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HomeMy WebLinkAbout09919 ORDINANCE NO. 9919 AN ORDINANCE APPROVING A SHARED ELECTRIC SCOOTERS LICENSE AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND BIRD RIDES, INC., A DELAWARE CORPORATION AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Shared Electric Scooters License Agreement (“Agreement”) dated April 26, 2021, between the City of Pueblo, a Colorado Municipal Corporation and Bird Rides, Inc., a Delaware Corporation, a copy of which is attached hereto and is incorporated herein by this reference, having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver said Agreement in the name of the City and the Acting City Clerk is authorized to fix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Agreement which are necessary or appropriate to implement the transactions described therein. SECTION 3. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on April 12, 2021 . Final adoption of Ordinance by City Council on April 26, 2021 . President of City Council Action by the Mayor: ☒ Approved on May 3, 2021 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # R-9 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: April 12, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Belinda Kimball, Acting City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE APPROVING A SHARED ELECTRIC SCOOTERS LICENSE AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION AND BIRD RIDES, INC., A DELAWARE CORPORATION AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT SUMMARY: Attached for consideration is an ordinance approving and authorizing the Mayor to sign a License Agreement with Bird Rides, Inc., a Delaware corporation (“Licensee”) for the operation of shared electric scooters in the City. PREVIOUS COUNCIL ACTION: Not applicable to this ordinance. BACKGROUND: Bird Rides, Inc. of Santa Monica, CA would like to operate a Shared Electric Scooter business in the City. The attached License Agreement sets forth requirements for the licensee to conduct business in the City. FINANCIAL IMPLICATIONS: The cost to the City of administering the Shared Electric Scooter Licenses will be offset by annual license fees of $500 for the first year and $200 per year thereafter. In addition, at the time of Licensee’s annual renewal of its License, Licensee agrees to make payment to the City of $0.10 per ride completed during the preceding year. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If City Council does not approve this Ordinance, Bird Rides, Inc.’s operation of shared electric scooters in the City will not be contractually regulated. RECOMMENDATION: The Mayor and City staff recommend approval of this Ordinance. Attachments: Proposed Ordinance LICENSE AGREEMENT This Shared Electric Scooters License Agreement(the"Agreement") is entered into this 26th day of April, 2021 (the "Effective Date") by and between Bird Rides, Inc., a Delaware corporation located at 406 Broadway #369 Santa Monica, CA 90401 (the "Licensee") and the City of Pueblo, Colorado, a Colorado municipal corporation, located at 1 City Hall Place, Pueblo, CO 81003 (the "City"). Licensee and City are sometimes referred to herein as a "Party"and, collectively,as the "Parties." Recitals A. Licensee has filed an application for a Shared Electric Scooters License ("License") pursuant to Section 9-9-61 et seq. of the Pueblo Municipal Code; and B. City has determined that Licensee is eligible to receive such License. Agreement NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Licensee and City agree as follows: 1. Grant of License. City hereby grants and Licensee hereby accepts a non-exclusive Electric Scooters License, for a term of one (1) year from the Effective Date and subject to the terms and conditions of this Agreement and Licensee's compliance with Section 9-9-61 et seq.and other applicable sections of the Pueblo Municipal Code and all applicable provisions of federal and state law. 2. Definition. A Shared Electric Scooter shall mean a device weighing less than 200 pounds, that (i) has handlebars and an electric motor; (ii) is solely powered by the electric motor and/or human power, and (iii) has a maximum speed of no more than 15 mph on a paved level surface when powered solely by the electric motor. 3. Transfer.The non-exclusive License granted hereby is not transferable. 4. Fees. On or before the Effective Date, Licensee shall pay City an initial annual license fee of$500. Thereafter, renewal license fees shall be$200 per year. In addition, to defray the cost to the City of administering this License, at the time of Licensee's annual renewal of this License, Licensee agrees to make payment to the City of$0.10 per ride completed during the preceding year. 5. Operating Regulations. During the term of this Agreement, Licensee agrees to comply with the following rules and regulations: a. Riders of shared electric scooters shall be 18 years of age or older. b. A shared electric scooter shall not be operated on sidewalks or other pedestrian walkways or paths in the City. 1 c. Shared electric scooters are to be operated on streets and where available, in bike lanes and bike paths. Shared electric scooters are to stay to the right of street lanes and yield the right of way to bicycles in bike lanes. d. Each shared electric scooter shall have easily visible contact information, including a toll- free telephone number and/or e-mail address to enable City employees and/or members of the public to make relocation requests or to report other issues with the scooters. e. Licensee shall not place a shared electric scooter in service which is capable of exceeding a maximum speed of 15 mph. f. Licensee shall maintain 24-hour customer service for customers and the public to report safety concerns, complaints, or to ask questions. Licensee shall maintain a multilingual website, call center, and/or mobile computer application customer interface that is available twenty-four hours a day, seven days a week. The aforementioned requirements shall also be compliant with the Americans with Disabilities Act. g. In the event a safety or maintenance issue is reported for a specific scooter, that shared electric scooter shall be made unavailable to riders and shall be removed from service. Any inoperable or unsafe scooter shall be repaired before it is put back into service. h. Licensee shall respond to reports of incorrectly parked shared electric scooters, shared electric scooters continuously parked in one location for more than 72 hours, or unsafe/inoperable shared electric scooters by relocating, re-parking,or removing the shared electric scooters, as appropriate, within 24 hours of receiving notice, except that Licensee shall respond within 4 hours of receiving notice in emergency situations. i. In the event Licensee does not timely respond, and the condition of the shared electric scooter cannot be easily remedied, such shared electric scooters may be removed by City crews with notice to Licensee and taken to a City facility for storage at the expense of the Licensee, at a cost not to exceed $100 per shared electric scooter. j. Licensee shall provide notice to all riders that: 1. Shared electric scooters shall not be operated on sidewalks or other pedestrian walkways or paths in the City; 2. Shared electric scooters are to be operated on streets, and where available, in bike lanes and bike paths; 3. Shared electric scooters are to stay to the right of street lanes and to yield the right of way to bicycles on bike lanes and bike paths; 4. Helmets are encouraged for all riders; and 2 5. Riding responsibly is encouraged, and Licensee will notify riders if repeated irresponsible riding is reported and recorded with identifying rider information. k. Licensee shall provide education to shared electric scooter riders on the City's existing rules and regulations, safe and courteous riding, and proper parking. 6. Parking of shared electric scooters. During the term of this Agreement, Licensee agrees to comply with the following parking rules and regulations: a. Riders of shared electric scooters shall park the vehicles upright on hard surfaces: 1. On the road, at any angle to the curb or edge of the road at any location where motor vehicle parking is allowed; 2. On the edge of a sidewalk, provided that normal and reasonable movement of pedestrian traffic is not impeded; 3. Beside a bicycle rack or in another area specifically designated for bicycle parking. b. Shared electric scooter riders are required to take a photo whenever they park their scooter at the end of a ride. 7. Indemnification. By accepting this License from the City, Licensee agrees to indemnify, defend and hold harmless City (and its officials, employees, and agents) from and against all actions, damages or claims, including reasonable attorneys' fees, brought against the City for personal or bodily injury or death to any person, or damage or destruction of any property, arising out of or resulting from the operation of shared electric scooters under this License, except for the negligence and/or willful misconduct of the City or its elected and appointed officials and employees acting within the scope of their employment. City's right to indemnification shall be contingent on City reasonably notifying Licensee following receipt or notice of any claim. 8. Insurance. Licensee shall provide City with proof of insurance coverage exclusively for the operation of shared electric scooters including: (a) Commercial General Liability insurance coverage with a limit of no less than $1,000,000.00 for each occurrence and $2,000,000.00 aggregate; (b) Automobile Insurance coverage with a limit of no less than $1,000,000.00 for each occurrence and $1,000,000.00 aggregate; and (c) where Licensee employs persons within the City, Workers' Compensation coverage of no less than the statutory requirement. 9. Data Sharing. Within fifteen(15) days after the end of any calendar month, Licensee shall provide the City anonym ized fleet and ride activity data for the previous month for all trips starting or ending within the jurisdiction of the City on any vehicles of Licensee. To ensure the individual privacy and anonymity of Licensee's customers, personally identifiable information shall not be included in such reports. All such data shall be safely and securely stored by the City which shall implement administrative, physical, and technical safeguards to protect, secure, and, where appropriate, encrypt or limit access to the data. Any such data provided shall be treated as trade secrets and proprietary business information 3 and shall not be disclosed by the City in response to public records requests and requests by third parties except with the consent of Licensee or pursuant to a Court Order. 10. Suspension or Revocation of License. a. The City's License Officer,after issuing a notice of the alleged violation and after providing Licensee a right cure such deficiency within 30 days, may suspend or revoke this License for cause, defined as acts or omissions in violation of this Agreement, provided that the Licensee is provided with an opportunity for a hearing prior to such suspension or revocation. b. If Licensee believes the alleged violation or penalty imposed by the License Officer pursuant to this Agreement is unfounded, incorrect or inappropriate, Licensee may appeal the issue to the Mayor or his or her designee. Such appeal shall be in writing and shall state with specificity the grounds for the appeal. The appeal shall be filed within 14 days of receipt by the Licensee of the notice of License suspension or revocation. Pending the completion of the appeal, the License shall remain in full force and effect. The Mayor or designee shall hold a hearing within 30 days of receipt by the Mayor of the appeal. The Mayor or designee shall issue a written finding on the appeal within 14 days of the hearing. The Licensee may waive the hearing and request the Mayor or designee to decide the matter on the City's records and the written documents submitted by the Licensee. The Mayor's or the designee's decision shall be final. 11. Waiver. No waiver of any breach or breaches of any provision, covenant or condition of this Agreement shall be construed to be a waiver of any preceding or succeeding breach of such provision, covenant or condition, or of any other provision, covenant or condition. 12. Representations and Warranties of City. The City represents and warrants to Licensee as follows: (a) City has full power, capacity and authority to execute and deliver this Agreement and all other documents required to be executed and delivered by City under this Agreement and to perform its obligations hereunder. (b) This Agreement has been duly authorized, executed and delivered by City and constitutes the legal, valid and binding obligation of City, enforceable against City in accordance with its terms. 13. Representations and Warranties of Licensee. Licensee represents, warrants and covenants as follows: (a) Licensee has full power, capacity and authority to execute and deliver this Agreement and all other documents required to be executed and delivered by Licensee under this Agreement and to perform its obligations hereunder. (b) This Agreement has been duly authorized, executed and delivered by Licensee and constitutes the legal, valid and binding obligation of Licensee, enforceable against Licensee in accordance with its terms. 4 14. Notices. Any notice required or permitted to be given or delivered under this Agreement shall be in writing and shall be given by personal delivery, or by the United States Postal Service, by registered or certified mail, postage prepaid, or reputable national overnight courier service: (a) If to City,addressed to: Mayor City of Pueblo 1 City Hall Place, 2nd Floor Pueblo, Colorado 81003 with a copy to: City Attorney 1 City Hall Place, 3rd Floor Pueblo, Colorado 81003 (b) If to Licensee, addressed to: Licenses Bird Rides, Inc. 406 Broadway #369 Santa Monica, CA 90401 or to such other address or person as any Party may from time to time specify in a writing delivered to the other Party in the manner provided in this paragraph. Any notice shall be deemed delivered on the day on which personal delivery is effected or three (3) days after deposit in the mail in the case of registered or certified mail, and one (1) business day after deposit in the case of overnight courier. 15. Modification. No subsequent modification of any of the terms of this Agreement shall be valid or binding upon the Parties or enforceable unless made in writing and signed by the Parties. 16. Entire Agreement. All understandings and agreements heretofore had between the Parties hereto considering the subject matter hereof are merged into this Agreement which alone fully and completely expresses the agreement and understanding of the Parties with respect to the License. This Agreement is entered into after full investigation, neither Party relying upon any statement or representation, not embodied in this Agreement, made by the other Party. 17. Captions. The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof. 18. Validity. If any provision of this Agreement shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement. 5 19. Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of Colorado (without giving effect to its choice of law principles). 20. Interpretation. Whenever the context so requires, the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. In addition, the Parties acknowledge that the Parties and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or amendments hereto. 21. Third Parties. Licensee and City are the only Parties to this Agreement and are the only Parties entitled to enforce this Agreement. Nothing contained in this Agreement nor any provision hereof is intended to give nor shall be construed to give or confer, directly or indirectly, or otherwise, upon any third party any right, remedy or benefit hereunder. 22. Venue and Waiver of Trial by Jury. CITY AND LICENSEE HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE DISTRICT COURT, PUEBLO COUNTY, STATE OF COLORADO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSE AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN THE DISTRICT COURT OF PUEBLO COUNTY, STATE OF COLORADO. LICENSEE AND CITY AGREE THAT THE PROVISIONS OF THIS PARAGRAPH 22 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. TO THE FULL EXTENT PERMITTED BY LAW, LICENSEE AND CITY HEREBY WAIVE THEIR RIGHTS TO A TRIAL BY JURY. 23. Liability of City. In no event shall City, its officers, agents or employees be liable to Licensee for damages, including without limitation, compensatory, direct, punitive, indirect, special or consequential damages, resulting from or arising out of or related to the License or this Agreement or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Licensee hereby waives and discharges City, its officers, agents and employees from all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver, discharge or release of Licensee's obligations under this Agreement. In the event of a breach of this Agreement by the City, Company's sole and exclusive remedy shall be to bring an equitable action for specific performance in the District Court of Pueblo County, Colorado. Such violations may be restrained or such obligations enforced by injunction at the instance and request of Licensee without the showing of any special damages or an inadequate remedy at law. 24. Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed for all purposes to be an original, and all such counterparts shall together constitute but one and the same original. Executed at Pueblo, Colorado, the day and year first above written. CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION - ` �N�t%bATTEST: By: Nicholas A. radisar, Mayor S, it ` Marisa t;Iler,S-1/4t) Clerk 6 BIRD RIDES, INC. A Pc/ CORPORATION w By: (Signa ure) (Print Name) 4r1/' 5 A a (Print Title) 1-)('� t c,,f C i l �'� �s c_ STATE OF ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2021 by , as of Bird Rides, Inc., a corporation. Witness my hand and official seal. My commission expires: Notary Certificate Attached [ SEAL] Notary Public 7 • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 �: .eeer c,... ,k,,r : rrrr,,,,,,mc r�:a,,,,-,;p,F>�:.mn ",.. — �sn zo- . e A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness,accuracy,or validity of that document. State of California ) County of 0 wtcs,+-r.n ) On Oyj t7 a.I before me, �,.,,F// j / .'3. L.,--- —c, i,si, ate Here Insert Name and Title of the Officer personally appeared AuS1 r '•, f i vcI Yji w Al Name( of Signer( 11 , who proved to me on the basis of satisfactory evidence to be the person('whose name dbare subscribed to the within instrument and acknowledged to me thaw/she/th�eyy executed the same in 0/her/their authorized capacity(i ),and that by s/her/their signature('on the instrument the personK or the entity upon behalf of which the person) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 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