CITY OF SAN CLEMENTE
CONSULTANT SERVICES AGREEMENT
Parties and Date.
This Consultant Services Agreement (“Agreement”) is made and entered into this 1st day of July, 2025, by and between the City of San Clemente, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 910 Calle Negocio , San Clemente, California, 92673 ("City") and Lyft, Inc., a Delaware corporation, with its principal place of business at 185 Berry Street, 400, San Francisco, CA 94107 ("Consultant"). The Agreement consists of this Consulting Services Agreement and any exhibits, attachments, appendices hereto. City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." Recitals.
Consultant.
Consultant desires to perform and assume responsibility for the provision of access to certain rideshare services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing access to rideshare services for the City’s SC Rides Program (as defined below), is licensed in the State of California, if applicable, and is familiar with the plans of City.
Project.
City desires to engage Consultant to access rideshare services for the SC Rides Program project ("Project") as set forth in this Agreement.
Terms.
Scope of Services and Term.
General Scope of Services. Consultant promises and agrees to furnish to the City software services, and incidental and customary services and work necessary to provide access to rideshare services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" (including “Attachment A”) attached hereto and incorporated herein by reference. The terms of this Agreement shall prevail in the event of any conflict between this Agreement and its Exhibits and Attachments. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Capitalized terms used but not defined in Exhibit “A” (including Attachment “A”) shall have the meanings provided to them in the Agreement. In the event of any direct conflict between the terms of Exhibit “A” and the terms of the Agreement, the terms of the Exhibit “A” shall control.
Term. The term of this Agreement shall be from July 1, 2025 toJune 30, 2028, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines Responsibilities of Consultant.
Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant. Consultant will provide the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to provide software services for others during the term of this Agreement.
Any additional personnel supporting the provision of Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control, the City being only concerned with the functionality and availability of the Services. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their support of the provision of Services under this Agreement and as required by law. Consultant shall be solely responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. Neither Consultant nor Consultant's employees shall in any event be entitled to any benefits to which City employees are entitled, including, but not limited to, overtime, retirement benefits, workers’ compensation benefits, injury leave or other leave benefits. Consultant is solely responsible for all such matters, as well as compliance with social security and income tax withholding and all other regulations and laws governing such matters.
PERS Eligibility and Employee Payments Indemnification. In the event that Consultant's employee(s) providing services under this Agreement, if any, claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions that would otherwise be the responsibility of the City. Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant's employees providing service under this Agreement, if any, shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation and benefit including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contributions to be paid by City for employer contributions and/or employee contributions for PERS benefits. Consultant agrees to defend and indemnify the City for any obligation, claim, suit or demand for tax, retirement contribution including any contribution to the PERS, social security, salary or wages, overtime payment, or workers’ compensation payment that the City may be required to make for work done under this Agreement. The provisions of this section 3.2.2 are continuing obligations that shall survive expiration or termination of this Agreement.
Schedule of Services. Consultant shall provide access to the Services, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical skills required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
Endorsement on PS&E/ Other Data. Intentionally Omitted Conformance to Applicable Requirements. Consultant shall provide Services in accordance with the City’s requirements for the Project.
Substitution of Key Personnel. Consultant has represented to City that certain key personnel will exercise managerial oversight in support of the successful implementation of the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence, provided Consultant will notify City of such substitution as applicable. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to provide adequate support and implementation of the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel designated for this Agreement are as follows: Buck Poropatich, Vice President of Healthcare and Community Access Partnerships.
City's Representative. The City hereby designates David Rebensdorf, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee.
Consultant's Representative. Consultant hereby designates Buck Poropatich, Vice President of Healthcare and Community Access Partnerships or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall manage implementation of the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
Coordination of Services. Consultant agrees to work closely with City staff in the implementation of Services and shall be available to City's staff, consultants and other staff as appropriate during standard business hours .
Standard of Care; Performance of Employees. Intentionally Omitted.
Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations affecting the provision of the Services hereunder.
Safety. Intentionally Omitted
Insurance. Consultant agrees to procure and maintain, at Consultant’s expense all insurance specified in Exhibit “C” attached hereto and by this reference incorporated herein. Consultant shall require all subconsultants, if any, to carry the same policies and limits of insurance that the Consultant is required to maintain, unless otherwise approved in writing by the City.
Fees and Payments.
Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "D" attached hereto and incorporated herein by reference. The total compensation shall not exceed ONE MILLION FIFTY THOUSAND ($1,050,000) for the initial three-year term without prior written approval of the City Council or City Manager as applicable. Extra Work may be previously authorized in writing, as described below, and if so authorized, will be compensated at the rates and manner set forth in this Agreement.
Payment of Compensation. Consultant shall submit to City a monthly invoice. The invoice shall describe the Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein.
Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless previously authorized in writing by City, or included in Exhibit "D" of this Agreement.
Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without prior written authorization from the City.
Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit “D” may be adjusted each year at the time of renewal as set forth in Exhibit “D.” Labor Code Requirements.
Prevailing Wages. Intentionally Omitted
Registration. Intentionally Omitted
Accounting Records.
Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all fees incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of four (4) years from the date of final payment under this Agreement.
General Provisions.
Termination of Agreement.
Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time, with or without cause, by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. Consultant may not terminate this Agreement except for cause.
Effect of Termination. Intentionally Omitted
Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Consultant: Lyft, Inc.
185 Berry Street, Suite 400
San Francisco, CA 94107
ATTN: Chief Legal Officer
With a copy of each to [email protected]
City: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
ATTN: LAURA CAMPAGNOLO, CITY CLERK
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
Ownership of Materials and Confidentiality.
Documents & Data; Licensing of Intellectual Property Consultant shall remain the owners of all right, title and interest in and to the Consultant’s Services including updates, enhancements, and new versions thereof, all data related to the use of the Services, all related documentation and materials provided or available to City or any rider in connection with this Agreement, and all intellectual property related to the foregoing.
Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other documents & data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the provision of the Services. Nor shall such materials be disclosed to any person or entity not connected with the provision of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
Confidential Information. The City shall refrain from releasing Consultant’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicable state or federal law, or order of a court of competent jurisdiction, in which case the City shall (a) promptly notify Consultant of its intention to release Proprietary Information; (b) deny the request and/or provide Consultant with reasonable opportunity to object to disclosure; and (c) reasonably cooperate in any efforts made by Consultant to prevent disclosure. . Consultant shall have ten (10) working days after receipt of the release notice to give City written notice of Consultant's objection to the City's release of Proprietary Information.
Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action.
Indemnification.
To the fullest extent permitted by law, Consultant shall defend indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to Consultant’s infringement, misappropriation of a third party copyright, trade secret, or patent and any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the implementation of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
Intentionally Omitted
Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties.
Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County, California.
Time of Essence. Time is of the essence for each and every provision of this Agreement.
City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City, provided, Consultant may, in its sole discretion, assign this Agreement to any affiliate, subsidiary, or in the event of a public offering, merger or sale of all or substantially of its assets in which case 30-days written notice shall be provided to City by Consusltant. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days, unless otherwise specified. All references to Consultant include all personnel, employees, and agents of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City, state and federal grant requirements and related programs, policies and guidelines currently in effect or hereinafter enacted.
Labor Certification. Intentionally omitted.
Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
Counterparts/Electronic Signatures. This Agreement may be signed in counterparts, each of which shall constitute an original. This Agreement may be signed with the same force and effect as original ink signatures.
Subcontracting.
Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the respective dates set forth opposite of their signatures.
CITY OF SAN CLEMENTE
By:________________________________
Andy Hall, City Manager
ATTEST: Dated: __________________, 2026
___________________________
CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:
_____________________________
Elizabeth A. Mitchell, City Attorney
APPROVED AS TO AVAILABILITY
OF FUNDING:
_____________________________
Finance Authorization
Lyft Inc.
By:_____________________________
Buck Poropatich, Vice President of Lyft Business
Dated: __________________, 2026
By: _________________________
Suzie Reider, EVP Lyft Marketing, Ads and Lyft Business Dated: ________________, 2026
Exhibit "A"
Scope of Services
Consultant shall provide access to its rideshare services in accordance with this Exhibit “A” and Attachment “A” below to support the following services according to the City’s criteria (collectively, the “Services”) related to the Orange County Transportation Authority (OCTA) approved grant for a San Clemente rideshare program due to the termination of OCTA bus routes 191 and 193 and the City’s on-demand transportation service called "SC Rides" designed to help mitigate the loss of former local OCTA bus routes 191 and 193, by providing discounted rideshare services to passengers:
Consultant shall provide a program with the following components:
A rideshare service accessible via a computer or smartphone application (app) for users aged 18 and older, with a valid electronic payment option and a viable option for ADA riders.
The rideshare service must be able to provide shared-rides. Shared rides involve one or more people sharing a single vehicle to travel together, often to the same or nearby destinations.
Consultant must ensure all SC Rides trips are offered as “shared rides” in accordance with OCTA guidelines. However, if no other riders are matched along the route, the trip may proceed as a single-passenger ride.
The current program has an average of 3,500 rides a month and average of 120 daily boardings.
Hours of Operation: The rideshare service will operate similar to the time frames of the previous bus routes 191 and 193 service, from 6am to 8pm, daily.
Route Descriptions: Pickups and drop-offs within a quarter mile of former route 191 and 193 bus stops. Please see coverage map available at Public Mobility Map (https://sanclementeca.maps.arcgis.com/apps/webappviewer/index.html?id=db171c80a15f422a887d94b236b36659), which is incorporated fully herein by this reference.
Contractor shall be responsible for:
Identifying a Project Manager who will oversee the proper operation and administration. The designated Project Manager must be available to the City during standard business hours.
Attend meetings with staff as needed.
Respond to all customer comments related to service.
Services must comply with all applicable local, state and federal laws.
Maintain and provide reports on service feedback/customer satisfaction in the form of driver and passenger ratings.
The City reserves the right to decrease or increase hours of operation, area map, or the city subsidy rate at any given time.
Under its Project V grant program, OCTA has awarded funds to the City to provide up to 50% of the cost of this program.
The City’s program operates under a cooperative agreement with OCTA and in compliance with 2024 OCTA CTFP Guidelines (Refer to Attachment B). The Consultant is aware that the City is obligated to ensure that the rideshare services and the program must operate in compliance with the Scope of Work and 2024 OCTA CTFP Guidelines to ensure that the City maintains eligibility to receive OCTA funding support.
ATTACHMENT "A"
LYFT BUSINESS TERMS OF SERVICE
These Lyft Business Terms of Service (“LB Terms”) constitute a legally binding agreement by and between the company identified within this sign-up page or the contract into which these LB Terms are incorporated (“Customer”, “You”) and Lyft, Inc. (“Lyft”) (each, a “party” and together, the “parties”). If you are registering for a Customer Account or using the LB Services (each as defined below) on behalf of an organization, you are agreeing to this Agreement for that organization and representing and warranting to Lyft that you have the authority to bind that organization to this Agreement. These LB Terms set forth the terms under which Customer may access and use the Lyft Platform (as defined below) and the LB Services to request Rides and to administer, manage, and view Ride activity.
Customer’s access to and use of the LB Services is subject to these LB Terms, as may be modified or updated by Lyft from time to time (effective upon the Last Updated date at the top of the LB Terms), the LB Product Descriptions (as defined below), which are expressly incorporated herein, and the Lyft Privacy Policy (as defined below), which is expressly incorporated herein, (collectively, the “Agreement”). Lyft will provide Customer with notice of any material modifications or updates to the LB Terms through the email Lyft has on file, or through the Customer Account, and by updating the date at the top of these LB Terms. Customer is responsible for updating contact information through the Customer Account and regularly reviewing these LB Terms and the LB Product Descriptions for updates from Lyft. Continued use of the LB Services from and after the Last Updated date at the top of these LB Terms shall constitute Customer’s consent to such changes. Capitalized terms used but not otherwise defined in these LB Terms have the respective meanings ascribed to them in the LB Product Descriptions.
By entering into this Agreement, registering for a Customer Account, and/or by using or accessing the LB Services, You expressly acknowledge and agree that You understand this Agreement and accept all of its terms. You further acknowledge and agree that if You or the entity accessing the LB Services is a Covered Entity or a Business Associate of a Covered Entity, as those terms are defined by the Health Insurance Portability and Accountability Act of 1996, as amended, (“HIPAA”) and You or such entity uses the LB Services to enable Riders to receive access to Rides to and/or from healthcare services, and discloses Protected Health Information (as defined by HIPAA) to Lyft, then Lyft’s Business Associate Agreement shall apply and is incorporated herein and shall form part of this Agreement between You and Lyft.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF
THE AGREEMENT, YOU MAY NOT USE OR ACCESS THE LYFT PLATFORM AND LB SERVICES.
If You use the Lyft Platform or the LB Services in a country other than the United States of America, You agree that Your use of the Lyft Platform and the LB Services in that country will be subject to this Agreement and the applicable country-specific terms, if any.
Definitions
a. “Administrator(s)” means any agent authorized by Customer to serve as a Customer Account administrator.
b. “Affiliate” is any entity or person that controls, is controlled by or is under common control with a party, such as a subsidiary or parent company. c. “Charges” means all Ride-related Fares and Rideshare Service Fees and Other Charges (as all are described in Section 4 of the Lyft Terms of Service), and any Business Services Fee (as may be set forth in an Order Form). d. “Customer Account” means a central Lyft account and its related sub-accounts established for Customer in connection with its use of one or more LB Services. e. “Driver(s)” means independent third-party person(s) authorized to provide driving services on the Lyft Platform. Drivers are users of the Lyft Platform and not employees, subcontractors, representatives, or agents of Lyft; rather, Drivers provide driving services at their own direction and control. f. “Law” means any statute, law, ordinance, regulation, rule, judgment or order of a government, court, or tribunal of competent jurisdiction, including, without limitation, any data protection laws, privacy laws, any laws that require Customer to obtain consent from a Rider or provide notice to a Rider in connection with the LB Services, the U.S. Foreign Corrupt Practices Act, rules established by the Federal Communications Commission, any federal, state or local anti-spam statute or regulation, including the CAN SPAM Act of 2003 (“CAN-SPAM Act”), or any federal, state, or local statute or regulation prohibiting the dissemination of unsolicited communications, including the Telephone Consumer Protection Act of 1991 (“TCPA”).
g. “LB Product Descriptions” means descriptions of the LB Services and terms with respect to use of the LB Services, which can be found at https://go.lyftbusiness.com/product-descriptions, as may be updated by Lyft from time to time and are hereby incorporated into this Agreement by reference. h. “LB Services” includes, without limitation, Business Profiles, Concierge, Lyft Pass, the LB Portal, and any future products and/or services offered by Lyft. i. “Lyft App” means the Lyft mobile application.
j. “Lyft Platform” means Lyft’s multi-modal transportation-as-a-service platform which allows Riders and Administrators the opportunity to submit a Ride request. k. “Lyft Privacy Policy” means Lyft’s policy, which can be found at https://www.lyft.com/privacy (as may be updated from time to time by Lyft and is hereby incorporated into this Agreement by reference), with respect to how Lyft collects, uses, and shares personal information and how users of the Lyft Platform, including Riders and Drivers, may exercise choices and rights in their information.
l. “Lyft Terms of Service” means Lyft’s terms of service governing a Rider’s and Driver’s use of the Lyft Platform, which can be found at https://www.lyft.com/terms, as may be updated from time to time by Lyft. m. “Ride(s)” means driving services that are provided by Drivers. Each Ride begins when the Rider enters a Driver’s vehicle, and the Ride ends when the Rider exits the vehicle. Lyft does not provide Rides; rather, Lyft enables the matching of Drivers and Riders through the Lyft Platform.
n. “Rider(s)” means person(s) who submits a Ride request, or for whom a Ride request is submitted, through the Lyft App or using the Lyft Platform.
2. LB Services and Applicable Terms
General. Lyft hereby grants Customer a non-exclusive, non-transferrable, revocable, limited license to use the Lyft Platform and the LB Services for the Term and in strict compliance with this Agreement and applicable Law. Lyft reserves all rights not expressly granted to Customer under this Agreement. Lyft may, in its sole discretion and at any time, cancel, modify, or add new products and services to the LB Services by updating the LB Product Descriptions. Lyft will not be responsible for any loss of data or any other damages associated with such changes.
b. Discounts. If Lyft chooses to provide Customer with any discounts, Lyft does so at its own discretion and may terminate such discounts at any time without notice to Customer, unless agreed otherwise by the parties in a signed agreement. c. Customer Account. To access the LB Services, Customer must create a Customer Account and provide true, accurate, current, and complete information as requested during the account creation process and throughout the Term.
Customer is solely responsible for all use (whether or not authorized) of the LB Services under the Customer Account, and for all acts and omissions of anyone who accesses such Customer Account, as well as all Charges generated under such Customer Account. Customer agrees to take all necessary precautions to prevent unauthorized access to or use of the LB Services or the Customer Account and will promptly notify Lyft upon the discovery of any known or suspected unauthorized or fraudulent activity occurring within the Customer Account. Lyft will not be liable for any loss or damage arising from unauthorized or fraudulent use of the Customer Account.
d. Affiliates. If applicable to Customer, Affiliates may utilize the LB Services pursuant to the terms of this Agreement, provided that the terms of this Agreement apply to such Affiliates. Customer and Customer’s Affiliates shall be jointly and severally responsible for the acts and omissions of Customer’s Affiliates in connection with their use of the LB Services, including, but not limited to, breach of this Agreement. Any claim from Customer’s Affiliates’ use of the LB Services pursuant to this Agreement may be brought against Lyft only by Customer on Customer’s Affiliates’ behalf. Additionally, Lyft may bring claims for violation of this Agreement by Customer’s Affiliates against such Affiliate, Customer, or both, at Lyft’s sole discretion.
3. Restrictions
Customer shall not, and shall not authorize others to, (i) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Lyft Platform and/or the LB Services; (ii) use the Lyft Platform, the LB Services, and/or the data received from the LB Services in violation of applicable Law, third party rights, and/or this Agreement; (iii) sublicense, repackage, lease, rent, sell, give or otherwise transfer or provide the Lyft Platform and/or the LB Services to any unaffiliated third party except as may be provided in this Agreement; (iv) replicate or modify the Lyft Platform, the LB Services and/or their elements; (v) use incorrect or outdated Rider information in connection with this Agreement; (vi) interfere with, modify or disable any features or functionality of the Lyft Platform and/or the LB Services; (vii) transmit files, documents, or any other material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs; (viii) use the LB Services and/or Lyft Platform in connection with unsolicited, unwanted, or harassing communications (commercial or otherwise), including, but not limited to, phone calls, SMS messages, chat, voicemail, or video; and/or (ix) use the LB Services to submit requests for Riders who are less than the age of majority in their jurisdiction of residence, unless such Rider is accompanied by a person who is at least the age of majority in their jurisdiction of residence.
Chargers and Payment
Payment Obligations. As applicable to the specific LB Services and as generally described in the LB Product Descriptions, Customer and/or Rider will be liable for all Charges incurred through use of the LB Services. Lyft offers billing and payment options for each LB Service, as such options generally are described in the LB Product Descriptions.
b. Payment Card. For Charges that are paid via payment card, Customer is responsible for either (i) enabling auto-recharge on the payment card or (ii) ensuring that the payment card has a sufficient positive balance to cover the Charges due. Customer expressly acknowledges and agrees that Lyft may use a third-party intermediary to process credit and debit card payments, in which case such third-party intermediary will have access to, store, and use Customer’s billing data as necessary to process its payment.
c. Invoicing. For payments via invoicing, Lyft will invoice Customer for all applicable Charges on a monthly basis. All invoices shall be paid, without offset or deductions, within thirty (30) days of the date of invoice. If Customer is overdue on any payment, Lyft may (i) assess, and Customer will pay, a late fee of the lesser of 1.5% per month of the overdue amounts or the maximum amount allowable by law, and/or (ii) suspend the LB Services associated with Customer's account until such non-payment is corrected. Any Customer purchase order document or other similar document shall be void and of no effect with regard to this Agreement.
d. Taxes. Customer shall be responsible for the payment of any applicable direct or indirect sales or use taxes or any value added or similar taxes payable, arising out of or in connection with this Agreement (collectively, “Taxes”), other than taxes based upon Lyft's income. If Lyft pays any such Taxes on behalf of Customer, Lyft shall invoice Customer for such Taxes, and Customer agrees to pay such Taxes in accordance with this Agreement.
e. Suspension. If the Charges generated by Customer’s use of the Lyft Platform or the LB Services exceed any payment card limit, or if Customer otherwise fails to pay any amounts due under this Section 4, without prior notice to Customer, Lyft may suspend Customer’s access to the Lyft Platform for such Customer Account until such non-payment is corrected. Lyft will have no liability for any damage, losses (including any loss of data or profits) or any other consequences that Customer may incur in connection with any suspension of the Lyft Platform and/or the LB Services pursuant to this Section 4.
Proprietary Rights
Ownership. Lyft and its Affiliates are and shall remain the owners of all right, title and interest in and to the Lyft Platform and the LB Services, including updates, enhancements, and new versions thereof, all data related to the use of the Lyft Platform and the LB Services, all related documentation and materials provided or available to Customer or any Rider in connection with this Agreement, and all intellectual property related to the foregoing.
Feedback. Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about Lyft, the Lyft Platform, and/or the LB Services (“Feedback”) provided by Customer or any Rider to Lyft are optional, anonymized, non-confidential and shall become the sole property of Lyft. Lyft shall have exclusive rights to Feedback, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without notice, acknowledgment or compensation to Customer or any Rider. c. Use of Marks. During the Term and subject to the terms of this Agreement, Customer grants to Lyft a non-exclusive, limited, revocable right to use and display Customer's name and logo (the “Customer Marks”) and Customer’s Use Case(s) (as defined below) on its website, in its earnings calls, in press releases, and in other promotional materials solely in connection with its activities under this Agreement. A “Use Case” means a general description of how Customer uses the Lyft Platform and the LB Services (e.g., corporate travel). All such use of the Customer Marks must be in accordance with Customer's usage guidelines as provided by Customer, if any, and all goodwill associated with the Customer Marks will inure to the benefit of Customer. Customer may not use Lyft’s name, logo, and other Lyft trademarks (the “Lyft Marks”) or anything confusingly similar therewith, whether registered or not, without Lyft’s prior written consent.
Customer will not, at any time, misrepresent its relationship with Lyft. Customer will not make any statements pertaining to Lyft, its Affiliates, the Lyft Marks, Lyft’s products or services or any other event or occurrence involving Lyft, if such statements may negatively affect Lyft’s reputation, present Lyft in the negative light, claim any rights in the Lyft Marks, degrade the distinctiveness of the Lyft Marks, or disparage or misrepresent Lyft, its products or services. Customer will not directly or indirectly challenge the validity or enforceability of any Lyft Marks, or otherwise do anything to diminish the value of the Lyft Marks or the goodwill associated therewith.
d. Data. All information provided by Customer through its use of the Lyft Platform or the LB Services as received, collected, compiled, aggregated or produced by Lyft in connection with this Agreement, including but not limited to, the information contained within the LB Portal and the Customer Account, shall be governed by the terms of the Lyft Privacy Policy, and Lyft shall have the right to use such data as set forth in the Lyft Privacy Policy. All information provided by a Rider through its use of the Lyft App shall be governed by the Lyft Terms of Service, including the Lyft Privacy Policy, and Lyft shall have the right to use such data as set forth in the Lyft Privacy Policy. For avoidance of doubt, Lyft may disclose such information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, without notice to Customer or Riders. Lyft determines the extent to which such data will be made available to Customers. Additionally, Lyft reserves the right to add, remove, and update features and functionality related to such data at any time and will not be responsible for any loss of data or any other damages. Customer agrees to use the data contained within Customer Account, the LB Portal, or any reports solely for legitimate business purposes related to managing and administering the LB Services including, but not limited to, business expense processing, accounting, program management, and budgeting purposes.
Notice and Consents
Notices. Customer acknowledges that certain LB Services require or allow Customer to provide name, phone number, and/or email address of Riders or other individuals to Lyft. As applicable to the LB Services, Customer is obligated to notify, and shall notify, Riders that Customer will receive information related to certain Rides, including but not limited to, for example, name of Rider, time of Ride, and Ride cost. For Rides requested via Concierge, Customer will ensure that those Riders consent to the following terms: “By accepting Lyft Concierge Ride services, you consent to Lyft’s Terms of Service, which are available at https://www.lyft.com/terms.”
Data Usage. Customer consents, and represents and warrants that it has obtained consent on behalf of each Rider to allow Lyft to use any information provided by Customer to (i) provide the LB Services; (ii) transmit a Ride request via the Lyft Platform to available Drivers; (iii) send automated transactional communications, including but not limited to SMS texts or phone calls, relating to a Ride or the provision of the LB Services; (iv) share the information with the Driver who accepted the Ride request, provided that the Driver will only receive the first name of the Rider and pick up and drop off location; and (v) collect, use, and share the information, subject to the Lyft Privacy Policy. At Customer’s direction, Lyft may share Customer or Rider information with (x) Customer’s authorized vendors, service providers, and subcontractors for purposes of performing its obligations hereunder and (y) TM Vendors in accordance with the privacy policies of such TM Vendors as set forth in Section 6(c) below. c. Travel Management Vendors. If Customer contracts with a third-party expense or travel management vendor (a “TM Vendor”) with respect to LB Services selected on an Order Form, then Customer may request, in writing to Lyft, that Lyft disclose certain Customer and Rider data to such TM Vendor. Upon receipt and acceptance of such a request, Lyft will release data to TM Vendor in accordance with the terms of this Section and on a frequency and method to be agreed between Lyft and Customer and/or TM Vendor. Customer acknowledges and agrees that such data may contain information specific to its Riders, and Customer represents and warrants that it has obtained all necessary consents from Riders for Lyft to share such Customer data with TM Vendor according to the privacy policies of the TM Vendor.
d.Record Maintenance. Customer agrees that it shall maintain records sufficient to demonstrate all applicable and necessary consents under this Section 6, and Customer agrees to make such records available to Lyft promptly, and no later than ten (10) days after receiving a request from Lyft for such records. Customer shall maintain such records for a period of not less than six (6) years from the last Ride request submitted for a Rider.
Representations and Warranties
Mutual Representations and Warranties. Each party represents and warrants to the other party that (i) it has sufficient rights and authority to enter into this Agreement; (ii) it grants the rights and assumes all of its respective rights and obligations set forth herein; and (iii) the person signing on the respective party’s behalf has the authority to execute and bind the respective party to this Agreement.
Customer Representations and Warranties. Customer represents and warrants that (i) it has obtained or will obtain, and it will maintain, all rights, permissions, and consents necessary under the TCPA and any other applicable Laws for Customer and/or Lyft to use an automatic telephone dialing system to call, text or otherwise contact the Rider or other individual associated with the phone number provided by Customer (whether a Rider or otherwise), including via SMS message or voice call, in relation to a Ride requested for or taken by a Rider, and/or Customer’s use of the LB Services; and (ii) it has obtained or will obtain, and it will maintain, all rights and permissions necessary under the CAN-SPAM Act and any other applicable Laws to enable Lyft to email Riders and other individual associated with the email address provided by Customer (whether a Rider or otherwise) solely in conjunction with providing the LB Services.
Rider Eligibility Representations and Warranties. Customer further represents and warrants that Customer is solely responsible and liable for (i) determining and monitoring a Rider’s eligibility for the LB Services, (ii) determining whether to bill and/or file claims for reimbursement from any federal, state, and/or commercial health benefit plan and/or program, including but not limited to Medicare, Medicaid, and any applicable government funded programs (collectively, “Payors”), for Rides completed via the LB Services, (iii) complying with all applicable federal, state, regional, and local Laws and regulations related to the billing and filing of claims, and (iv) billing and/or filing claims for reimbursement from Payors. Customer shall indemnify, defend, and hold harmless the Lyft Indemnified Parties (as defined in Section 10 below) from and against any and all claims, losses, damages, fines, penalties, and/or interest based upon and/or related to Rider eligibility, and the billing and/or submission of claims to any Payor. ANY LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL NOT APPLY TO ANY CLAIMS OR INCIDENTS RELATED TO CUSTOMER’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER THIS PARAGRAPH. This paragraph shall survive any termination or expiration of this Agreement.
DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH ABOVE AND TO THE FULLEST EXTENT
PERMITTED BY LAW, LYFT SPECIFICALLY DISCLAIMS ALL WARRANTIES
WITH RESPECT TO THE LYFT PLATFORM AND/OR THE LB SERVICES,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING,
COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES
RELATED TO THIRD-PARTY EQUIPMENT, MATERIALS, SERVICES OR SOFTWARE. LYFT PROVIDES THE LYFT PLATFORM AND THE LB SERVICES “AS IS.” LYFT DOES NOT WARRANT THAT THE LYFT PLATFORM AND/OR
THE LB SERVICES WILL MEET CUSTOMER REQUIREMENTS OR THAT THE
OPERATION OF THE LYFT PLATFORM AND/OR THE LB SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. LYFT DOES NOT GUARANTEE THE
AVAILABILITY OF DRIVERS OR WARRANT THAT ANY PARTICULAR RIDE REQUEST WILL BE ACCEPTED OR FULFILLED. TO THE EXTENT THIS
DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND
DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
Confidentiality
Definition. “Confidential Information” is any information, technical data, or knowhow furnished by a party (“Discloser”) to the other party (“Recipient”), whether written, electronic, oral or other form that: (i) is marked, accompanied, or supported by documents clearly designating the information as “confidential” or “proprietary”; (ii) is identified by Discloser as confidential before, during or promptly after the presentation or communication; or (iii) should reasonably be known by Recipient to be confidential.
b. Protection of Confidential Information. Recipient shall use the Confidential Information solely to fulfill its obligations and exercise its rights under this Agreement, and all Confidential Information shall remain at all times the sole and exclusive property of Discloser. Recipient shall not disclose or permit disclosure of any Confidential Information of Discloser to third parties, except that Recipient may disclose Confidential Information to its employees, agents, or contractors who have a need to know such information and are subject to enforceable obligations, no less stringent than those set forth herein, to maintain the confidentiality of such information. Each party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than a standard of reasonable care. Confidential Information does not include any information or materials disclosed to the Recipient by Discloser which Recipient can demonstrate by means of written evidence: (i) was already rightfully known to Recipient at the time of its receipt hereunder as shown by contemporaneous documents in the Recipient’s files; (ii) is or becomes generally available to the public other than by means of the Recipient’s breach of its obligations under this Agreement; (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality; or (iv) is independently developed by or on behalf of the Recipient as shown by contemporaneous documents in Recipient’s files without the use of or reliance on any Confidential Information of Discloser.
c.Compelled Disclosure. If Recipient receives a subpoena or other validly issued administrative or judicial process demanding the disclosure of Confidential Information or is otherwise required by Law to disclose Confidential Information, Recipient will provide Discloser with prompt written notice of such requirement so that Discloser may provide a redacted copy of the record and assert any defenses to disclosure of Confidential Information that may be available. If such protective order or other remedy is not obtained, or if Discloser waives compliance with the provisions of this Agreement, Recipient will furnish that portion (and only that portion) of Confidential Information that it is legally compelled or is otherwise legally required to disclose and shall use any available authorities to redact personal or business confidential information from such records to the extent consistent with applicable Law or the final judgment.
Confidential Information disclosed by Discloser to Recipient will at all times remain the property of Discloser.
If Customer is a public entity and receives a request for Lyft’s Confidential Information under applicable public records laws, Customer shall, unless prohibited by applicable law, (a) promptly notify Lyft of such request; (b) deny the request and/or provide Lyft with reasonable opportunity to object to disclosure; and (c) reasonably cooperate in any efforts made by Lyft to prevent disclosure. If Customer is nonetheless legally compelled or required to release Lyft Confidential Information, Customer will furnish that portion (and only that portion) of Lyft Confidential Information that it is legally compelled or is otherwise legally required to disclose.
Indemnification
Indemnification by Lyft.
1. Infringement Indemnity. Lyft will indemnify, hold harmless, and defend Customer and its directors, officers, employees, agents, stockholders, and Affiliates (collectively, the “Customer Indemnified Parties”) from and against all third-party demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs) related thereto (collectively, “Claim(s)”) alleging that the use of the LB Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent.
Options. If the use of the Lyft Platform and/or the LB Services by Customer has become, or in Lyft’s opinion is likely to become, the subject of any claim of infringement, Lyft may at its option and expense: (x) procure for Customer the right to continue using the Lyft Platform and/or the LB Services as set forth herein; (y) modify the Lyft Platform and/or the LB Services to make it non-infringing; or (z) if the foregoing options are not reasonably practicable, terminate this Agreement. This Section 10(a) states Customer’s exclusive remedy, for any claim by a third party alleging that the use of the LB Services as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or patent.
3. Limitations. Lyft will have no liability or obligation with respect to any Claim arising out of: (x) use of the Lyft Platform or the LB Services not in accordance with this Agreement; or (y) the combination, operation, or use of the Lyft Platform and/or the LB Services with other applications, portions of applications, products, or services where the Lyft Platform and/or the LB Services would not by itself be infringing.
Indemnification by Customer. Customer shall indemnify, defend and hold harmless Lyft and its directors, officers, employees, agents, Affiliates, successors and assigns (collectively, the “Lyft Indemnified Parties”) from and against any Claim arising from or related to (i) Customer’s or Customer’s employees’, agents’, or contractors’ acts or omissions or breach of this Agreement; (ii) violation of Customer’s representations and warranties in Section 7; (iii) Customer’s or Customer ’s employees’, agents’, or contractors’ failure to obtain, maintain or prove the consents required under Section 6 of this Agreement; (iv) Customer’s or Customer’s employees’, agents’, or contractors’ violation of applicable Law; (v) any activity under the Customer Account, except to the extent caused by Lyft’s breach of this Agreement; or (vi) the use of data by a TM Vendor pursuant to Section 6(c).
Conditions of Indemnification. As a condition of the indemnification obligations herein: (i) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Claim, provided, however, that the failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (ii) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party's consent in connection with any act or forbearance required by the Indemnified Party, such consent not to be unreasonably withheld); and (iii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense.
The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. The Indemnifying Party will pay all costs and reasonable legal fees following notice of the Claim, which shall be provided in accordance with this Section 10(c), and any settlement amounts agreed to be paid by the Indemnifying Party or any damages awarded against the Indemnified Party in connection with any such Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will neither settle any Claims for which it has an obligation to indemnify herein admitting liability or fault on behalf of the Indemnified Party nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER
PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL,
INDIRECT, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING UNDER THIS
AGREEMENT, WHETHER BY BREACH OF WARRANTY, BREACH OF
CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH
PARTY (OR THEIR AGENT) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AMOUNT OF ANY AND ALL LIABILITY
OF ONE PARTY TO THE OTHER FOR ANY CLAIM(S) ARISING FROM OR
RELATING TO THE AGREEMENT, SHALL BE LIMITED TO DIRECT AND
PROVABLE DAMAGES AND SHALL NOT EXCEED, IN ANY EVENT, THE LESSER OF (I) ONE HUNDRED THOUSAND DOLLARS ($100,000) OR (II) THE
CHARGES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE
TWELVE MONTHS PRECEDING THE EVENT OR OCCURRENCE GIVING RISE TO THE APPLICABLE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS
SECTION SHALL NOT APPLY TO ANY OUTSTANDING PAYMENT
OBLIGATIONS OF CUSTOMER.
Term, Termination, and Suspension
This Agreement shall commence on the date of Customer’s acceptance hereof and shall remain in effect until terminated as set forth herein (the “Term”). Either party may terminate this Agreement with or without cause upon thirty (30) days prior written notice to the other party. All outstanding payment obligations, the Business Associate Agreement (if applicable), and Sections 4-17 of this Agreement shall survive the termination of this Agreement. Lyft may also suspend the Customer Account immediately if: (i) Customer violates (or gives Lyft reason to believe Customer has violated) the Agreement or applicable Law; (ii) there is reason to believe the Customer’s use of the Lyft Platform and/or the LB Services is fraudulent or negatively impacting the operating capability of the Lyft Platform and/or the LB Services; (iii) Lyft determines, in its sole discretion, that providing the Lyft Platform and/or the LB Services is prohibited by Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Lyft Platform and/or the LB Services; (iv) subject to applicable law, Customer undergoes liquidation, commencement of dissolution proceedings, disposal of its assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceeding; or (v) there is a pending resolution of a legal dispute between the parties. Lyft will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with connection with any suspension pursuant to this Section.
Force Majeure
Except for Customer’s payment obligations hereunder, nonperformance of either party under this Agreement shall be excused to the extent and during the period that performance is rendered impossible by strike, fire, flood, earthquakes, epidemic or pandemic, governmental acts or orders or restrictions, failure of suppliers, or contractors, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party. Unless otherwise agreed to by the parties, each party will be responsible for the costs and expenses incurred by it in connection with this Agreement during the period of force majeure.
Governing Law
This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles. Subject to Section 15 of this Agreement, the parties consent to the personal and exclusive jurisdiction of courts located in the County of Orange, California. Each party waives a jury trial in any matter arising out of or relating to this Agreement.
Arbitration
Any dispute, claim, or controversy arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof (other than for claims or disputes related to the intellectual property of a party), shall be determined through binding arbitration under JAMS Comprehensive Arbitration Rules and Procedures. The parties shall equally share the fees and expenses of the JAMS arbitrator. The arbitration shall be conducted by a sole arbitrator chosen by the mutual agreement of the parties or, failing that, by JAMS under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. The parties will jointly bear the expense of any arbitrator. Any arbitration proceedings shall take place at a location mutually agreed upon by the parties to this Agreement. If the parties fail to agree upon a location, then such arbitration proceedings shall take place in San Francisco, California.
Assignment
Neither party may assign this Agreement (by operation of law or otherwise) without the prior written consent of the other party, and any prohibited assignment or sublicense will be null and void. Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate or to a successor in the event of a merger, sale, or acquisition of all or substantially all of the assigning party’s assets or stock without the other party’s prior written consent, provided that the assigning party shall give the other party prompt written notice of such assignment. This Agreement will be binding and inure to the benefit of the parties’ permitted successors and/or assignees.
Miscellaneous
This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written between the parties. No oral or written information or advice given by Lyft, its agents, or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. Customer’s use of the Lyft Platform and the LB Services is subject to this Agreement, as may be modified or updated by Lyft from time to time. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venture of the other. This Agreement shall not be construed to prohibit Lyft from entering into the same or similar agreements with other parties. If any provision or provisions of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Any ambiguity contained in this Agreement shall not be construed against any party as the drafter but shall be construed in accordance with its fair meaning. Waiver by either party of a breach of any provision of this Agreement or the failure of either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. In this Agreement, the words "including" and "include" mean "including, but not limited to.” All notices hereunder shall be in writing (including email). Notices sent by mail shall be sent to Lyft at 185 Berry Street, Suite 400, San Francisco, CA 94107 and to Customer at the address in the Customer Account. Notices sent by mail to Lyft shall also be copied to [email protected].
Exhibit "B"
Schedule of Services
Consultant shall provide access to the Services according to the timeframe requested by the City.
EXHIBIT “C”
insurance requirements
Insurance.
Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section.
Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so.
Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); or (3) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
Automobile Liability Insurance: Automobile Liability Insurance covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence.
Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with limits of not less than $1,000,000 per claim. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement.
Cyber Liability Insurance with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Contractor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.
Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds via blanket endorsement with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
Waiver of Subrogation. All policies of Commercial General Liability and Automobile Liability insurance shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City, its officials, officers, employees, agents, and volunteers, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Intentionally Deleted
Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver original certificates on forms approved by the City, together with all endorsements affecting each policy. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. Prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
Failure to Maintain Coverage. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced promptly so as to avoid a lapse in the required coverage, City may cancel this Agreement effective upon notice.
Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A- VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
Enforcement of Agreement Provisions (non estoppel). Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
Requirements Not Limiting. Requirement of specific coverage or minimum limits contained in this Exhibit are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as additional insureds to the subconsultant's policies. All policies of Commercial General Liability insurance provided by Consultant’s subconsultants performing work relating to this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City.
Exhibit “D”
Compensation
In full compensation for the Services rendered by the Consultant under the Agreement, the City shall pay the Consultant for the provision of Services at the following described variable calculated rates. Total compensation shall not exceed $350,000 per contract year, provided the City shall be solely responsible for monitoring the total spend in their Lyft account and ensuring that the total annual spend does not exceed the aforementioned maximum account.
Utilizing Lyft’s Dynamic Pricing Algorithm (“Algorithm”), each ride will be priced and billed to the City according to Lyft’s prevailing prices for the Orange County, CA region.
The Algorithm automatically adjusts fares on a ride-by-ride basis. The Algorithm ride is based on many factors, but includes: distance traveled, time of service, supply of available Lyft drivers in the area, demand of ridership, and insurance cost, etc.
Lyft will invoice the City a maximum of $5 per ride based on the fee structure (“Fee Structure”) below, provided, the City can independently and unilaterally change the amount of its maximum city subsidy within the Lyft platform.
Fee Structure:
Initial Rider Base Fare
Maximum City Subsidy
Total
$2
$5
Where the total fare exceeds $7, the rider is responsible for any additional fare in excess of $1 –The ride pays the initial $2 base fare in addition to any additional ride fare that exceeds $7, where the City pays the $5 maximum subsidy. Such additional ride fares in excess of $7 are charged directly to the rider.
Under the proposed Fee Schedule, the Consultant shall charge the rider a flat base fee of two dollars ($2) per ride; the Consultant shall then charge the City for the amount of the ride in excess of the two dollars ($2) flat base fee, up to a maximum of five dollars ($5) per ride; and the Consultant shall charge the rider for any additional amount if the total fare exceeds seven dollars ($7).
There shall be no up-front software implementation costs, nor any ongoing fees for technology and operations support.
ButterFLI WAV Trips (ADA):
WAV trips are subject to longer boarding and alighting times per trip, as well as the additional training and certifications required to meet the needs of WAV passengers. As such, on-demand WAV trips are priced using an alternative rate structure, provided by ButterFLI as Consultant’s subcontractor, that reflect the higher costs of service.
For the SC Rides program, Consultant shall provide ButterFLI services with a flat rate per ride, based on the following ADA Fee Structure:
Mon-Fri: $95.00 flat rate; no mileage or distance-based fare Sat/Sun: $125.00 flat rate; no mileage or distance-based fare Consultant will act as a direct pass through between ButterFLI and the City. No additional markups to the cost of each WAV trip delivered by ButterFLI will be added to the cost to the City.
FARE PAYMENT
Consultant will utilize its automated process of fare collection and agency invoicing. The Lyft platform collects customer co-pays automatically after each ride using the primary payment method designated on their Lyft account. At the end of a trip, the cost after deducting any agency provided subsidies is billed directly to the rider. Consultant will invoice the City for the subsidy portion as per the Fee Structure above on a monthly basis. 55452.01100\31193624.5
2 4914-0044-9079 v1
55452.01100\31193624.5
4914-0044-9079 v1
Attachment 2