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Home My WebLink Aboutdocuments distributedRING & GREEN ATTORNEYS AT LAW 3435 OVERLAND AVENUE LOS ANGELES, CALIFORNIA 90034-5405 ROBERT A. RING RINGGREEN.COM FAX 13101 226-2459 SUSAN H. GREEN TELEPHONE (310) 226-2550 May 14, 2018 R. Carey Davis, Mayor John Valdivia, Council Member Fred Shorett, Council Member Henry Nickel, Council Member Bessine L. Richard, Council Member James L. Mulvihill, Council Member Virginia Marquez, Council Member Benito J. Barrios, Council Member Re: San Bernardino Police Towers Danny's Towine. Wilson Towing; City Towing. Haves Towing, and Armada Towin Mgy 16 2018, Council Meeting Agenda item 27: Continued Public_ rt _ l - __1 1___ T ___f_ T___._-_ Dear Mayor and Council Members: As attorney for the above San Bernardino Police Towers, I represented these local companies in their good -faith contract negotiations which resulted in city Res. 2011 - 80 and their respective contracts which run through July 2021. These companies have kept up there end of the deal and invested the appropriate time and equipment to properly service the. requirements of San Bernardino. A deal is a deal. Notwithstanding, it came my attention last March that your former city attorney, Mr. James Penman, was lobbying the city quite aggressively on behalf of Pepe's Towing ("Pepe's") to get them a position as a police rotation tower. I believe this is an inappropriate conflict of interest and said so in my letter of March 23, 2017 to the appropriate persons in the city. (Exhibit A attached) It next came to my attention that Mr. Penman on behalf of Pepe's filed a protest and appeal November 10, 2017 and an amended appeal on November 27, 2017 demanding an investigation and that a police towing contract open up for Pepe's. Your city attorney wrote letters dated October 19, 2017 and November 13, 2017 confirming that San Bernardino's police towers and my clients were all in compliance regarding their tow agreements with San Bernardino and that there was no open position for Pepe's. (Exhibit B attached) The hearing on Pepe's appeal, Agenda item 27 this Wednesday, May 16 keeps getting continued month after month after month. This is inappropriate. Why isn't this matter being heard? San Bernardino Mayor and Council Members May 14, 2018 page, 2 Moreover, on March 7, 2018, the City Council passed a resolution in blatant derogation of fundamental fairness and my clients' written agreements with San Bernardino. The staff report literally and perhaps inadvertently misquoted Res. 2011 - 80 (the basis of my clients' contracts) in order to claim a pretense to establish an additional tow carrier position for the tow rotation. The March 7, 2018 staff report and draft resolution as passed states, "WHEREAS resolution No. 2011 - 80 provides for one tow carrier for 35, 000 residents of the city; and". (Emphasis added) In fact, resolution and no. 2011 - 88 states in its first paragraph, "WHEREAS... A population ratio was created permitting one tow carrier to operate within the city for 40, 000 residents;..." (Emphasis added) Someone got it wrong. Without an appropriate factual basis, the staff report goes on to assert the city's population is 216,239.216,239 divided by 35,000 is 6.18 just a little over 6. This is the purported justification for adding an additional tow company. However, 216,239 divided by 40,000 is just under 6 which supports the current companies. Even using the wrong population number of 35,000,6.18 companies does not mean 7. Just as legally important, these "WHEREAS" provisions are just that, recitals and general statements and not the actual legal conditions of the contract which follows. As your city attorney confirms, my clients are in compliance with their respective contracts and accordingly have made the appropriate investment in employees and equipment agreed to back in 2011 and since. It is more than noteworthy that absolutely no objective need for an additional tow company exists or has been presented by anyone. Accordingly, it is hereby requested that: 1. The City of San Bernardino immediately withdraw from all efforts to add an additional rotation tow carrier; and 2. The City of San Bernardino fully and finally conclude the Appeal by Pepe's Towing. All rights are specifically reserved. I petition for a writ of mandate to the Superior Court Very cc: City Manager City Attorney IU will hold in abeyance any sur response to the above. EXHIBIT A RING Sc G13EEN ATTORNEYS'AT LAV .3435 --OVERLAND. :AVENUE LOS ANGELES, CALIFORNIA 90034-:5403 ROBERT A. RING RINGG_REET(.COM - FAX- (310) 226-24S9 SUSAN -H. GREEN TELEPH.ON;E (31.01.-226-2.550 March 23, 2017" SAN4-1 Mr. Mark Scott March 23; 2017 Page 2 Towing: The. California Supreme Court'.reaffirmed.disqualification for even -the 'appearance of impropriety'. which 'is overwhelmingly present in this matter- : Please see :People v. Conner (1983) 34 Cal.3d 141, 147-48. Accordingly, demand is hereby made that the City of San Bernardino does not negotiate with `Mr. Penman_ on behalf of, Pepe's Towing : as. a direct,.result of this . conflict of interest: Please'immediately contact the unde I if yo ;have any questions. -All rights are specifically reserved; v y. R��fes't' A RARsab FASANAt ai n ftrhardiw ltrl.wpd . EXHIBIT B • y.... .. 1 = •a�=rE .`y` 3g �a, �J..r2 �,,,-S� rbc + �1�� •�' ` :f Office of the City Attorney j Gary D. Saenz, City Attorney October 19, ?017 VM EA�i't1IL TUS. MAIL Tarnes P. Penman, Esq. MILLIGAN, BESWICK LEVINE & KNOX, LLP t 4-17 Pard Street, Suite 201 Redlands, CA 92474 ME: Application of Pepe's Towiug for SBPD Tow Rotation List Dear Mr. Penman, ,Ls you should be aware, the California Vehicle Code authorizes cities to regulate involuntary tow services. In 2008, under your office at the time, the City created a tow services franchise agreement that provided for one tow company per 35,000 people in the City. As of 2016, the City's population is 216,239. This.equates to six to,,,,., carriers t,,hich the City currently has tow services abraements with. I 20I 1 the existing six carriers' agreements were extended for a 5 year tenn. In 2016, the existing six carriers' agreements were extended for another 5 year term.. It is the City's intention to open up the tow rotation to all qualified carriers and the expiration of the tern. in 2021. Although the City appreciates that your client, Pepe's Towing, has been attempting to be added to the tow rotation, there has not been any openings on the 'list to allow the addition of e new carrier. The tow services agreements allow for assigiunent of the agreerrient to another entity that purchases the tow carrier's business. This does not create an opening and require the City to open tip the position to any other carvers. %A.GRIDCR'%tisc Maxw &. Lectc-rs`•Pepe's Po%%,ingJ.Pcnnian.rtr.wpd 290 North D Street, San Bernardino, CA 924011 P: 909-384-5355 1 F: 909-384-52381 www.sbcity.org Letter to: James F. Penman, Esq. Date: October 19, 2017 Pale: While „•e understand that Pepe's feels that it has been dmaged, it is the City's Position that Pepe's has no legal right to be added io the tour rotation list. If a position: opens tip prior to 2021. Pepe's and all other qualified carriers tvill have the opportunity to submit an application for the position. cc: Andrea N iller, City )`Manager Jarrod Burguan, Chief of Police Gary D. Saenz, City Attorney Sincerely, f � J.:xti ria Crider Chief Ass City Attorney S:\GKtt)ER%Mit-c Manus & Le1:crS\Pepe'STo«in;.l.Pcnmxna.tr.%vpd 290 North D Street, San Bernardino, CA 92401 P: 909-384-5355 1 F: 909-354-52381 mmsticit+l.oro ' •`` %}sem ,_: �d8na. r'v _!.licersz, Office of the City Attorney ( Gary D. Saenz, City Attorney November 13,2101", James F. Penman, Esq. NIMLIGAN, BESWICK LEVINE & KNOX, LLP i447 Ford Street. Suite 201 Redlands, CA 92474 RB: Application of Pepe's Towing for SB?D Tow Rotation hist Dear Mr. Penman, We are in receipt of your letter dated October 20, 2017 requesting clarification of the lack of vacancies on the tow rotation list. The City inspects each of the tow tamers that are currently on the tow rotation list. The last inspections occurred on March 2, 2017 and each carrier met the minimum requirements of the Tow Services Agrcoment. All of the tow carriers are currently in compliance and the Police Department has not found any violations that would warrant removal from the tow rotation list. Again, if a position opens up before the current Tow Services Agreements expire, your client and all other qualified carriers will have the opportunity to submit ;in application for the positron. Sincerely, .A4n r`f - Crider %' Chief A"sistant City Attorney W: Andrea Miller, City Manager Jarrod Bur man, Chief of Police Gary D. Saenz, City Attorney 8:16RIDEWI'aw Services arcnicacs l'epe'sTowSn�::.Pe��naw.Lr..?.�spd 290 Noah 0 Street, San Bernardino, CA 92401 1 P: 909-384-5355 1 F: 909-384-523$1 wvn+v.sbdty.org