HomeMy WebLinkAbout3/19/2018 - AGREEMENTS TRANSPORTATION NETWORK COMPANY OPERATING PERMIT AGREEMENT
PALM SPRINGS INTERNATIONAL AIRPORT
CITY OF PALM SPRINGS
THIS TRANSPORTATION NETWORK COMPANY OPE,R&A ING PE5AGREEMENT
("Agreement") is dated, executed, .and effective this day of 2019, by and
between the City of Palm Springs, a California charter city and municipal corporation
("City") and Lyft, Inc., a Delaware corporation ("Permittee"). By and through this
Agreement, City hereby grants nonexclusive rights and privileges at Palm Springs
International Airport ("Airport") upon the terms and conditions set forth below, and
Permittee hereby accepts said rights and privileges subject and according to each and all
of said terms and conditions.
RECITALS
WHEREAS, the City owns and operates the Airport in Palm,Springs, California,
sometimes referenced as "PSP," for the convenience of the general public, and has the
right to control commercial activities at the Airport, and the means and methods of ingress
and egress to and from the Airport; and
WHEREAS, Permittee provides prearranged transportation services for
compensation using an online-enabled application or platform, such as a smart phone
app, to connect drivers using their personal,vehicles with passengers, lawfully operating
a "Transportation Network Company" as that term is defined by California Public Utilities
Code Section 5431(c) and Section 16.02.15 of the Palm Springs Municipal Code
("PSMC"); and
WHEREAS, Permittee has secured a permit to operate as a TNC through the
California Public Utilities Commission ("CPUC"), maintains its CPUC permit in good
standing, and operates in compliance with all applicable federal and state laws; and
WHEREAS, Permittee contracts with and/or employs drivers ("Drivers")to use their
personal vehicles to transport passengers, pursuant to terms and conditions negotiated .
and agreed by and between Permittee, as a lawfully regulated TNC, and each Driver, with
rides arranged through Permittee's online enabled application, and will derive substantial
commercial benefit from Drivers' use of the Airport; and
WHEREAS, the City originally authorized TNCs to operate at the Airport in
adopting Ordinance 1906 on November 16, 2016, but no TNCs applied for or secured a
permit pursuant to the terms of Ordinance 1906; and
WHEREAS, on January 24, 2018, the City introduced Ordinance No. 1950
amending various sections of PSMC Chapter 16.37, .modifying and clarifying City's
permitting and regulatory authority with respect to each TNC seeking to operate at the
Airport; and
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ORIGINAL BID
AND/ R ILAGREEMENT
WHEREAS, Ordinance 1950 replaces all'language in Section 16.37.010(c) from
the Palm Springs Municipal Code (''PSMC"), eliminating the City's requirement of random
testing of TNC Drivers for drugs and/or alcohol, and noting that"[e]ach TNC shall,comply
fully with all CPUC licensing requirements, including without limitation the CPUC's TNC
"zero tolerance intoxicating substance policy," adopted in Decision 13-09-045, Safety
Requirement "d," also referenced as CPUC Rulemaking 12-12-011, filed December 20,
2012, issued on September 23, 2013, as said requirements and policy may be amended
or replaced from time to time; and
WHEREAS, on February 5, 2018, the City Manager executed regulation A2018-
01, suspending enforcement of the City's requirement of random testing, pending the
effective date of Ordinance 1950; and
WHEREAS, Permittee wants to provide ground transportation services on Airport
property, and in consideration of City's issuance of an operating permit in accordance
with PSMC Section 16.37.010(a), Permittee desires to enter into this Agreement, and to
accept and be bound by the terms and conditions set forth herein and in PSMC Chapter
16.37, as well as any and all regulations issued by the City Manager pursuant to PSMC
Section 16.37.005(c) as reflected in Ordinance No. 1950. Operator is further willing to
take steps necessary and appropriate to ensure that Permittee's Drivers comply with the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, City and Permittee mutually agree as follows:
OPERATING PERMIT AGREEMENT
1. Definitions:
A. "Agreement" has the meaning attributed above in the introductory paragraph
to this Agreement.
B. "Airport" has the meaning attributed above in the introductory paragraph to this
Agreement.
C. "City" has the meaning attributed above in the introductory paragraph to this
Agreement, but also includes City's elected and appointed officials, employees,
contractors, and authorized agents for purposes of Section 11.0
D. "City Manager" means the City Manager of the City of Palm Springs or
designee.
E. "Claims" has the meaning reflected in Section 10.A. of this Agreement.
F. "Commercial Vehicle Permit Fee" means. the charge established for
commercial vehicles operating at the Airport.
G. "CPUC" has the meaning attributed above in the recitals in this Agreement.
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H. "Cruising" means the unnecessary circling of the terminal area or proceeding
along indirect paths by a ground transportation vehicle or driver.
I. "Driver" has the meaning attributed above in the recitals in this Agreement.
J. "Geo-fence" means the virtual barrier that defines the Geo-fence Tracking
Area.
K. "Geo-fence Tracking Area" means a virtual area with a digital boundary
derived from a computer software program, using a global positioning system
(GPS) or radio frequency identification (RFID), which area is coextensive with
the Airport's geographic-area, as reviewed and approved by the City Manager,
including but not limited to the terminal roadway, and which program provides
real-time notification to the Airport of all TNC Driver activity within the area.
L. "Passenger Drop-off" means each instance wherein one of Permittee's
Drivers drops-off a passenger on Airport Property.
M. "Passenger Pickup" means each instance wherein one of Permittee's Drivers
picks up a passenger on Airport Property. The specified passenger TNC
Pickup area was incorporated in Ordinance 1906 and is reflected in regulation
A2018-01.
N. "PSMC" has the meaning attributed above in the recitals in this Agreement.
O. "Released Parties" has the meaning reflected in Section 10.A. of this
Agreement.
P. "Transportation Network Company" or. "TNC" means an organization
whether a corporation, partnership, sole proprietor, or other form, operating in
California with a CPUC-issued permit and subject to California Public Utilities
Code Division 2, Chapter 8, Article 7 "Transportation Network Companies," and
required to comply with all applicable regulations promulgated and enforced by
the CPUC, which organization uses an online-enabled application or platform
to connect passengers using their personal vehicles..
Q. "TNC Mobile App" means a TNC's online enabled application to connect
passengers with TNC's approved TNC Drivers.
R. "TNC Services" means the services provided by Permittee and/or its Drivers
to passengers while on Airport Property.
S. "TNC Staging Area" means one or 'more areas designated by the City
Manager where unassigned TNC Drivers may stage for an Airport passenger
pick-up assignment coordinated through the TNC Mobile App. The TNC
staging area shall include posted regulations for use of the area. City reserves
the right to charge a fee for use of the staging area in an amount determined
by the City Manager at his sole discretion.
T. "TNC Vehicle Trade Dress" or "Trade Dress" means distinctive signage or
a display on a Driver's vehicle that makes the vehicle in question readily .
identifiable, within fifty (50) feet, as being operated by Permittee as a TNC.
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Vehicle Trade Dress shall include but not be limited to symbols and/or signs on
vehicle doors, roofs, and/or grille which can be readily identifiable up to fifty
(50) feet. .
U. "Trip Fee" means the City approved fee charged to Permittee for each
Passenger Pickup and each Passenger Drop-off made by its Drivers; the Trip
Fee is based upon the fact that all TNC Passenger Pickups and Drop-offs are
pre-arranged.
V. "Waybill" means a digital memorial of prearranged transportation services in
the possession.of a TNC Driver via Permittee's Driver software that shows.-Ahe
name of a passenger to be transported and the pickup and drop off location for
that passenger's.ride.
2. Use Purpose Defined:
The permit conferred via this Agreement authorizes Permittee's provision of TNC
Services.
A. Passenger .Drop-offs shall be made at the curbside vehicle zones as
designated by the City Manager.
B. Passenger Pickups shall be made at the location identified in City regulation
A2018-01 or such superseding regulation as may be adopted and approved by
the City Council.
3. Term of Permit:
Upon receipt of all required documentation, this permit shall become effective on
April 15th 2019, and shall continue on a thirty (30) day, month-to-month basis, until
revoked or cancelled as hereinafter provided. The term of this permit will not
exceed one (1) year, April 30, 2020.
4. Reporting Requirements:
A. Permittee shall provide monthly reports, in an Airport approved format, that
identify ALL Driver activity at the Airport. The monthly report will be due-on the
15th day of the following month and shall distinguish between pickups and
drop-offs made on Airport Property, and shall include the, dates and time of
each.
B. Geo-fence: Prior to commencement of operation under this Permit, Permittee
will establish an approved Geo-fence Tracking Area acceptable to the City
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Manager, and demonstrate to City that Permittee's TNC Mobile App tracks ALL
Driver activity at the Airport. Available Driver information shall include:
a. Driver identity and color photo;
b. Vehicle year, make, model and color picture and license plate number;
c. Certificates of insurance;
d. Copy of Driver's prearranged Waybill;
e. Date and time of pickup or drop-off; and
f. Whether Driver is picking up or dropping off a passenger
C. Upon request, Permittee shall provide to the Airport electronic records,
supporting monthly reports required by section 4.A. hereof, and any other
details to substantiate total activity at the Airport.
D. All reports and other records to be submitted pursuant to this section 4 shall be
mailed to the following address:
Palm Springs International Airport
3400 E. Tahquitz Canyon Way, Suite 1
Palm Springs, CA 92262
Or in an electronic format approved by the Airport.
5. Vehicle Requirements:
A. TNC Vehicles must be in compliance with all current CPUC rules and
regulations governing TNCs as well as Airport rules and regulations, and all
regulations issued by the City Manager in relation to PSMC Chapter 16.37.
B. Approved TNC Vehicle Trade Dress must be applied AT ALL TIMES while
providing TNC Services on Airport Property or within the Geo-fence Tracking
Area.
6. Operating Requirements:
A. Each Driver's TNC Mobile App shall be activated AT ALL TIMES while
providing TNC Services on Airport Property or within the Geo-fence Tracking
Area.
B. Upon request from Airport Operations Staff, law enforcement personnel, or any
City employed or authorized traffic enforcement officer, all Drivers will
immediately comply with requests including but not limited to requests to see
proof of insurance, license and registration, a prearranged Waybill, or
confirmation that TNC Mobile App is activated while on Airport Property.
C. Drivers are prohibited from sharing a vehicle or TNC Mobile App Driver ID with
unauthorized drivers.
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D. City may prosecute any failure to comply with any term or condition of this
Agreement, or any Airport rule or regulation, or any regulation issued by the
City Manager in relation to PSMC Chapter 16.37:
a. administratively, in accordance with the relevant provision of PSMC
Section 16.37.040,
b. criminally, as a misdemeanor or infraction pursuant to PSMC Section
1.01.140, or
c. in civil court pursuant to PSMC Section 1.01.240.
E. Prior to commencement of operation under this Permit, Permittee shall provide
Airport with a photograph of Permittee's Trade Dress along with a written
description of the location of designated Trade Dress on TNC vehicles.
7. Consideration for Permit:
As consideration for the operating permit conveyed via this Agreement, Permittee
hereby agrees to:
A. Comply with all applicable federal, state and local legislative and regulatory
requirements, and maintain in good standing at all times during the term of this
Agreement a TNC Permit issued by the CPUC.
B. Comply with the terms of this Agreement, the terms of the Airport rules and
regulations and fee schedule, and any regulation issued by the City Manager
in relation to PSMC Chapter 16.37.
C. Establish a City Manager approved Geo-fence Tracking Area as described in
Section 4 of this Permit prior to initiation of TNC Service.
D. Submit to City, a monthly fee calculated by multiplying the number of
Passenger Pickups and Passenger Drop-offs by Permittee's drivers taking
place during a given calendar month by the Trip Fee. The Trip Fee shall be
established by the City and listed in the Airport's fee schedule. The Trip Fee is
set at three dollars ($3.00) per Passenger Pickup and three dollars ($3.00) per
Passenger Drop-off as of the date of this Agreement's execution. Passenger
Pickup and Drop-off fees may be amended from time to time by the City.
E. Acknowledge that each monthly fee calculated in accordance with Section 7.D.
is due and payable to the City'not later than 5:00 p.m. on the fifteenth (15th)
calendar day of the following month, e.g., the monthly fee for April is due at or
before 5:00 p.m. on May 15. There is no grace-period for monthly fees
hereunder.
F. Acknowledge that In the event of a Geo-fence Tracking Area System failure
exceeding five (5) days in duration, City shall calculate Permittee's monthly fee
based upon the highest monthly number of Passenger Pickups and Drop-offs
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made during the twelve (12) months prior to the month when any such system
failure takes place.
G. Promptly resolve Geo-fence Tracking Area System failures. Failure to resolve
failures within twenty-four (24) hours may result in a suspension or termination
of the permit provided per this Agreement.
H. Make all payments in lawful money of the United States, free from all claims,
demands, set-offs, or counter claims of any kind against City.
I. Acknowledge that late payments of any monthly fee hereunder will cause City
to incur costs not contemplated by this Agreement, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but are not limited
to, administrative processing of delinquent notices, increased accounting costs,
and lost interest income.
J. Acknowledge that late payments of monthly fees or of any other sum due to
City which is not timely received, but is received by the City at any time during
the first month thereafter, will be subject to a late charge of one and one-half
percent (1.5%) of the payment past due, plus one hundred dollars ($100.00)
added to the payment. The total sum of any past due monthly fee and the late
charge as described in this Section 7.J. shall become due and payable to City
at 5:01 p.m. on the twentieth (20th) day of any month.
K. Acknowledge that an additional charge of one and one-half percent (1.5%) of
any past due payment, excluding late charges that have already accrued, shall
be added for each additional month, or portion thereof, when a past due
payment remains unpaid.
L. Agree that such late charges under any provision of this section 7 represent a
fair and reasonable estimate of the costs that City would incur by reason of
Permittee's late payment, and that acceptance of such late charges, and/or any
portion of the overdue payment by City, shall in no event constitute a waiver of
Permittee's default with respect to such overdue payment or prevent City from
exercising any of the other rights-and remedies granted hereunder, including
the right to terminate the permit issued pursuant to this Agreement.
M. Agree that ALL Permittee's obligations under this Permit apply to those driving
on its behalf as well as to instances where a driver has an active TNC Mobile
App but fails to have required TNC Vehicle Trade Dress; instances where a
driver has an active TNC Mobile App but fails to have a passenger match;
instances where a driver allows an unauthorized person to drive the Driver's
vehicle'while using Driver's TNC Mobile App or Driver ID.
N. Provide City, prior to issuance of the permit issued per this Agreement, with a
true and correct copy of its current CPUC Permit.
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O. Certify that it has met all CPUC Requirements , including but not limited to:
a. Every TNC Driver having a valid California Driver License and valid
automobile insurance meeting the minimum requirements for the State
of California;
b. Completion of a Department of Motor Vehicles record check and criminal
history check of each TNC Driver, in compliance with State Law and/or
CPUC Regulation as applicable; and
c. Completion of all vehicle safety inspections in compliance with State
Law and/or PUC Regulations as applicable.
8. Books and Records, Audit:
Permittee shall maintain for a period of four (4) years, or in the event of claim by
City, until such claim of City for payments hereunder shall have been fully
ascertained, fixed and paid, separate and accurate daily records of ALL Driver
activity with respect to Permittee's TNC Services on Airport Property, and showing
detail of all business done or transacted in, on, about, or from or pertaining to
Permittee's operations at Airport, and Permittee shall enter all receipts arising from
such business in regular books of account and all entries in any such records or
books shall be made at or about the time the transactions respectively occur. In
addition, Permittee shall maintain monthly and annual reports of ALL driver activity
on Airport Property, using a form and method as is determined by City Manager.
Such forms and methods shall be employed by Permittee throughout the term of
this Permit. Such books and records shall be maintained at Permittee's principal
place of business unless otherwise permitted by City in writing.
Upon City's written request, Permittee shall make available immediately at Airport
any and all books, records and accounts pertaining to its operations under this
Permit. The intent and purpose of the provisions of this section are that Permittee
shall keep and maintain records which will enable City to ascertain, determine and
audit, if so desired by City, clearly and accurately, ALL driver activity on Airport
Property and that the form and method of Permittee's reporting will be adequate
to provide a control and test check of all revenues derived by Permittee under this
Permit.
Should any examination, inspection, and audit of Permittee's books and records
by City disclose an underpayment by Permittee in excess of five percent (5%) of
consideration due, whether in any monthly fee due or otherwise, Permittee shall
promptly pay City the amount of such underpayment and shall reimburse City all
costs incurred in the conduct of such examination, inspection, and audit. In the
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event that City deems it necessary to utilize the services of legal counsel in
connection with collecting the reimbursement for such examination, inspection,
and audit, then Permittee shall reimburse City for reasonable attorney fees and
litigation expenses as part of the aforementioned costs incurred.
Not later than ninety (90) days after the annual anniversary of the commencement
of this Permit, when required by City Manager, Permittee shall furnish to City a
report, certified by Permittee to be true and correct, of ALL Driver activity on Airport
Property and the revenue derived by Permittee from its operations permitted
hereunder. Said report shall not be made public except as required by law.
Permittee shall furnish City with such other financial or statistical reports as the
City, from time to time, may reasonably require. Permittee's duty to assist City in
City's completion of any audit hereunder shall survive two (2) years beyond the
termination date of this Agreement.
9. Other Charges and Fees:
Permittee shall pay and agrees to be ultimately responsible for, all other charges,
penalties or fees occasioned with Permittee's operations or activities on or about
the Airport Property, including but not limited to fines associated with Driver
violations of City ordinances, the terms of this Agreement, Airport rules and
regulations, or any regulation issued by the City Manager in relation to PSMC
Chapter 16.37.
10.Indemnity:
A. To the fullest extent permitted by law, Permittee hereby agrees to indemnify,
protect, defend, with counsel and experts reasonably acceptable to City, and
hold harmless the City, together with each and all of City's elected and
appointed officials, employees, agents, and volunteers (collectively, the
"Released Parties"), from and against any and all third party claims,- suits,
demands, expenses, liabilities, losses, lawsuits and other proceedings,
judgments, causes of action, liens, 'claims of liens, damages, penalties,
litigation, defense or court costs, and expenses, including attorneys' and expert
witnesses' fees and costs, whether incurred in litigation, settlement
negotiations, or in any other legal context ("Claims"), including but not limited
to personal injury to, or deaths of persons, or damage to property proximately
caused by, or arising from, or relating-to (i) any negligent act or omission by
Permittee or any of Permittee's drivers, (ii) any act or omission by Permittee or
any of Permittee's drivers that is a violation of any City ordinance, any Airport
rule or regulation, or any regulation issued by the City Manager in relation to
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PSMC Chapter 16.37, or (iii) any activity or thing done or permitted by
Permittee, and/or any of Permittee's drivers at the Airport or related to TNC
Services provided by Permittee or any of Permittee's drivers pursuant to this
Agreement, (iv) any breach or default, by Permittee or any of Permittee's
drivers, in the performance of any obligation to be performed under the terms
of this Agreement, or(v) any act or negligence of Permittee, or any of its drivers,
arising from or relating to the provision, possession, or consumption of alcoholic
beverages or drugs, except for any such Claims resulting primarily from City's
gross negligence, or willful misconduct. Permittee further agrees to waive all
rights of subrogation against.the City and.its Released Parties. The provisions
of this Section 10.A. do not apply to any damage or loss caused solely by the
negligence of the City, or any of its Released Parties. In the event Permittee
fails to perform as to its indemnity obligations, whether independently or in
cooperation with any of Permittee's drivers, Permittee agrees to be fully
responsible according to the terms of this Section 10.A. The obligations set
forth in this Section 10.A. shall survive the termination of this Agreement in
perpetuity.
B. Permittee agrees that its obligation to indemnify City and its Released Parties
applies at all times to "TNC Services" provided on Airport Property or within the
Geo-fence Tracking Area.
C. Each party hereto shall give to the other prompt and timely written notice of any
Claim made or suit instituted coming to its knowledge which in any way, directly
or indirectly, contingently or otherwise, affects or might affect either and each
shall have the right to participate in the defense of the same to the extent of its
own interest.
11.Insurance:
A. Prior to the commencement of TNC Services hereunder, Permittee will provide
City with proof that Permittee is in compliance with all insurance required for a
TNC under state law, e.g., pursuant to Assembly Bill 2293 and any successor
legislation that may be adopted during the term of this Agreement.
B. If at any time Permittee fails to obtain or maintain in force the insurance required
herein, City may immediately terminate this Agreement and the permit
conferred hereunder in an exercise of City's sole discretion.
C. If any Claim is filed with Permittee also naming the Airport and/or City, or if any
lawsuit is instituted against Permittee also naming the Airport and/or City,
arising from or relating to TNC Services at the Airport, Permittee shall give
prompt and timely notice thereof to City. Notice shall be deemed prompt and
timely if given within thirty(30) days following the date when Permittee receives
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a Claim or ten (10) days following the date of service of process of a lawsuit to
Permittee.
12.Multiple TNC Authority Drivers:
Permittee acknowledges that some Drivers may provide services to more than one
(1) permitted TNC, and that such drivers .may have multiple TNC Mobile Apps
active at one time. In light of this fact, Permittee agrees that its responsibilities to
provide insurance coverage and indemnify, as provided in this Permit apply at all
times when "TNC Services" are being provided on Airport Property. For purposes
of Permittee's Insurance and Indemnification obligations, Permittee
specifically agrees that the Waybill associated with the last passenger drop-
off controls until a vehicle without a new matched passenger has exited
Airport Property.
13.Security Deposit:
Permittee agrees that upon execution of this Permit, it will, at its own expense,
deliver to City Manager a surety bond or bonds in the amount of five thousand
dollars ($5,000.00) payable to City, naming "City of Palm Springs/Palm Springs
International Airport" as obligee and issued by a surety company. or companies
acceptable to City and in such form as approved by City, which surety bond or
bonds may be renewed annually and shall be maintained in full force and effect
during the term of this Agreement at the expense of the Permittee, to insure the
faithful performance by Permittee of all the covenants, terms and conditions of this
Permit, inclusive of but not restricted to the payment of all considerations provided
therein. The surety company issuing said bond or bonds shall give the City
Manager notice in writing, by registered mail, at least sixty (60) days prior to an
anniversary date of its intention not to renew said bond or bonds.
In lieu- of such surety .bond or bonds, Permittee may deposit with City an
Irrevocable Letter of Credit, Treasury Bonds of the United States of America,
Certificates of Deposit, Cash or a Certified Check, in a form acceptable to City, in
the agreed amounts as security for faithful performance by Permittee as herein
above provided and Permittee may have the right to reserve to itself interest
payable on said United States Bonds or Certificates of Deposit.
If Permittee fails to pay a Monthly Permit Fee, other charge or penalty or otherwise
defaults with respect to any provision of this Permit, City may use, apply or retain
all or any portion of the Security Deposit for the payment of sums due. If City
applies all or any portion of the Security Deposit, Permittee, within ten (10) days
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after demand therefor, shall deposit other security acceptable to City Manager in
an amount sufficient to restore the Security.Deposit to the full amount thereof.
City reserves the right to adjust the amount of the Security Deposit to reflect
changes in operations or changes in Trip Fees established by City. Within thirty
.(30) days after notification of any change in required Security Deposit amount from
City, Permittee shall submit to City any additional Security Deposit as may be
required.
14.Right of Access:
During the existence of the permit conferred by this Agreement, and subject to
Permittee's compliance with all applicable federal, state, and local laws and
regulations, and subject to the Airport's rules and regulations, and all regulations
issued by the City Manager in relation to PSMC Chapter 16.37, Permittee, its
Drivers, agents, licensees, and business invitees, shall possess the right of ingress
to and egress from and about the Airport by authorized vehicles bearing valid
Trade Dress and with an activated TNC Mobile App, as required by Permittee's
operations hereunder; provided that such right shall not be exercised in a manner
and to such extent as to impede or interfere with the operation of the Airport by
City, its lessees, or other TNCs who are permittees of City.
15.Waybills:
All Driver activity on Airport Property shall be documented by a Waybill prepared
prior to Driver entry to the Airport pickup area. The Waybill shall state the
passenger's name, the number of persons in the party, the location of the pickup
or drop-off, and the time of the scheduled pickup or drop-off.
Permittee's Drivers are required to immediately present the mobile device that
contains the prearranged Waybill to any Airport operations staff, law enforcement,
or traffic enforcement officer who requests to inspect it.
16.Default by Permittee:
Permittee shall be in default under this Permit if:
A. Permittee or its Drivers fail to keep, perform or observe any of the terms set
forth in this Permit; or
B. Permittee shall fail duly and punctually to pay the fees or to make any other
payment required hereunder, when due to City; or
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C. The interest of Permittee under this Permit shall be transferred, without the
approval of the City, by reason of death, operation of law, assignment, sub-
lease, or otherwise, to any person, firm, or corporation; or
D. Permittee shall voluntarily abandon,.desert, or fail to use its rights hereunder;
or .
E. Permittee shall use or give its permission to any person to use any portion of
Airport, used by Permittee under this Permit, for any illegal purpose.
17.City Remedies:
If Permittee or its Drivers default on any of the covenants, terms and conditions
herein contained, City may elect to:
A. Allow the permit conferred by this Agreement to continue in full force and effect
and to.enforce all of the City's rights and remedies hereunder, including,without
limitation, the right to collect fees as they become due together with late
charges as provided above in Section 7;
B. Terminate the permit conferred by this Agreement as herein provided without
prejudice to any other remedy or right of action for arrearages of fees;
C. Direct that defaulting Driver's authority to operate under this Permit and on
Airport Property be cancelled.
Upon such termination by City all rights, powers, and privileges of Permittee
hereunder shall cease and Permittee shall have no claim of any kind whatsoever
against City, or any members thereof or their employees or agents by reason of
such termination or by reason of any act by City incidental or related thereto. In the
event of the exercise by City of such option to terminate, Permittee shall have no
right to or claim upon any improvements or the value thereof, which may have
been previously installed by Permittee in or on the Airport's premises.
City will not have deemed to have terminated this Permit in the absence of service
of written notice upon Permittee to that effect.
Revocation or termination of this Permit may be appealed to the Administrative
Appeals Board pursuant to PSMC Chapter 2.50. Permittee's appeal shall
specifically state the grounds upon which the appeal is based.
The exercise by City of any remedy provided in this Permit shall be cumulative and
shall in no way affect any other remedy available to City under law or equity.
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18.Monetary Damages:
In the event City elects to terminate the permit conferred by this Agreement,
Permittee shall pay to the City an amount equal to the sum of:
A. All amounts owing at the time of termination on account of breach of any term,
covenant or condition of this Agreement, including but not limited to unpaid fees
plus interest thereon on all such amounts from the date due until paid at the
rate of one and one-half percent (1.5%) per month plus one hundred dollars
($100.00);
B. Any other amount to compensate City fully for all detriment approximately
caused by Permittee's failure to perform its obligations hereunder or which in
the ordinary course would likely result therefrom.
19.No Waiver of Subsequent Breaches or Defaults:
The failure of City at any time to insist upon a strict performance of any of the
terms, conditions, and covenants herein shall not be deemed a waiver of any
subsequent breach or default in the terms, conditions, and covenants herein.
20.Prohibition Against Advertising:
No advertising or solicitation of "TNC Services" shall occur on Airport Property
except with the written approval of the City Manager.
No advertising or solicitation, including the posting of room rates or transportation
fares, shall be allowed on any of Permittee's or Driver's vehicles, unless
specifically approved in writing by City Manager; except that a vehicle may display
Permittee's authorized TNC Trade Dress.
21.Prohibited Conduct:
The following activities are prohibited while operating under the permit conferred
by this Agreement:
A. Violating any term or obligation found herein;
B. Picking up or discharging passengers or their baggage at the terminal in areas
other than those designated for such purpose;
C. Leaving the vehicle unattended;
D. Failing to give, upon a passenger's request, the driver's correct name, the
name of the Permittee, or the Driver's TNC identification number or vehicle
number, if any;
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E. Failing to immediately comply with a request by Airport staff, law enforcement,
or a traffic enforcement officer to see proof of insurance, license and
registration, prearranged Waybill, or confirmation that TNC Mobile App is
activated while on Airport Property;
F. Littering on Airport;
G. Providing false information to authorized Airport Operations staff, a law
enforcement, or traffic enforcement officer;
H. Operating on Airport Property without an activated TNC Mobile App or
approved TNC.Trade Dress-,
I. Waiting for a passenger match while on Airport Property in any location apart
from the Staging Area, for example, Airport parking lots, parking structures,
roadways, cell phone lots, or commercial hold lots;
J. Solicitation of passengers on Airport Property without a prearranged Waybill,
K. The possession of any alcoholic beverage, or any illegal or dangerous drug or
narcotic, while operating a vehicle on Airport Property or while the TNC Mobile
App is on;
L. Use or being under the influence of any alcoholic beverage, or any drug, while
operating a vehicle on Airport Property or while the TNC Mobile App is on;
M. Failing to operate a vehicle in a safe manner as required by the California
Vehicle Code;
N. Failing to comply with posted speed limits and traffic control signs;
O. Use of profane or vulgar language directed to or at passengers, public, TNC or
commercial drivers, Airport tenants, or Airport staff;
P. Any attempt to bypass the TNC Mobile App and solicit cash payment for a
Passenger Pickup or Passenger Drop-off;
Q. Any solicitation for or on behalf of any hotel, motel, club, nightclub, or
restaurant;
R. Any solicitation of any activity prohibited by the Penal Code of the State of
California;
S. Operating a vehicle which is not in a safe mechanical condition or which lacks
mandatory safety equipment as defined in the California Vehicle Code;
T. Disconnecting any pollution control equipment;
U. Engaging in any conduct or activity intended to or apparently intended to ask,
implore or persuade a passenger to alter a previously chosen' mode of ground
transportation or specific ground transportation operator, except as otherwise
provided by contract or permit with the Airport;
V. Cruising. A TNC or ground transportation vehicle will be considered to be
cruising if the vehicle or Driver in question .is unnecessarily cycling through
Airport or terminal roadways without a passenger, or proceeding along indirect
paths; or
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W. Violating any provision of PSMC Chapter 16.37.
22.Compliance with Rules and Regulations:
Permittee and its Drivers shall abide by and conform to all laws, governmental
orders, and rules and regulations, including any future amendments thereto,
controlling or in any manner affecting the use or occupancy of Airport Property.
Permittee and its Drivers shall abide by and conform to all Airport rules and
regulations, operational,..notices or bulletins now and hereafter in force and effect.
23.Changes to P.U.C. Decision, Regulation or Law:
Permittee understands and agrees that the CPUC may modify its decision from
time to time and/or a local state or federal statute or regulations may be enacted
that affect the requirements for TNC operation in the State of California.
Subject to the defined term "TNC Services" and the insurance provisions found in
this Permit, the terms of this Permit shall be modified to be consistent with all such
decision modifications and/or local, state and federal regulations.and statutes and
all such Permit modifications shall be self-executing.
24.CPUC Complaint Address.
All ground transportation service vehicles subject to CPUC oversight must post, in
plain view to all passengers, the following information:
CPUC Complaint Intake Unit-Transportation Enforcement Section
Protection and Safety Division
505 Van Ness Avenue, 2nd Floor
San Francisco, CA 94102-3298
1-800-894-9444
The CPUC website for complaints follows:
hftp://www.epuc.ca.gov/carriercomg!qint
There is a complaint email address at ciu intake(d)-cpuc.ca.gov or call 1-800-894-
9444 and ask for a form to be mailed. The intake unit will be happy to answer any
questions complainants have about the complaint process.
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25.Non-assignability:
The permit conferred by this Agreement is not assignable, in whole or in part.
26.Revocable Permit:
The permit conferred by this Agreement is revocable at any time, with or without
cause, in the absolute discretion of the City Manager. Such revocation shall be
accomplished by giving twenty four(24) hours' prior written notice to the Permittee.
Should Permittee, at any time, fail to provide or maintain the insurance or faithful
performance bond required under this Permit, and then the City Manager may, by
twenty four (24) hours' prior written notice, revoke the permit conferred by this
Agreement. Permittee may terminate this Permit by giving thirty (30) days' prior
written notice to the City Manager. This Permit may be cancelled by the mutual
written consent of the parties at any time without the aforesaid written notice.
27.Section Headings:
The section headings contained herein are for convenience in reference and are
not intended to define or limit the scope of any provision of this Permit.
28.Severability:
In the event any term, covenant, or condition herein contained.is held to be invalid
by any court of competent jurisdiction, such invalidity shall not affect any other valid
term, covenant, or condition herein contained.
29.Fees:
Current fees applicable to Permittee's TNC Services are as follows:
Annual Company Fee $279.00
Pickup Fee $ 3.00
Drop-off Fee $ 3.00
Fees charged to TNCs operating at the Airport, and adjustments to same, reflect
capital improvement and staff expenditures arising from and related to safe and
efficient operation of commercial transportation activities, and the City's
commitment to allow accommodation of passenger demand. Permittee
acknowledges that there may be future changes in fees directed at City recovery
costs associated with these expenditures. Commercial vehicle fees, including
TNC fees, will be charged as established by the City and listed in the Airport's fee
schedule.
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30. Covenant against Discrimination.
In connection with its performance under this Agreement, Permittee shall not
discriminate against any employee or applicant for employment because of actual
or perceived race, religion, color, sex, age, marital status, ancestry, national origin
(i.e., place of origin, immigration status, cultural or linguistic characteristics, or
ethnicity), sexual orientation, gender identity, gender expression, physical or
mental disability, or medical condition (each a "prohibited basis"). Permittee shall
ensure that applicants are employed, and that employees are treated during their
employment, without regard to any prohibited basis. As a condition precedent to
City's lawful capacity to enter this Agreement, and in executing this Agreement,
Permittee certifies that its actions and omissions hereunder shall not incorporate
any discrimination arising from or related to any prohibited basis in any Permittee
activity, including but not limited to the following: employment, upgrading, demotion
or transfer; recruitment or recruitment advertising; layoff or termination; rates of
pay or other forms of compensation; and selection for training, including
apprenticeship; and further, that Permittee is in full compliance with the provisions
of PSMC Section 7.09.040, including without limitation the provision of benefits,
relating to non-discrimination in city contracting.
31.Corporate Authority.
Each of the undersigned represents and warrants that (i) the party for which he or
she is executing this Agreement is duly authorized and existing, (ii) he or she is
duly authorized to execute and deliver this Agreement on behalf of the party for
which he or she is signing, (iii) by so executing this Agreement, the party for which
he or she is signing is formally bound to the provisions of this Agreement, and (iv)
the entering into this Agreement does not violate any provision of any other
Agreement to which the party for which he or she is signing is bound.
32.Notices.
Any notice, demand, request, consent, or approval that either party desires or is
requested to give to the other party pursuant to this Agreement shall be in writing
and either served personally, or sent by certified mail, postage prepaid. Such
matters shall be addressed to the other party at the following addresses:
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When to the City: When to the Permittee:
City of Palm Springs Lyft, Inc.
Attn: City Manager Attn: Brian Kramer
3200 E. Tahquitz Canyon Way 185 Berry Street, Suite 5000
Palm Springs, CA 92262 San Francisco, CA 94107
With an electronic copy to:
legalnotices(aD.lyft.com
Notices may also be transmitted to any other addresses as either party may
designate to the other by fifteen (15) days' prior written notice.
Notice shall be deemed effective upon receipt and shall be deemed received upon
delivery if personally delivered, or received forty-eight (48) hours following deposit
in the mail, if sent by mail.
33.Assurances required bV the Federal Aviation Administration.
Permittee shall, at all times during the life of the permit conferred in this Agreement,
comply with the provisions of the "Airport Sponsor Assurances" and any
subsequent revisions, updates, or amendments thereto. The provisions of these
assurances may change during the term of this Agreement, and those changes
will be incorporated in this Agreement without the necessity of a formal
amendment. City is not responsible for notifying Permittee of any changes to the .
assurances. Permittee is required to contact the Federal Aviation Administration
for any updates or revisions. The assurances are available as a PDF document on
line at the following URL:
https://www.faa.gov/airports/aip/grant assurances/media/airport-sponsor-
assurances-aip.pdf
34.Confidentiality.
Information that Permittee makes available to City pursuant to this Permit, and
which is clearly marked as confidential, is deemed to be confidential and
proprietary information of Permittee ("Confidential Information"). Unless otherwise
required by applicable law, the City shall not disclose Permittee's Confidential
Information to third parties, except to those employees, of Information that
Permittee makes available to City pursuant to this Permit, and which is clearly
marked as confidential, is deemed to be confidential and proprietary information of
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Permittee ("Confidential Information"). Unless otherwise required by applicable
law, the City shall not disclose Permittee's Confidential Information to third parties,
except to those employees, officers, directors, affiliates, agents, and consultants
of City who are required to have the information in order to carry out the terms of
this Permit.
Permittee recognizes that books and records regarding its operations under this
Permit may be subject to disclosure under the California Public Records Act (Cal
Govt. Code §§'6250 el seq.) ("CPRA") or other relevant law. Upon receipt of a
CPRA request for records that include any record clearly and conspicuously
designated by Permittee as "Confidential Information," the City will make
reasonable efforts to notify Permittee prior to any disclosure so that Permittee has
an opportunity to assert claims of exemption and to seek court intervention to
prevent disclosure, if necessary. Where Permittee asserts the records are exempt
from disclosure and the City accepts Permittee's request not to disclose
"Confidential Information" as exempt under the CPRA or any other authority,
including without limitation production pursuant to a subpoena, Permittee agrees
to defend, indemnify and hold the City harmless from and against any and all
Claims arising from or relating to any City's refusal to disclose such Confidential .
Information to any third party based on Permittee's claim that the records are
exempt from disclosure or production. In the instance of any Permittee's
performance of any duty pursuant to this Section 34, City shall select its own legal
counsel and control the litigation and settlement of any Claim. Permittee's duties
pursuant to this Section 34 shall survive this Agreement in perpetuity.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
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"CITY"
City of Palm Springs
t
Date: 1 v2 S By.
David H. Ready, Esq., Ph.
City Manager
APPROVED AS TO FORM: ATTEST
By: By:
nthony J. M jia, M
City Attorney City Clerk
IMVIAGER ADDITIONAL SIGNATURES FOLLOW
"PERMITTEE"
"TNC Operator"
Date: 4/15/2019 185 Berry Street, Suite 5000
San Francisco, CA 94107
Address
By: �
Its: (title) Sr. Director, City Partnerships
By:
Its: (title)
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