ordinance a re
hereby repealed.
Approved on first reading theofq~ of ~ , 2003.
PASSED, APPROVED AND ADOPTED the ,~ day of .~e~~~,~, 2003.
ATTEST
Mayor~y~_~~~~lertz, Texas
City Secretary, City of Schertz, Texas
20073862.1 8
Exhibit 1. Schedule of Fees.
Impounds
$45.00
Accidents
$65.00
Heavy Duty (Class III)
$125.00 minimum
Heavy Duty Recovery
$250.00 per hour
Dollies
$25.00
Light Duty Recovery
$60.00 per hour
Impound Fee
$10.00
City Fee
Established in Ordinance naming Franchisee
Storage Fees
$15.00 per day + tax
Notification Fee
$32.00
20073862.1 9
THE STATE OF TEXAS,
PUBLISHER'S AFFIDAVIT
County of Guadalupe
Before me, the undersigned authority, on this date personally appeared
',~
· .~r~,,,,~ c'?,-~:~ , known to me, who being by me duly
__
sworn, on his oath deposes and says that he is the Publisher of The Seguin Gazette-
Enterprise, a newspaper of general circulation, published in said county; that a copy of
the within and foregoing notice was published in said newspaper / _ time(s) before
the retum day named therein such publications being on the following dates-
~- o0~
VIDING- THAT
' CODE~ OF.", 'ORDI~
...... ~:'" TOWING OI~'~
and a newspaper copy of which is hereto attached.
Sv~m to and ~ubscribed before me this_ ~/~~day of
_, ~D., 2003.
Notary Public, Guadalupe County, Texas
THE STATE OF TEXAS,
PUBLISHER'S AFFIDAVIT
County o~ Guaclalupe
Before me, the undersigned authority, on this date personally appeared
\,
' ~""'"'v c,-~,., . . '_ , known to me, who, being by me duly
sworn,.on his oath deposes and says that he is the Publisher of The Seguin Gazette-
Enterprise, a newspaper of general circulation, published in said county; that a copy of
the within and foregoing notice was published in said newspaper / time(s) before
the return day named therein, such publications being on the following dates:
SION$ AND c~.
and a newspaper copy of which is hereto a~ched.
Sworn t_o and subscribed before me this
~, A.D., 2003.
day of
Notary Public, Guadalupe County, Texas
CAROL ANN AVERY