HomeMy WebLinkAbout3/12/2018 - AGREEMENTS TRANSPORTATION NETWORK COMPANY OPERATING PERMIT AGREEMENT
PALM SPRINGS INTERNATIONAL AIRPORT
CITY OF PALM SPRINGS_:
THIS TRANSPORTATION NETWORK COMPANWRATIN.G PERMIT AGREEMENT.
("Agreement")-is:dated, executed,.and:effective 2019 by and between the City
of Palm .Springs; a California charter city and-:municipal corporation ("City") and Uber
Technologies, 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 .
P IVIC"); 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 Pennittee'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 1.6,:2016; but no TNCs.:applied for or secured a
permit pursuant to.the terms of Ordinance 1906; and .
:TNC Operating Permit Agreement
Page 1 of 20
- 1.8.18,Uber
ORIGINAL BID
ANC GR AGREEMENT
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
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. Permittee is further willing to
use commercially reasonable efforts 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
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3.8.18,Uber '
C. "City" has the meaning attributed above in the introductory paragraph:to this
Agreement...
D. "City Manager" means the City Manager of'.the City of Palm:-Springs or
esignee.. . .. ....
E. "Claims" has the meaning reflected in Section 10.A.of.this A9 reement p - . .
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 recitalsin:this Agreement:'
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 Trackin Area" means: a virtual area with digital boundary 9 9
derived from a.computer software program, using a global=positioning system:
GPS.or radio fre uenc identification RFID , which area is coextensive with
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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. 1.0.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.!`:'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'§ online enabled application .to connect
passengers with TNCs approved TNC Drivers.-
R.- "TINIC Services":means the services:provided by Permittee and/or its Drivers::
to passengers while on Airport Property.
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TNC Operating Permit Agreement
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S: :"TNC Staging Area°means one or more areas designated by the City Manager,
where unassigned TNC Drivers may stage for,an Airport passenger pickup
assignment coordinated:through the TNC.Mobile App. The TNC staging area
.:shall include posted:regulations for use.of the area.
T. °TNC Vehicle Trade Dress" or."Tra.de:Dress" means.distinctive signage or a-
display on a Driver's vehicle that makes the: vehicle in question: readily
identifiable, within, fifty- (50) feet in.daylight hours, as being -operated .by
Permitted as a:TNC. Vehicle Trade Dress shall include but not be limited Jo
symbols:and/or signs on vehicle doors, roofs,and/or grille which can:be readily
ident ifable up to fifty(50)fee t in daylight hours.Trade Dress arid location must
:be filed with:the.City Manager.
U. "Trip. Fee" means the City .approved fee charged to Permitted .for each
Passenger Pickup and each Passenger Drop=off made by its Drivers; he Trip
Fee is based upon,the fact that ail 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 the
name of a passenger to be transported and the pickup and drop-off location for
.
that passenger's ride:
Use Purpose-Defined
The permit conferred via this Agreement authorizes Permitted's provision of TNC
Services:
A. Passenger Drop-offs shall .be made at the: .cu rbside vehicle ,:zones as
designated by the City Manager.
B::Passenger Pickups shall be made_at the location identified in City regulation
A201.8-01.or such superseding regulation as may be adopted and approved by
the City Council.
3:. Term of Permit:
Upon recei t of all require documentation, this errnit shall become:effective on
P. P qu P
April 15,2019,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 from date.of issue, April 30,.2020.
TNC Operating Permit Agreement
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4: Reporting Reouirements:
A. Permittee shall provide:monthly reports, in:an Airport approved:format, that
identify Driver activity at the Airport as such. Permittee shall submit a statement:
of TNC Services based on Permittee's previous month's-activities, as permitted
herein.:The statement shallinclude a calculation of the Trip Fees due to Airport.
The monthly.report shall distinguish between pickups and drop-offs made.on.. .
Airport Property, and shall include the. dates of each: Permittee transaction
between.a Driver and passenger,.and the time;when the vehicle of;the Driver
in question enters and exits Airport Property:;;
B. Geo-fence: Prior to:commencement of operation.under.thiis:Permit, Permittee
will establish an approved Geo-fence:Tracking Area,acceptable-to the City
Manager,.and demonstrate to.the City that.Permittee,is cap'able:of tracking TNC
Services in real time.Availabie real time:information shall.include:
a. Driver name or unique identifier;:. .
b.. Vehicle license.plate:number;
c. Time vehicle.enters and departs Airport Property; and
- d. 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 A.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
submitted electronically or mailed to the following address: Palm:Springs
International Ai rport.3400 E.Tahquitz Canyon Way,Suite 1,. a m -CA
92262.
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'Managerin relation to PSMC Chapter 16.37.
B.:Approved TNC.Vehicle Trade Dress must be applied.A:ALL TIMES:while..
providing TNC Services:on Airport Property or;within the Geo-fence Tracking
Area.:
6. Or)erating 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:
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w.
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 a.TNC Mobile_App is activated while bnAirport Property.:.
C. Drivers'are prohibited:from_sharing a vehicle or:TNO Mobile App Driver ID with ...
unauthorized drivers.
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 P.SMG Section
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.:Trade
Dress and location must be:filed with the City Manager.
a.
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:! 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 b Permittee's-drivers taking
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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 maybe.amended from time to time by the City.
:
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E: Acknowledge that each monthly fee calculated in accordance with Section
7.D:is due and payable to the City not Iater.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; City-shall calculate Permittee's monthly,fee. based .
upon the highest monthly number:of Passenger Pickups and Drop-offs-mad e
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-of discovery.by Permittee 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 a 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-ahiount.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 arid 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 immediately;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 thathave 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 Permittee shall notify TNC. Drivers that they are required to review
and, at-all times follow the requirements under this Permit that apply to TNC
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Services,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 Drivers 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:
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'9 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.on:Airport Property,.and showing detail of all business done.or:transacted .
in,. on., -about,. or. from. or pertaining..to Perrnittee'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
employedby Permittee throughout the term of this Permit.Such books and'records
rincipal place of business unless otherwise
shall be maintained. at Permittee's p :
permitted by City in writing.
Upon City's:written request; and no more than.once:a year, Permittee=shall make
'a.vailable at a mutually agreeable time and location,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
TNC Operating Permit Agreement
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am
method of Permittee's reporting will beadequate to provide:a control and test:
check of all revenuesderived 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, Pe:rmitfee shall
promptly'pay City.the.amount of such.underpayment and shall reimburse.City.all
costs incurred.in:the conduct of such:ezamination, inspection;"and audit. In t e
... 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 Perrnittee shall reimburse City for reasonable attomey fees and:
litigation.expenses-as part of the aforementioned costs:incurred.
Not later than ninety.(90).days after the annual anniversary of the commencemen . ..
of this Permit, when.required by City.Manager, Permittee shall furnish to.City a
report,certified by Permitted 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 exceptas required by aw.
Permitted;shall furnish City with:such other,financial or statistical report as the
_City, from time to-time;:may reasonably:require. Permittee'sduty to assist City in: ..
City's completion of any audit hereunder.shail 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 related to TNC Services::
10. lndemni
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, .. e
"Released Parties'); from. and against any-and all third party- claims; suits,
demands; expenses, Aabiliities, 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("Claims"),including:but not limited to personal injury
...
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to, or deaths of persons, or damage'to property proximately caused by;,or-
arising,from,or relating to ► any negligent-act or omission by Permittee or any
of Permittee's Drivers, or.by.a third party with Permittee's permission, (ii) any
_act or omission,by Permittee or any of Permittee's Drivers:that is a violation of
: .an Cit ordinance;.an .Ai ort rule or regulation, or.an regulation issued b
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the City-Manager in relation to PSMC Chapter 16.37, or (N) any breach or
default, by Permittee or any conduct.by a Driver; that is,inconsistent with.the.
-
operating requirements, or performance of any obligation to be performed
under the:terms of this Agreement, or (iv) any:act or negligence of:Permittee,
or.any :Driver, 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 (a) any:
.damage or loss caused solely: by;the negligence:of the.:City, or any. of its
Released Parties; or (b).any:allegation related.to the City's authority to enter
this Agreement or.City's enforcement of this Agreement. In the event Permittee ..
fails to perform _as to its indemnity:obligations, whether independently or in
cooperation with any 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..shalf survive the termination of this Agreement in perpetuity:and.
shall be contingent.upon City's-compliance with paragraph (C) of this,Section: .
10_As'used in Section.10of this Agreement; the:term "Driver"only refers to a
. ...
Driverwho is providing TNC Services:hereunder, or in-possession of a Waybill-
related to TNC.Se*Nices.
B. Permittee agrees that:its obligation to indemnify.City and its Released Parties
applies at all times to'`TNC-Services"provided::on Airport rty.p .Pro a or:within the
p. p. . ..
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 shall -
have the right to participate in the-defense of the same to the extent of its own
interest:
D. Permittee shall-have control over.the defense .and settlement of each such
Claim; provided- that Permittee will: not select: legal counsel, settle or
compromise any claim without Written consent of City, which consent shall not
be .unreasonably withheld, conditioned or. delayed. In addition; City shall
reasonably,cooperate in the defense:and settlement of a:claim.
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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 fora .
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 an ' Claim ,is filed with Permittee or: if: any: lawsuit is i stituted.against
n
y
Permittee arising from or relating to TNC Services at:the Airport, Permittee shall
give prompt and time) notice thereof to City._Notice-shall be deemed prompt
.: _.rn t P y
and.timely if given within ;thirty (30) days following the date when Permittee
receives a Claim or.ten (10)days following the date of service of process o :a ;
lawsuit to Permittee.
12.Multiple TNC Authoritv 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 ahis 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
TNC Operating,Permit Agreement
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Pagel0 say b 8�U er
Manager notice:in:writing, by registered:mail, at least sixty(60) days prior.to,an
anniversa date of its intention.not to renew said bond or bonds.
In: lieu of such sure bond or bonds Permittee ma deposit with i an: ...t .
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 onaaid United States-Bonds or Certificates of Deposit.
: .
j.
I.f 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 orretain
all or:any:portion of the.Security Deposit for the:payment of sums: due. If City
...
a lies all or an portion of the Security:Deposit; Permittee; within ten 10 days::-
P.P Y P. : . : Y
after demand therefor,:shall deposit other security acceptable to City Manager-in.
an amount'sufficient to restore he Security Deposit to the full amount.thereof.
City reserves the right'to adjust the: amount of the Security:Deposit to reflect'
changes in o erations or changes in Trip Fees established by City. Within thirty
9 P g.
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(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:Rictht 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 arid: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 Ai ort b
P rP Y. ..
City, its lessees, or other TNCs who are permittees of City.
15.Waybills:
Each Passenger.Pickup or Drop-off-on Airport Property-shall:be.documented.by a
Waybill, The Waybill shall state the passenger's name, the number of_persons in
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Page 42 of 20 . . . . .
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the party, the location of the pickup or drop-off, and the.time:of the scheduled
pickup ordrop-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:arid punctually to pay the fees or to make any other
payment required hereunder;when due to City; or
C.:The interest of.Permittee under thin Permit shall be:transferred, without the
approval:of the City, by reason of death,'.operation of law, assignment,
..sublease; or otherwise,:to any person,firm,:or corporation; or,: ,
D.: Permittee shall voluntarily abandon, :desert, or fail to use its rights hereunder;:
or
sp
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 anyother 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 orby reason of any:act by.City incidental or related thereto. In
event of the exercise by:City of such option to terminate, Permittee:=shall have no
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Page 13 of 20
3.8.18,Uber
right to or,claim:upon::any improvements'or the value.thereof; which may have
been previously'iinstalled by Permittee in or on the.Airport's premises.-..: -
aa
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:maybe appealed.to-the-Administrative. .
Appeals Board. pursuant to PSMC =Chapter 2.50. .:P.ermittee's appeal: shall
specifically:state the grounds upon which the appeal.is based.
The exercise by Cityof:any remedy:provided in this Permit shall be cumulative and
shall in noway affect'any other remedy available.to City under'law.or.equity:
18.MonetaryDamages:::
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%0) 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 of 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. efault in the terms,,conditions, and covenants herein.
20.Prohibition Against Advertising::
No advertising or solicitation of "TNC :Services" shall occuron Airport Property:
except with the written approvals 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:
TNC Operating.Permit Agreement
Page 14 of:20 _
3.8.18;Uber
specifically approved►n writing by City Mariager;except that a vehicle may display
Permittee's authorized TNC Trade Dress.
21.Pr6hibited 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;
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.1. 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 dots.
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 aicoholic'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,
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Page 15 of20
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: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
_.
S. Operating a vehicle: ich.is not in"a safe.mechanical condition or which lac
. California;
P 9
mandatory safety equipment as defined in the California Vehicle Code;:
T::.Disconnecting any,pollution control equipment,
lJ: :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,_ex cept:as:otherwise
Provided by contractor 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.
W. Violating any provision-of PSMC Chapter 1:6.37.
22.Compliance with Rules and Regulations::
Permittee and its Drivers:shall abide by and:conform to all laws, govemmenta
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 R U C Decision Redulation or Law:
Permittee understands and agrees:thatthe CPUC may modify its decision from
time to time and/or a local state or federal statute,or.regulations maybe enacted
that affectahe requirements for TNC operation in the_State of California.
Subject to the defined:term "TNC Services"and the insurance provisions found.1h
this Permit',:the terms of this Permit shall be modified to be consistent with all such
decision modifications and/or local, state and:fedetal regulations and statutes and
all:such Permit modifications shall be self-executing.
24.CPUC Complaints.
Permittee shall make.information available to passengers in its TNC Mobile,App
as to how passengers may complain about any aspect of TNC Services to the
CPUC:
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-Page 16 of 20
3.8.18,Uber
25.Non-assignability:
The
h 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 wit out:
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-anytime 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 permif 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:
6.1
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: q.
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 p y 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 . . _
capitai:irriprovement and staff ezpenditures:arising from and related o safe and
efficient operation. of commercial . transportation activities, and the. City's.
commitment .to allow accommodation: of passenger, demand. Permittee
q.
acknowledges that there may be future changes,in.fees directed.at City.recovery
costs:associated with these_expenditures. Commercial vehicle.fees,.including
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Page 17'of 20 ..
3.8.18,Uber
. . . - .
TNC fees,will be:charged as established by the City and listed in the Airport's fee
schedule:..: . .
30.Covehant 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 his: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 Section7.09.040,-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:ezecuting 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 igning, (iii)by to 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 whichhe 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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Page U of 20
3.8.18,Uber
When to the City: When to the Permittee:
City of Palm:Springs Uber Technologies, Inc..
Attn: City Manager . . . :Attn: David.Williams :.
3200 E.Tahquitz Canyon Way
Palm Springs, CA 92262: ....
Notices may also. be :transmitted -to any:other addresses as either party may
designatato he 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. :
33Assurances required by 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.
:lime at the followingURL:
hftps://www.faa.gov/6irborts/aip/grant assurances/media/aimort-sponsor-- .
assurances-aip.pdf
IN WITNESS.WHEREOF,the Parties-have executed this Agreement as of the dates stated
below:: _.
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Page 19 of 20
3.8.18,Uber
ps
"cry .
City of Palm Springs
Date: . : : . By:.:
David H. Ready; Esq., .D.-
City Manager
APPROVED AS TO FORM: ATTEST
By:
By:
vti.. ..
nthony J. ejia,
City Attorney City Clerk
APPROVM FV,r,"` �*v «PERMITTEE"AV
"TNC Operator"
Uber Technologies, Inc.
Date:: :
April 15, 2019:. 1455:Market Street, 4th Floor
San_Francisco, CA; 94103 ,
Address -
By:
To 9m Ma uire
"
Its: (title)..Director, Head of West US- Rides.
By; :. .:
Its: (title)
-TNC Operating permit Agreement
Page 20 of 20 .
3.8.18,Uber
i