1 CONTRACT No. _________
PERSONAL DELIVERY DEVICE (PDD) OPERATING AGREEMENT
BETWEEN THE CITY OF GLENDALE
AND
____________________
THIS AGREEMENT (“Agreement”), effective ________________, 20___ (“Effective Date”), is between the City of Glendale (“CITY”), a municipal corporation, and ____________________ (“OPERATOR”), a [(Name of State) corporation/ partnership/ limited partnership/ limited liability company/ a sole proprietor/ an individual] (collectively, “PARTIES” or individually, “PARTY”).
RECITALS
A. CITY is a public entity organized and existing under its Charter and the State of California’s Constitution.
B. OPERATOR represents that OPERATOR is, and will continue to be for this Agreement’s duration, a [(Name of State) corporation in good standing/ partnership/ limited partnership/limited liability company/a sole proprietorship/an individual.] [NOTE:
staff must verify corporate status/partnership/LLC and obtain proof.] C. CITY is authorizing Autonomous and Semi-Autonomous Personal Delivery Devices (PDDs, each a “Device”) that transport goods, products, or other personal items to operate in the CITY. CITY’s authorization is intended to enhance delivery options for residents and businesses, reduce short-distance vehicle trips, and advance CITY’s sustainability, accessibility, and economic vitality goals.
D. PDD technology may increase efficiencies with deliveries and reduce the number of vehicle trips and emissions associated with the delivery of goods from local establishments. It also supports small and local businesses by lowering delivery costs, improving service reliability, and expanding customer reach, particularly for residents with mobility limitations or without access to private vehicles.
E. OPERATOR acknowledges that its deployment and operation of PDDs in the CITY is contingent upon its compliance with this Agreement pursuant to Section 3 of Ordinance No. _____.
AGREEMENT
THEREFORE, in consideration of the PARTIES’ mutual promises, the PARTIES agree as follows:
1.0 INCORPORATION OF RECITALS
2 1.1. The Recitals constitute the factual basis upon which CITY and OPERATOR have entered into this Agreement. CITY and OPERATOR acknowledge the Recitals’ accuracy and, therefore, incorporate them into this Agreement.
2.0 TERM
2.1. This Agreement’s Term is one year, beginning on [DATE] and ending on [DATE] , unless this Agreement ends sooner according to the terms elsewhere in this document.
2.2 At the end of the Term, or upon earlier termination of this Agreement pursuant to terms elsewhere in this document, OPERATOR shall immediately remove all Devices from the CITY’s public rights-of-way, but in no event later than forty-eight (48) hours thereafter. Upon expiration or termination of this Agreement, OPERATOR shall immediately implement a “No Operating Zone,” discussed in Paragraph 3.4, in its system for the entire CITY.
3.0 OPERATIONAL REQUIREMENTS
3.1. Devices. OPERATOR may deploy and operate no more than 30 Devices, each equipped with Level 4 or a lower level of automation pursuant to the National Highway Traffic Safety Administration’s definitions for autonomous vehicles adapted to PDDs, within the CITY at any given time. An increase OPERATOR’s Fleet will not be considered during the first six months of this Agreement. CITY reserves the right to reduce OPERATOR’s Fleet at any time.
(A) After the first six months of this Agreement, OPERATOR may request CITY’s authorization to increase its Fleet based upon Device and utilization data supporting the increase. CITY may independently authorize OPERATOR to increase its Fleet absent such a request.
(B) OPERATOR shall inspect each Device in its Fleet at least monthly to each its proper working order.
3.2. Delivered Items. Devices shall only deliver food, groceries and other retail items from a local restaurant or store. Devices are prohibited from delivering contraband, cannabis, dry ice, hazardous materials, animals, and any other items prohibited by law.
3.3. Hours of Operation. Devices may operate 24 hours per day. CITY reserves the right to amend these Hours of Operation.
3.4. Geofencing. CITY reserves the right to designate No Operating Zones to prohibit Devices from parking or operating in the designated area. Once a No Operating Zone is designated, OPERATOR must demonstrate that Devices will adhere to geofenced No Operating Zones. CITY reserves the right to designate additional short- 3 term or ongoing No Operating Zones throughout the Term of this Agreement. (A) CITY will provide OPERATOR twenty-four (24) hours’ written notice of any No Operating Zone designated by CITY pursuant to Paragraph 14.12.
3.5. Location Detection. Prior to commencing operations in the CITY and at any time during the Term of this Agreement upon CITY’s request, OPERATOR must demonstrate that all Devices in its Fleet are equipped with location-detection technology that alerts OPERATOR to the location of each Device in real-time.
3.6. Idling. A Device shall be considered idle if it has been parked in the same location for more than two (2) consecutive hours without being utilized. Idle Devices shall be relocated or removed from the location immediately. If any Device is improperly parked in a manner than obstructs any accessibility device or facility, or renders any portion of the right-of-way inaccessible to persons with disabilities, then it shall be deemed idle and immediately relocated or removed from the location.
3.7 Accessibility. OPERATOR acknowledges and agrees that CITY’s public rights-of-way constitute a program or service under the Americans with Disabilities Act (“ADA”). OPERATOR shall perform any under this Agreement in a manner consistent with accessibility requirements of the ADA and all applicable California accessibility laws, and shall, at all times, ensure that OPERATOR’s Fleet and/or Devices are operated, parked, and serviced in a manner consistent with the ADA and state law accessibility requirements.
(A) OPERATOR shall implement and maintain a staff training program focused on ADA compliance and pedestrian interaction.
(B) OPERATOR shall participate with CITY in accessibility audits and promptly implement any corrective actions identified.
3.8. Obstructions Prohibited.
(A) No Device(s) shall create an obstruction hazard or obstruction in violation of the ADA.
(1) An “obstruction hazard” exists if (a) Device(s) reduces the width of the pedestrian clear zone to less than four (4) feet; obstructs pedestrian circulation to cause unsafe, overcrowed spaces or requires pedestrians to use an alternative, unsafe path of travel; or otherwise impedes or obstructs persons with disabilities from accessing or utilizing CITY rights-of-way or creates a safety hazard.
(2) An “obstruction” exists if (a) Devices(s) obstructs an accessible route or minimum clearance that the CITY or
4 another entity is required to provide under Section 504 of the ADA or Title 36, Part 1191, of the Code of Federal Regulations
(B) CITY or its designee may remove to any location within the City Limits at OPERATOR’s expense any Device causing an obstruction hazard or obstruction.
3.9. Response Times.
(A) Right of Way Malfunctions. In the case of a technological failure or other circumstance that causes a Device to come to a stop in a location other than property owned or lease by OPERATOR, the OPERATOR shall remove the Device no later than one (1) hour after the failure occurs. If the Device comes to a stop within a crosswalk or vehicular traffic right-of-way, OPERATOR shall remove the Device within twenty-five (25) minutes.
(B) Service Requests. If a service request is reported during OPERATOR’s normal business hours, OPERATOR shall respond to the service request within 30 minutes. If a service request is received outside of OPERATOR’s normal business hours, OPERATOR shall respond to the service request and take corrective action upon reopening for business; provided that, if service is requested due to a Device parked in a manner that obstructs any ADA accessibility device or facility, or renders any portion of the right-of-way inaccessible to persons with disabilities, OPERATOR shall ensure that the Device is moved as soon as possible, but not later than 30 minutes after the request is submitted.
3.10. Data Sharing. On a monthly basis and at any other time upon CITY’s request, OPERATOR shall provide CITY with data including, but not limited to, the following. CITY reserves the right to modify these data reporting requirements upon seven (7) days’ written notice.
(A) Number of Devices operating in the CITY at any one time; (B) Location of Devices and all available travel characteristics; (C) Trip origins, destinations, and duration;
(D) Purpose of each trip (e.g., delivery, roaming, returning to merchant); (E) Businesses utilizing Devices to complete deliveries; and (F) All complaints and services requests submitted by members of the public, the time in which OPERATOR responded to each complaint or service request, and the nature of corrective action taken.
3.11. Public Reporting. In addition to its data-sharing obligations 5 prescribed in Paragraph 3.9, OPERATOR shall provide public-facing transparency reports summarizing:
(A) Estimated reduction in vehicle delivery trips and associated emissions;
(B) Percentage of deliveries made for local businesses; (C) Results of any customer and merchant satisfaction surveys; and (D) Number and resolution status of accessibility-related incidents.
3.12. Data Privacy and Security. OPERATOR shall implement administrative, technical, and physical safeguards to ensure the confidentiality, integrity, and availability of data collected. Personally Identifiable Information (PII) shall not be stored or transmitted outside the United States. OPERATOR shall notify CITY within twenty-four (24) hours of any known data breach and cooperate fully with any investigation and all applicable privacy laws, including, but not limited to, the California Consumer Privacy Act (CCPA).
3.13 Public Safety. OPERATOR shall not deploy or operate any Device in a manner that creates a public nuisance under the Glendale Municipal Code or compromises public health, safety, or welfare, including the public use of, or access to, public rights-of-way. OPERATOR shall ensure that all Devices travel on sidewalks, in crosswalks and other appropriate pedestrian rights-of-way. OPERATOR acknowledges and agrees that pedestrians shall have priority over Devices on public rights-of-way.
3.14. Opt-Out Option. OPERATOR shall allow both merchants and customers to opt out of the use of PDD service.
4.0 DEVICE SPECIFICATIONS
4.1. Identification. OPERATOR shall affix to each Device it deploys and operates in the CITY:
(A) A unique identification number;
(1) OPERATOR shall not deploy a Device in the CITY with the same identification number as another Device contemporaneously deployed in the County of Los Angeles or another jurisdiction therein;
(B) OPERATOR’s name;
(C) A phone number and/or email address for OPERATOR that is monitored 24 hours per day; and
6 (D) Procedures by which members of the public may register complaints or make services requests to OPERATOR.
4.2. Location Tracking. All Devices deployed and operated in the CITY shall be equipped with a Global Positioning Satellite (GPS) tracker or other tracking technology capable of recording and transmitting the Device’s location on demand in decimal degrees up to at least four decimal places.
4.3. Lamps and Reflectors. All Devices deployed and operated in the CITY shall be equipped with always-on front and rear lights visible from a distance of at least 300 feet under normal atmospheric conditions at night. For the purpose of this paragraph, the term “at night” means from dusk until sunrise.
4.4. Brakes and Safety Features. All Devices deployed and operated in the CITY must have brakes and other-tamper resistant safety features.
4.5. Weight Limit. Any Device deployed and operated in the CITY shall weigh 287 pounds or less.
4.6. Speed Limit. OPERATOR shall ensure that none of its Devices, while deployed and operating in the CITY, exceed the maximum speed of five (5) miles per hour.
4.7 Accessibility Features. All Devices deployed and operated in the CITY shall be equipped with proactive accessibility features including, but not limited to, continuous visual alerts when in motion, high-contrast visual markings visible from all sides, including a high-visibility flag elevated 46” or higher, and predictable operating speeds and pathways.
5.0 DEPLOYMENT AND PARKING REQUIREMENTS
5.1. Deployment and Parking Plan. Prior to its deployment and operation of Devices in the CITY, OPERATOR shall submit for CITY’s approval a Deployment and Parking Management Plan identifying how Devices will be distributed and parked when not in use. At a minimum, OPERATOR’s plan shall:
(A) Require that employees or contractors responsible for moving Devices be familiar with the terms and conditions of this Agreement; (B) Provide that no more than four (4) Devices be deployed or parked on one CITY block at any time;
(C) Provide that OPERATOR regularly inspect Devices to ensure they are in good working order and remove Devices that are not in good working order prior to deployment in the CITY;
7 (D) Provide multiple independent mechanisms for members of the public to report safety, parking, or maintenance concerns and publicly promote the availability of such mechanisms;
(E) Describe how Devices will be distributed to maximum coverage and minimum empty return trips in alignment with CITY’s sustainability and economic vitality goals; and
(F) Enable OPERATOR to request modifications to its approved Plan upon written approval by the CITY, which shall not be unreasonably withheld.
5.2. Parking Prohibited. Devices shall not be parked as follows:
(A) On private residential property;
(B) In any vehicle parking space or tow-away zone that has not otherwise been leased or provided to OPERATOR for Device parking; (C) Within ten (10) feet of any transit stop, station, platform, or vehicle entryway;
(D) Within ten (10) feet of any accessible (ADA) parking space or zone (e.g., blue curb markings or striping)
(E) Within five (5) feet of, or in a manner that blocks access on foot or by wheelchair to, buildings, benches, parklets, transit information signs, crosswalk buttons, carb ramps, wheelchair ramps, handrails, and detectable warning surfaces; (F) In or blocking access to sidewalks, crosswalks, curb ramps, travelways, driveways, alleys, bicycle lane or paths; (G) Upon landscaping or vegetation; or
(H) Within five (5) feet of fire hydrants or emergency access points, including red curb markings.
6.0 ADVERTISING
6.1 Applicability. Advertisements may be affixed, wrapped, or otherwise displayed upon OPERATOR’s Devices deployed in the CITY in a manner consistent with this Paragraph 6.0. Digital advertising— an LED or screen-based display— upon Devices is not permitted under this Agreement.
6.2 Compliance with Law. Advertisements shall comply with Glendale Municipal Code Chapter 10.26 relating to Mobile Billboard Advertising Displays and all 8 other applicable law.
6.3 Reporting. OPERATOR shall report upcoming advertising campaigns to CITY not less than two (2) weeks before the campaign’s launch.
OPERATOR’s report shall include, but not be limited to, the total number of contemporaneous advertising campaigns and each campaign’s duration.
6.4 Payment. In addition to the payment prescribed in Paragraph 7.0, OPERATOR shall pay CITY four dollars ($4.00) per day per Device that displays advertising. OPERATOR shall remit payment related to each campaign not later than sixty (60) days after its conclusion.
6.5 Right of Refusal. CITY reserves the right to refuse allowing OPERATOR to display advertising on Devices that is obscene, false, misleading, or violates any provision of Glendale Municipal Code 10.26 relating to Mobile Billboard Advertising Displays or other applicable law. Any refusal shall have a content-neutral basis, which CITY shall provide OPERATOR in writing. OPERATOR may administratively appeal CITY’s refusal to the City Manager within forty-eight (48) hours, after which the City Manager shall provide CITY’s final determination within seventy-two (72) hours.
Upon a final refusal, OPERATOR shall have one (1) day to remove refused advertising or the Device(s) upon which it is affixed from the City Limits.
7.0 PAYMENT
7.1. Payment for Operation. OPERATOR shall make a nonrefundable annual payment to CITY of two thousand five hundred dollars ($2,500) for each ten (10) Devices that OPERATOR may deploy and operate in the CITY at any given time. For avoidance of doubt, OPERATOR may deploy and operate between one (1) and (10) Devices in the CITY for one annual payment of two thousand five hundred dollars ($2,500); OPERATOR may deploy and operate between eleven (11) and twenty (20) Devices in the CITY for one annual payment of five thousand dollars ($5,000); or OPERATOR may deploy and operate between twenty-one (21) and thirty (30) Devices in the CITY for one annual payment of seven thousand five hundred dollars ($7,500). (A) OPERATOR shall remit its non-refundable annual payment prior to deploying any Devices in the CITY pursuant to this Agreement.
7.2. Taxes. OPERATOR shall pay all applicable (federal, state, county, local, CITY) excise, sales, consumer use, possessory interest, or other similar taxes required by law that arising from OPERATOR’s deployment and operation of Devices in the CITY.
8.0 AUDIT BY CITY
8.1. During this Agreement’s Term and for a period of four (4) years after the expiration, cancellation, or termination of this Agreement, or any extension of it, 9 OPERATOR shall:
(A) Keep and maintain, in their original form, all records, books, papers, or documents related to OPERATOR’s performance under this Agreement; and (B) Permit CITY or its authorized representatives, at all reasonable times, to have access to, examine, audit, excerpt, copy, photocopy, photograph, or transcribe all records, books, papers, or documents related to OPERATOR’s performance under this Agreement.
9.0 PROPRIETARY RIGHTS AND PUBLIC RECORDS
9.1. Intellectual Property.
(A) If OPERATOR uses or incorporates patented, trademarked, or copyrighted work, ideas, or products— in whole or in part— into its operation, OPERATOR represents that:
(1) OPERATOR holds the patent, trademark, or copyright to the work, idea, or product; or
(2) OPERATOR is licensed to use the patented, trademarked, or copyrighted work, idea, or product.
(B) OPERATOR shall indemnify, defend (including OPERATOR’s providing and paying for legal counsel for CITY), and hold harmless CITY, its officers, agents, employees, and representatives from and against all liability, claims, suits, demands, damages, royalties, fines, penalties, costs, or expenses arising out of or alleging any infringement or misappropriation of a patent, copyright, trade secret, trade name, trademark, or other intellectual property right or proprietary right.
9.2. Public Records Act.
(A) OPERATOR acknowledges that this Agreement is a public record.
This Agreement, its Exhibits, and all documents produced under this Agreement are subject to the California Public Records Act (Government Code section 7920.000 et seq.), including its exemptions. OPERATOR acknowledges that CITY has no obligation to notify OPERATOR when a request for records is received.
(B) OPERATOR shall identify in advance all records, or portions of them, that OPERATOR believes are exempt from production under the Public Records Act. (C) If OPERATOR claims a privilege against public disclosure or otherwise objects to the records’ disclosure, then:
(1) OPERATOR may, when notified by CITY of the request, seek 10 protection from disclosure by timely applying for relief in a court of competent jurisdiction; or
(2) CITY may either decline to produce the requested
information, or redact portions of the documents and produce the redacted records.
(D) If OPERATOR fails to identify one or more protectable documents, in CITY’s sole discretion, and without its being in breach of this Agreement or its incurring liability to OPERATOR, CITY may produce the records— in whole, in part, or redacted— or may decline to produce them.
(E) OPERATOR shall indemnify, defend (including OPERATOR’s providing and paying for legal counsel for CITY), and hold harmless CITY, its officers, agents, employees, and representatives from and against all liability, claims, suits, demands, damages, fines, penalties, costs, or expenses arising out of or alleging CITY’s refusal to publicly disclose one or more records that OPERATOR identifies as protectable, or asserts is protectable.
10.0 CONFLICT OF INTEREST; CAMPAIGN CONTRIBUTIONS
10.1. Conflict of Interest. OPERATOR represents and certifies that:
(A) OPERATOR’s personnel are not currently officers, agents, employees, representatives, or elected officials of CITY; (B) OPERATOR will not employ or hire a CITY officer, agent, employee, representative, or elected official during this Agreement’s Term; (C) CITY’s officers, agents, employees, representatives, and elected officials do not, and will not, have any direct or indirect financial interest in this Agreement; and
(D) During this Agreement’s Term, OPERATOR will inform CITY about any possible conflict of interest that may arise as a result of any change in circumstances.
10.2. Campaign Contributions.
(A) OPERATOR shall fully comply with Glendale Municipal Code Section 1.10.060, which places limitations on OPERATOR’s ability to make campaign contributions to certain elected CITY officials or candidates for elected CITY office.
Specifically, Section 1.10.060 prohibits:
(1) A person— who has a contract with the City of Glendale, Glendale Successor Agency, or the Housing Authority of the City of Glendale and that contract is subject to approval by the City Council, Successor Agency, or Housing Authority― from 11 making a contribution to a City Council member, City Clerk, or City Treasurer, when the contract has a total anticipated or actual value of $50,000 or more, or a combination or series of contracts having a value of $50,000 or more; and
(2) A City Council member, Successor Agency member, or Housing Authority member from voting on a contract in which a person has provided a campaign contribution.
(B) OPERATOR acknowledges that even if the total payment due CITY pursuant to Paragraph 6.7 and 7.1 are less than $50,000, OPERATOR still may be subject to the campaign contribution limitations in Municipal Code Section 1.10.060, when:
(1) OPERATOR and CITY amend this Agreement in a manner
that increases the total payment due CITY to equal or
exceed $50,000; or
(2) CITY, Glendale Successor Agency, or the Housing Authority awards OPERATOR another contract which has a total
anticipated or actual value of $50,000 or more, or awards OPERATOR a combination or series of contracts which have a value of $50,000 or more.
(C) OPERATOR represents and certifies that:
(1) OPERATOR has read and fully understands the provisions of Municipal Code Section 1.10.060;
(2) OPERATOR will not: (a) make a prohibited campaign
contribution to an individual holding CITY elective office; or (b) otherwise violate Municipal Code Section 1.10.060; and
(3) OPERATOR shall timely complete, return, and update one or more disclosure or reporting forms that CITY provides.
11.0 INSURANCE
11.1. When OPERATOR signs and delivers this Agreement to CITY, and during this Agreement’s Term, OPERATOR shall furnish CITY with insurance forms that fully meet the requirements of— and contain provisions entirely consistent with— all of the “Insurance Requirements,” which are attached as “Exhibit A” (A-1 to A-___) to this Agreement and are incorporated into it by this reference.
11.2. This Agreement’s insurance provisions:
(A) Are separate and independent from the indemnification and defense 12 provisions in Article 12 of the Agreement; and
(B) Do not limit, in any way, the applicability, scope, or obligations of the indemnification and defense provisions in Article 12 of the Agreement.
12.0 INDEMNITY
12.1. To the maximum extent permitted by law— including, but not limited to, California Civil Code Section 2778— OPERATOR, its employees, agents, and persons whom OPERATOR employs or hires (individually and collectively, “OPERATOR INDEMNITOR”) shall indemnify, defend, and hold harmless CITY, its officers, agents, employees, and representatives (individually and collectively, “CITY INDEMNITEE”) from and against a “liability” [as defined in Subparagraph (A) below], or an “expense” [as defined in Subparagraph (B) below], or both, that arise out of, pertain to, or relate to an act, error, or omission of a OPERATOR INDEMNITOR:
(A) “Liability” means claims, suits, actions, causes of action, proceedings, judgments, decrees, awards, settlements, liens, losses, damages, injuries, or liability of any kind, whether the liability is:
(1) Actual or alleged;
(2) In contract or in tort; or
(3) For bodily injury (including accidental death), personal injury, advertising injury, or property damage.
(B) “Expense” means fees, costs, sums, penalties, fines, charges, or expenses of any kind, including, but not limited to:
(1) Attorney’s fees;
(2) Costs of an investigation, litigation, arbitration, mediation, administrative or regulatory proceeding, or appeal;
(3) Fees of an accountant, expert witness, consultant, or other professional; or
(4) Pre or post: judgment interest or settlement interest.
12.2. Under this Article, OPERATOR INDEMNITOR’s defense and indemnification obligations:
(A) Apply to a liability, or an expense, or both, that arise out of, pertain to, or relate to the actual or alleged passive negligence of a CITY INDEMNITEE; but 13 (B) Do not apply to a liability, or an expense, or both, that arise out of, pertain to, or relate to the sole active negligence or willful misconduct of a CITY INDEMNITEE.
12.3. To the extent that OPERATOR INDEMNITOR’s insurance policy provides an upfront defense to CITY, OPERATOR INDEMNITOR’s obligation to defend a CITY INDEMNITEE under this Article:
(A) Means that OPERATOR INDEMNITOR shall provide and pay for legal counsel, acceptable to CITY, for the CITY INDEMNITEE; (B) Occurs when a claim, suit, complaint, pleading, or action against a CITY INDEMNITEE arises out of, pertains to, relates to, or asserts an act, error, or omission of OPERATOR INDEMNITOR; and
(C) Arises regardless of whether a claim, suit, complaint, pleading, or action specifically names or identifies OPERATOR INDEMNITOR.
12.4. Paragraph 12.3 does not limit or extinguish OPERATOR INDEMNITOR’s obligation to reimburse a CITY INDEMNITEE for the costs of defending the CITY INDEMNITEE against a liability, or an expense, or both. A CITY INDEMNITEE’s right to recover defense costs and attorney’s fees under this Article does not require, and is not contingent upon, the CITY INDEMNITEE’s first:
(A) Requesting that OPERATOR INDEMNITOR provide a defense to the CITY INDEMNITEE; or
(B) Obtaining OPERATOR INDEMNITOR’s consent to the CITY INDEMNITEE’s tender of defense.
12.5. OPERATOR INDEMNITOR’s obligation to indemnify, defend, and hold harmless CITY will remain in effect and will be binding upon OPERATOR INDEMNITOR whether the liability, or the expense, or both, accrues— or is discovered— before or after this Agreement’s expiration, cancellation, or termination.
12.6. Except for Paragraph 12.3, this Article’s indemnification and defense provisions are separate and independent from the insurance provisions in Article 11. In addition, the indemnification and defense provisions in this Article:
(A) Are neither limited to nor capped at the coverage amounts specified under the insurance provisions in Article 11; and
(B) Do not limit, in any way, the applicability, scope, or obligations of the insurance provisions in Article 11.
13.0 DEFAULT, REMEDIES, AND TERMINATION
14 13.1. Default. Default under this Agreement occurs upon any one or more of the following events:
(A) OPERATOR refuses or fails— whether partially, fully, temporarily, or otherwise— to:
(1) Pay for, obtain, maintain, or renew the insurance policies or coverages that this Agreement requires;
(2) Comply with indemnification, defense, or hold harmless provisions that this Agreement requires; or
(B) OPERATOR, or its personnel, or both— whether partially, fully, temporarily, or otherwise:
(1) Disregards or violates a law, ordinance, rule, procedure, regulation, directive, or order;
(2) Refuses or fails to pay for, obtain, maintain, or renew requisite licenses;
(3) Refuses or fails to observe, perform, or fulfill a covenant, condition, obligation, term, or provision of this Agreement; (4) Commits an unlawful, false, fraudulent, dishonest, deceptive, or dangerous act while performing the Services under this Agreement; or
(C) OPERATOR:
(1) Delegates— whether in whole, in part, temporarily, or otherwise— its duties or obligations under this Agreement, without notifying CITY, or without CITY’s written authorization; (2) Assigns, transfers, pledges, hypothecates, grants, or encumbers— whether in whole, in part, temporarily, or
otherwise— this Agreement or any interest in it, without notifying CITY, or without CITY’s written authorization; (3) Or one of its partners, directors, officers, or general managers, or a person who exercises managerial authority on
OPERATOR’s behalf, is convicted under state or federal law, during this Agreement’s Term, of embezzlement, theft, fraud, forgery, bribery, deceptive or unlawful business practices, perjury, falsifying or destroying records or evidence, receiving 15 stolen property, or other offense indicating a lack of business integrity or business honesty; or
(D) Any other justifiable cause or reason, as reasonably determined by the City Manager, or a designee.
13.2. Notice of Default. If CITY deems that OPERATOR is in Default, CITY may give written notice to OPERATOR specifying the Default(s) that OPERATOR shall remedy within five (5) days after receiving the notice. The Notice of Default will set forth one or more bases for any dissatisfaction and may suggest corrective measures.
13.3. Remedies upon Default. Within five (5) days after receiving CITY’s Notice of Default, if OPERATOR refuses or fails to remedy the Default(s), or if OPERATOR does not commence steps to remedy the Default(s) to CITY’s reasonable satisfaction, CITY may exercise any one or more of the following remedies:
(A) CITY may, in whole or in part and for any length of time, immediately suspend this Agreement until such time as OPERATOR has corrected the Default; (B) CITY may immediately terminate the Agreement;
(C) CITY may exercise any legal remedy, or equitable remedy, or both, including, but not limited to, filing and action in court:
(1) Seeking OPERATOR’s specific performance of all or any part of this Agreement; or
(2) Recovering damages for OPERATOR’s Default, breach, or violation of this Agreement; or
(D) CITY may pursue any other available, lawful right, remedy, or action.
13.4 Liquidated Damages. CITY has authority pursuant to its police powers to adopt and enforce charges and fines. To the extent such charges and fines are construed as a penalty, however, OPERATOR and CITY agree that it is, and will be, difficult or impossible to ascertain the actual damage that CITY will sustain from OPERATOR’s failure to comply with the provisions of this Agreement relating to service requests, accessibility, idling, and geofencing, and that these charges and fines reasonably approximate such costs as liquidated damages. (A) Service Requests. OPERATOR shall pay CITY seventy-five dollars ($75) per service request to which OPERATOR does not respond within one (1) hour of submission. OPERATOR shall pay CITY an additional one hundred fifty dollars ($150) per service request to which OPERATOR does not respond within two (2) hours of submission. OPERATOR shall pay CITY an additional three hundred dollars ($300) and be suspending from operating Devices in the CITY for one day per service request to 16 which OPERATOR does not respond within three (3) hours of submission. Except for an accessibility-related service request, OPERATOR’s time to respond to service requests submitted outside of its normal business hours begins when OPERATOR reopens for business.
(1) OPERATOR shall not mark a service request complete unless and until OPERATOR has taken corrective action. OPERATOR shall be suspended from operating Devices in the CITY for one day per service request that OPERATOR closes without taking corrective action.
(B) Accessibility. OPERATOR shall pay CITY four hundred fifty dollars ($450) for a first violation, one thousand dollars ($1,000) for a second violation, and one thousand five hundred dollars ($1,500) for each successive violation of any accessibility-related provision of this Agreement, including Paragraphs 3.6, 3.7, 3.8,
5.2(D), and 5.2(E).
(1) Notwithstanding Paragraph 13.4(A), OPERATOR shall be suspended from operating Devices in the CITY for one day per accessibility-related service request to which it does not timely respond as prescribed in Paragraph 3.9(B).
(C) Idling. OPERATOR shall pay CITY five dollars ($5) per Device that CITY identifies as idle in the public right-of-way between two (2) and four (4) hours. OPERATOR shall pay CITY ten ($10) per idle Device every hour thereafter until the Device has been removed or reparked.
(D) Geofencing.
(1) OPERATOR shall pay CITY five dollars ($5) for each occurrence in which more than (4) Devices are deployed or parked on one CITY block at a time in violation of Paragraph 5.1(B); and (2) OPERATOR shall pay CITY ten dollars ($10) per Device for each instance of operating in a No Operating Zone.
(E) OPERATOR shall remit any payments due CITY under this Paragraph 13.4 within 30 days of receiving a written invoice from CITY, and CITY may terminate this Agreement if OPERATOR does not timely remit such payments.
13.5 Damage to Public Property. Independent of the other remedies provided in this Paragraph 13.0, OPERATOR shall pay for any damage to CITY property, facilities, structures, or streets arising out of CONSULTANT’s use, occupation, operation, or activities in, upon, under, or over any portion of them.
13.6. Termination for Convenience. Either Party may elect to terminate 17 this Agreement at any time absent the other Party’s Default upon thirty (30) days’ prior written notice. CITY shall not pay OPERATOR for de-mobilization, takedown, disengagement, wind-down, or other costs incurred arising out of this Agreement’s termination.
14.0 GENERAL PROVISIONS
14.1. Entire Agreement. This Agreement represents the entire and integrated agreement between the PARTIES. This Agreement supersedes all prior and contemporaneous communications, negotiations, understandings, promises and agreements, either oral or written. Neither OPERATOR nor CITY has made any promises or representations, other than those contained in this Agreement or those implied by law.
The PARTIES may modify this Agreement, or any part of it, by a written amendment with CITY’s and OPERATOR’s signature.
14.2. Interpretation. This Agreement is the product of negotiation and compromise by both PARTIES. Every provision in this Agreement must be interpreted as though the PARTIES equally participated in its drafting. Therefore, despite the provisions in California Civil Code Section 1654, if this Agreement’s language is uncertain, the Agreement must not be construed against the PARTY causing the uncertainty to exist. In interpreting this Agreement and resolving any ambiguities, this Agreement will take precedence over any cover page or attachments. If a conflict occurs between a provision in this Agreement and a provision in an attachment, the following order of precedence applies, with the terms and conditions in the document higher on the list governing over those lower on the list:
(1) The Agreement.
(2) Exhibit A (Insurance Requirements).
14.3. Headings. All headings or captions in this Agreement are for convenience and reference only. They are not intended to define or limit the scope of any term, condition, or provision.
14.4. Governing Law; Jurisdiction.
(A) California’s laws govern this Agreement’s construction and interpretation regardless of the laws that might otherwise apply under applicable principles of conflicts of law or choice of law.
(B) If OPERATOR or CITY brings a lawsuit to enforce or interpret one or more provisions of this Agreement, jurisdiction is in the Superior Court of the County of Los Angeles, California, or where otherwise appropriate, in the United States District Court, Central District of California. OPERATOR and CITY acknowledge that the Agreement was negotiated, entered into, and executed— and the Services are performed— in the City of Glendale, California.
(C) Unless this Agreement provides otherwise, any reference to laws, 18 ordinances, rules, or regulations include their later amendments, modifications, and successor legislation.
14.5. Waiver of Breach. If either PARTY fails to require the other to perform any term in this Agreement, that failure does not prevent the PARTY from later enforcing that term, or any other term. If either PARTY waives the other’s breach of a term, that waiver is not treated as waiving a later breach of the term. A waiver of a term is valid only if it is in writing and signed by the PARTY waiving it. This Agreement’s duties and obligations:
(A) Are cumulative (rather than alternative) and are in addition to (rather than a limitation on) any option, right, power, remedy, or privilege; and (B) Are not exhausted by a PARTY’s exercise of any one of them.
14.6. Attorney’s Fees. If CITY or OPERATOR brings an action at law or in equity to enforce or interpret one or more provisions of this Agreement, the “prevailing party” is entitled to “reasonable attorney’s fees” in addition to any other relief to which the prevailing party may be entitled. A “prevailing party” has the same meaning as that term is defined in California Code of Civil Procedure Section 1032(a)(4). “Reasonable attorney’s fees” of the City Attorney’s office means the fees regularly charged by private attorneys who:
(A) Practice in a law firm located in Los Angeles County; and (B) Have an equivalent number of years of professional experience in the subject matter area of the law for which the City Attorney’s services were rendered.
14.7. Further Assurances. Upon CITY’s request at any time, OPERATOR shall promptly:
(A) Take further necessary action; and
(B) Sign, acknowledge, and deliver all additional documents as may be reasonable, necessary, or appropriate to carry out this Agreement’s intent, purpose, and terms.
14.8. Assignment.
(A) This Agreement does not give any rights or benefits to anyone, other than to CITY and OPERATOR. All duties, obligations, and responsibilities under this Agreement are for the sole and exclusive benefit of CITY and OPERATOR, and are not for the benefit of another person, entity, or organization. Without CITY’s prior written authorization, OPERATOR shall not do any one or more of the following:
(1) Assign or transfer a right or interest— whether in whole, in 19 part, temporarily, or otherwise— in this Agreement; or (2) Delegate a duty or obligation owed— whether in whole, in part, temporarily, or otherwise— under this Agreement.
(B) Any actual or attempted assignment of rights or delegation of duties by OPERATOR, without CITY’s prior written authorization, is wholly void and totally ineffective for all purposes; and does not postpone, delay, alter, extinguish, or terminate OPERATOR’s duties, obligations, or responsibilities under this Agreement. (C) If CITY consents to an assignment of rights, or a delegation of duties, or both, OPERATOR’s assignee or legal representative shall agree in writing to personally assume, perform, and to be bound unconditionally by the covenants, obligations, terms, and conditions in this Agreement.
14.9. Successors and Assigns. Subject to the provisions in Paragraph
14.8, this Agreement is binding on the heirs, executors, administrators, successors, and assigns of the respective PARTIES.
14.10. Date Calculation. Unless this Agreement specifies otherwise, any reference to “day” or “days” means calendar and not business days. If the last day for giving notice or performing an act under this Agreement falls on a weekend, a legal holiday listed in either Glendale Municipal Code Section 3.08.010 or California’s Government Code, or a day when City Hall is closed, the period is extended to and including the next day that CITY is open for business. A reference to the time of day refers to local time for Glendale, California.
14.11. Recycled Paper. OPERATOR shall endeavor to submit all reports, correspondence, and documents related to this Agreement on recycled paper.
14.12. Notices.
(A) The PARTIES shall submit in writing all notices and correspondence that this Agreement requires or permits, and shall use the following delivery method:
(1) Personal delivery;
(2) U.S. mail, first class postage prepaid;
(3) “Certified” U.S. mail, postage prepaid, return receipt requested; (4) Facsimile; or
(5) Email.
(B) All written notices or correspondence done in the manner described 20 in Subparagraph (A) above with the street address or place, facsimile number, or email address listed in Subparagraph (C) below will be presumed “given” to a PARTY on whichever date occurs earliest:
(1) The date of personal delivery;
(2) The third (3rd) business day following deposit in the U.S. mail, when sent by “first class” mail;
(3) The date on which the PARTY or its agent either signed the return receipt or refused to accept delivery, as noted on the return receipt or other U.S. Postal Service form, when sent by “certified” mail; or
(4) The date of transmission, when sent by facsimile or email. (C) CITY and OPERATOR designate the following contact person, street address or place, telephone number, and facsimile number or email address for giving notice:
CITY: City of Glendale
Dept.:
Glendale, CA 9120
Attn:
Tel. No.:
Fax. No.:
Email:
OPERATOR:
Attn:
Tel. No.:
Fax. No.:
Email:
(D) At any time, by providing written notice to the other PARTY, CITY or OPERATOR may change the contact information listed in Subparagraph (C) above.
14.13. Survival. This Paragraph and the obligations set forth in Paragraphs
2.2, 3.12, 7.2, 8.1, 9.1, 9.2, 11.1, 11.2, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 13.3, 13.4, 13.5,
14.5, 14.6, 14.7, 14.8, 14.9, and 14.12 survive this Agreement’s expiration, cancellation, 21 or termination.
14.14. Severability. The invalidity, in whole or in part, of any term of this Agreement will not affect this Agreement’s remaining terms.
14.15. Counterparts. This Agreement may be executed in counterparts, each of which is an original, but all of which constitutes one and the same document. The PARTIES shall sign a sufficient number of counterparts, so that each PARTY will receive a fully executed original of this Agreement.
14.16. Digital Signatures. The PARTIES deem a copy of this Agreement, or any amendment to it, that bears a digital signature as having the same legal effect, for all purposes, as delivery of a signed original of this Agreement or the amendment, and each digital signature will have the same legal force and effect as a handwritten signature.
14.17. Representations – Authority. The PARTIES represent that:
(A) They have read this Agreement, fully understand its contents, and have received a copy of it;
(B) Through their duly authorized representative, they are authorized to sign this Agreement, and they are bound by its terms; and (C) They have executed this Agreement on the date opposite their signature.
Executed at Glendale, California.
CITY OF GLENDALE:
By Date:
(Name)
(Title)
OPERATOR:
By Date:
(Name)
(Title)
APPROVED AS TO FORM
22 NAME:
TITLE:
SIGNATURE:
DATE: