Legal Considerations in Relationships Between Transit Agencies and Ridesourcing Service Providers (2018)

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99 VI. TRANSIT AGENCY SURVEY QUESTIONNAIRE RESULTS As noted in the discussion of the growth of RSPs, numerous transit agencies either have entered into—or are considering entering into—relation- ships with RSPs (primarily, but not exclusively, TNCs). A survey questionnaire distributed to twenty- four public agencies captured information about twenty-nine of these projects (including several that were considered for TNC service but not imple- mented as such). Although the survey included a relatively small number of projects and included several non-RSP projects, the survey results do indi- cate likely transit agency legal concerns regarding MOD projects, as well as common elements of these projects. Common project elements are discussed in more detail in Section B. Highlights include: • Over 70% of the twenty-nine reported projects were pilots. • Relatively few of the projects (10%) replaced fixed-route service; even fewer replaced previous paratransit service (3%). • Over 35% of the projects were reported as involving complementary paratransit, albeit not necessarily delivered by TNCs. • About 27% of the projects were reported as requiring TNCs to provide WAVs. ADA, public records/data collection, and liability/ indemnification were the legal issues most often considered of concern in evaluating specific projects and reported by respondents as actually being covered in the contracts that were negotiated. There was some shifting in the reported prevalence of legal issues between those of concern in evaluating the TNC relationship and those that were actually included in the resulting contracts. For example, the frequencies for the legal issues most often flagged varied between being of concern and being included in the contract as follows: • ADA: Concern—69%; Included—66%. • Public records/data collection: Concern—66%; Included—77%. • Liability/indemnification: Concern—59%; Included—72%. • Bac k g r ou nd c he c k s : C onc er n — 3 3 % ; Included—72%. • Procurement requirements: Concern—55%; Included—27%. • Drugs/alcohol: Concern—52%; Included—27%. Based on responses concerning influences on project parameters, some of these shifts could have been due to concerns about legal issues, leading to structuring the projects so as to avoid needing to reports.744 In addition, as to Lyft’s demand that SFMTA be barred from accessing the subpoenaed information, the City Attorney stated that it was essential to the City Attorney’s investigation to share that information with “the City agency tasked with regulating the use and enjoyment of San Francisco’s streets, bikeways, and transit systems.”745 On October 5, 2017, the Superior Court of San Francisco held hearings on both petitions. Uber agreed to comply fully with three of the items and to work with the plaintiffs to comply with four of the remaining items. On October 25, 2017, the court rejected Uber’s argument that it need not produce the CPUC reports and ordered Uber to produce the reports; Uber has appealed.746 In February 2018, the City Attorney’s office reached an agreement with Lyft that allowed relevant city experts to review the CPUC report information that Lyft had provided in response to the city’s subpoena.747 [E-21] 4. Surge Pricing In 2014, the NYAG reached an agreement with Uber limiting surge pricing during emergencies and natural disasters in compliance with New York’s price gouging statute.748 744 S.F. v. Uber Techs., Inc., Case No. CPF-17-515767 (Cal. Super. Ct. July 21, 2017) (Petition for an order requir- ing Uber Technologies, Inc. to comply with administrative subpoenas, at 3; Appendix A), https://imgquery.sftc.org/ Sha1_newApp/ViewPDF.aspx?PDFName=05954499& DocumentId=05954499&MindsCat=C; S.F. v. Lyft, Inc., Case No. CPF-17-515768 (Cal. Super. Ct. July 21, 2017) (Petition for an order requiring Lyft, Inc. to comply with administrative subpoenas, at 3; Appendix A), https://img query.sftc.org/Sha1_newApp/ViewPDF.aspx?PDFName= 05954526&DocumentId=05954526&MindsCat=C. 745 City and County of San Francisco Lyft, Case No. CPF-17-515768 (Petition for an order requiring Lyft, Inc. to comply with administrative subpoenas, at 3). 746 S.F. v. Uber Techs., Inc., Case No. CPF-17-515767 (Cal. Super. Ct. Oct. 25, 2017). 747 Press Release, Herrera secures agreement with Lyft on subpoenaed operational data (Feb. 14, 2018) https://www.sfcityattorney.org/2018/02/14/herrera- secures-agreement-lyft-subpoenaed-operational-data/ (accessed Feb. 20, 2018). [E-21] 748 Press Release, A.G. Schneiderman Announces Agree- ment With Uber To Cap Pricing During Emergencies And Natural Disasters (July 8, 2014), https://ag.ny.gov/press- release/ag-schneiderman-announces-agreement-uber-cap- pricing-during-emergencies-and-natural. The law in question prohibits parties distributing essential consumer goods or service from charging “unconscionably excessive prices” dur- ing an “abnormal disruption of the market.” Such disruption is defined as “any change in the market, whether actual or imminently threatened, resulting from stress of weather, con- vulsion of nature, failure or shortage of electric power or other source of energy, strike, civil disorder, war, military action, national or local emergency, or other cause of an abnormal disruption of the market which results in the declaration of a state of emergency by the governor.” N.Y. Gen. buS. § 396-r, http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO: (form).

100 unable to be confirmed for the remaining five identi- fied agencies despite multiple efforts. Accordingly, the survey questionnaire was sent to thirty public agencies (twenty-seven transit agen- cies, one state rail agency, and two local govern- ments) that had been identified as falling into one of the described categories and had indicated a will- ingness to participate in the survey. Ultimately, twenty-one transit agencies, as well as the state rail agency and two local governments, submitted survey responses. One transit agency provided responses for two projects, and two transit agencies each provided responses for three projects, bringing the total number of survey responses to twenty-nine. Many of the questionnaire responses did not include answers to each question; thus, the totals in various categories do not all add up to twenty-nine. Projects of the agencies that responded to the survey questionnaire—including additional projects of these agencies that were not the subject of survey responses—are described in Appendix D. B. Project Status and Project Elements 1. Project Status As of the date of the questionnaire responses (submitted between June and October 2017), three of the twenty-nine reported projects were reported as still under consideration. Of the twenty-six projects that were either ongoing or completed, eight had been the subject of RFPs, twenty had one or more contracts in place (either current or for a completed project), and two TNC projects were proceeding with- out a contract. A total of four TNC projects were still under contract negotiation at the time of the survey response. Respondents for two of the projects indi- cated that those projects were considered for imple- mentation with TNCs but pursued using another delivery method (one using taxis and the other using a combination of taxis and transit agency vehicles). The reasons given for those decisions were a deter- mination that a taxi voucher program, combined with the agency’s own demand response vehicles, was more appropriate and the fact that the TNC would not provide appropriate data. 2. Project Elements The questionnaire contained a series of questions about specific project elements. Table 1 provides highlights of project description elements, indicat- ing the number of responding transit agencies that included such elements, did not include them, or did not answer. address those issues in the contract. The frequencies at which all of the covered legal issues were reported as being of concern and included in contracts are discussed in greater detail in Section C. The survey results also underscore the fact that standard agency contracts may be insufficient to address critical issues inherent in TNC relationships, such as data needs and contractor liability, as well as the need for more FTA guidance in applying FTA requirements to these relatively new relationships. A. Questionnaire Design and Distribution One of the goals of this digest was to obtain suffi- cient information to be able to analyze the legal concerns of transit agencies involved with RSPs. Therefore, a survey questionnaire (Appendix C) was drafted to gather information directly from transit agencies in order to facilitate that analysis. Topics covered by the questionnaire included project status, RFP/contract status, project description, legal issues of concern, legal issues covered by the agency’s contract, litigation, lessons learned, and best practice recommendations. Additional questions were included that focused on reasons for an agency decision to pursue a project without TNC involvement, and the influence various legal issues may have had on project parameters, including lack of TNC involvement. Based on research concerning RSP-related proj- ects, thirty-eight agencies (including two local governments with relevant projects) were identified as possibly being relevant to participate in the survey. Thirty public agencies agreed to participate in the survey. Two agencies declined to participate. Another agency felt that it could not meaningfully participate because of the lack of TNC involvement in its microtransit service, but it did provide back- ground information about its service.749 Contacts were 749 The project in Salem, Oregon did not involve TNCs per se, but did use TNC-like technology to provide near real-time on-demand service to designated pick-up and drop-off points, and to provide connections to fixed route bus lines. See West Salem Connector: A Year In Review, CherrIotS, Salem-Keizer Transit, June 2016, http://www. cherriots.org/sites/default/files/Connector%20One%20 Year%20Report.pdf; Elizabeth Peters, Cherriots Extends West Salem Connector Pilot Project Until 2017, Strategic Economic Development Corporation, June 29, 2016, http:// www.sedcor.com/news/298098/Cherriots-extends-West- Salem-connector-pilot-project-until-2017.htm. In April 2017, the Cherriots Board of Directors voted to close the pilot project period, extend operation of the West Salem Connector through the end of December 2017, and imple- ment a replacement fixed route service on January 2, 2018. Minutes of the Board of Directors Meeting, Salem Area Mass Transit District, April 27, 2017, at 6, http:// www.cherriots.org/sites/default/files/MINUTES%20 BD%2004-27-17%20APPROVED.pdf.

101 entered into with a TNC (Question 11) or had influ- enced the parameters of the project (Question 12). The response rate for these overall questions varied. Responses to Question 11 indicated that the nine- teen legal issues had influenced the agency’s type of choice of relationship for fourteen projects and did not do so for eleven projects, with four project ques- tionnaires not replying to this question. Responses to Question 12 indicated that the nineteen legal issues had influenced the project parameters for seventeen projects and did not do so for nine proj- ects, with three project questionnaires not replying to this question. Table 2 indicates the distribution of responses, by legal issue, to Questions 10 and 15 among question- naires that included at least some response to those questions. For example, of the 86% of projects (twenty-five out of twenty-nine) for which at least some of the legal issues listed under Question 10 were of concern, 80% (twenty out of twenty-five) indicated that ADA was an issue of concern. The level of concern for ADA issues was followed closely by public records/data collection at 76% (nineteen out of twenty-five). Table 2: Distribution of Responses to Questions 10 and 15 by Legal Issue Legal Issue Question 10 Question 15 ADA 20 12 State or local accessibility requirements 11 10 Other state laws 9 12 Other local ordinances 10 7 Liability/indemnification 17 13 Public records/data collection 19 14 Privacy 12 8 Labor/13(c)/employment classification 9 3 Public safety: Background checks 16 6 Public safety: Vehicle inspections 14 3 Public safety: Business license 8 3 Public safety: Insurance 13 10 Public safety: Drugs/alcohol 15 5 Environmental justice/Title VI 11 3 Ensuring agency compliance with FTA requirements 13 5 Parking/ROW sharing 3 2 Signage/advertising 6 6 Procurement requirements, including but not limited to competitive bidding 16 5 Ensuring compliance with state requirements not covered by preceding topics 7 5 Table 1: Highlights from Questionnaire of Project Description Elements Project Elements Yes No Did not indicate Taxi alternative 12 16 1 Federal funding 7 22 0 Agency payment to TNC (or TNC substitute) 20 8 1 Pilot 21 7 1 Replace previous fixed-route service 3 26 0 Involve integrated trip-planning 7 22 0 Involve integrated payment options 8 21 0 Involve complementary paratransit 11 16 2 Replace previous paratransit service 1 28 0 Require TNCs to provide WAVs 8 20 1 Of the almost 70% of respondents that indicated they did not require the TNC to provide WAVs, one indicated that when WAVs are requested by passen- gers, the agency provides that service, and one indi- cated that another contracted provider delivers accessible service. A third agency that responded “no” to that question had in fact contracted with a non- TNC provider that was required to provide WAVs. C. Legal Issues of Concern The questionnaire also asked respondents to indicate which, if any, of nineteen legal issues were of concern to the agency in deciding whether to contract with TNCs (Question 10) and which, if any, of the same issues were in fact covered in the project contract (Question 15). These two questions were not formatted as yes/no questions, but rather were formatted as checklists of the nineteen issues. The survey questionnaires for twenty-five projects responded at least in part to Question 10, while only eighteen survey questionnaires contained some response to Question 15. The lower response rate for Question 15 was due in part to the fact that a number of agencies had not yet concluded their contract negotiations at the time they submitted their questionnaire responses. In addition, the respondents were asked which, if any, of those issues had influenced the agency’s deci- sion concerning the type of relationship, if any, 750 Of the projects that received federal funding, six received MOD Sandbox grants and one received funds under the Congestion Mitigation and Air Quality Improve- ment Program.

102 sharing in this regard. Other issues referenced were the ability to comply with state and federal law, keeping project costs under a competitive procure- ment threshold, the availability of WAVs, the avail- ability of a call center, and requiring three or more partners in order to use TNCs and still remain in compliance with FTA’s drug and alcohol rule. Six agencies elaborated on whether any of the legal issues influenced the project parameters (Ques- tion 12). Five of them specified that ADA concerns had influenced project parameters. Three of them cited Title VI in this regard. The need to have multi- ple providers and the uncertainty about FTA require- ments limiting the agency’s ability to use federal funding to contract with TNCs were also referenced. In addition, Question 13 asked whether the speci- fied legal issues had influenced the agency’s decision not to enter into a relationship with a TNC; Question 14 asked whether the specified legal issues had influ- enced a TNC’s decision not to enter into a relationship with the agency. Only three agencies answered affir- matively to Question 13 and one to Question 14. The Question 13 explanations were: the drug testing and background checks taxi companies require for their drivers, and the data sharing those companies agreed to under past partnerships were strong factors in deciding to use the specified taxicab company as the provider in the on-demand system that was the subject of the questionnaire; inability to ensure compliance with ADA and Title VI requirements could result in a challenge; confidential. The response concerning Ques- tion 14 was that the rationale was confidential. D. Other Contract Issues/Litigation Six agencies noted revisions to standard third- party contract provisions. These revisions included developing an entirely new agreement for the TNC relationship, revising the agency’s standard third- party contract provisions by adding increased data security obligations on the agency’s part to satisfy TNC requirements, negotiating the terms and condi- tions using provisions from standard agreements of both the agency and TNC, revising the confidential- ity provision, being listed as additional insured, and indemnification clauses. Four agencies noted that contract clauses were drafted specifically to resolve conflicts/difficulties posed by the TNC relationship. These clauses covered the following issues: ensuring that the customer data received from the TNC is sufficient to meet standard auditing requirements, adding the transit agency as an additional insured to the TNC insurance policy, drafting a new dispute resolution provision, and requiring that the service area and ADA service area requirements match. It should be noted that in some instances, an agency identified a particular issue as of concern under Question 10, but did not indicate that issue as having been covered under Question 15, while in other instances Question 15 identified issues as being covered by the contract that were not identi- fied as being of concern under Question 10. Questions 10 and 15 also requested information about any other legal issues of concern in addition to those specified previously. No such issues were spec- ified in response to Question 15. Only two issues were raised in response to Question 10: driver train- ing and the employment status of the drivers. Table 3 indicates the distribution of responses by legal issue to Questions 11 and 12 among question- naires that indicated one or more legal issues had influenced the agency’s choice of type of relationship to enter into with a TNC and/or influenced the project parameters. Note that several agencies answered affirmatively to either Question 11 or Question 12, but either did not specify which issue or specified an issue other than one of the nineteen specified legal issues. Table 3: Distribution of Responses to Questions 11 and 12 by Legal Issue Legal Issue Question 11 Question 12 ADA 4 11 State or local accessibility requirements 1 0 Other state laws 1 0 Other local ordinances 0 0 Liability/indemnification 3 1 Public records/data collection 5 2 Privacy 1 1 Labor/13(c)/employment classification 1 0 Public safety: Background checks 2 1 Public safety: Vehicle inspections 1 0 Public safety: Business license 0 0 Public safety: Insurance 2 1 Public safety: Drugs/alcohol 1 1 Environmental justice/Title VI 3 7 Ensuring agency compliance with FTA requirements 4 5 Parking/ROW sharing 0 0 Signage/advertising 1 0 Procurement requirements, including but not limited to competitive bidding 2 0 Ensuring compliance with state requirements not covered by preceding topics 1 0 Other 2 2 Issue not specified 4 3 Six agencies elaborated on whether any of the legal issues influenced the agency’s choice of type of relationship to enter into with a TNC (Question 11). Two of them specified the importance of data

103 F. RFPs Seven project RFPs for on-demand (TNC and/or taxi) service, as well as one microtransit RFP, were reviewed for this digest. The following discussion first summarizes on-demand RFP provisions that either appeared to be specific to the RFP in question (as opposed to general requirements included in all of the agency’s RFPs) or—in the case of a limited number of general provisions—particularly of inter- est in the context of contracting with TNCs (although some will also be relevant to microtransit). The summary highlights elements of project description/ delivery that appear likely to be significant in the context of contracting with RSPs. LA Metro’s RFP for microtransit service is discussed following the summary of on-demand provisions. 1. On-Demand Mobile Transportation Technology All of the RFPs at least addressed desired tech- nology. Requirements included providing an online booking platform and providing alternative plat- forms, including call centers, for booking in addition to online. Rather than specifying desired methods, three of the RFPs asked for descriptions of how riders would be able to book rides. 2. Service Offerings Six of the RFPs addressed some aspect of the desired service offerings. Of the five that addressed accessibility, two specified the need for WAVs. Other requirements included transit agency approval of any WAV subcontractors, verification of the avail- ability of wheelchair accessible equipment, contrac- tor screening of program enrollees, and inclusion of geofencing or other method to limit trip origins and destinations. 3. Fare Payment Structures Five of the RFPs addressed fare payment struc- ture, with two of them specifying that there must be payment options for unbanked customers. One of the RFPs required several subsidy options. 4. Data All of the RFPs addressed trip data requirements. Two of them required documentation that included specific customer information; both of those projects were ultimately awarded to providers other than TNCs. Two other RFPs specified that the contractor would have to provide raw trip data at an individual customer level, but it was not clear whether this included identifiable customer information. 5. Compliance with Government Regulations Six of the RFPs referenced compliance with government regulations, mostly under the standard None of the transit agencies reported litigation (threatened or filed) regarding their TNC relationships. E. Lessons Learned/Best Practices The questionnaire included requests for descrip- tions of lessons learned (related to legal issues) in negotiating with the TNC and/or operation of the agreed-upon service and of any best practices that the agencies would recommend based on their expe- riences negotiating with TNCs. The following summary of responses omits those that did not touch on legal issues and categorizes responses as provided in the actual responses. 1. Lessons Learned Six respondents provided an answer to the request for a description of any lessons learned regarding legal issues. Two agencies highlighted the need to be clear about the data required for the proj- ect and to clearly outline those requirements in the contract. Other lessons learned included the fact that the standard service contract may be incompat- ible with TNC business practices; the need to allow for innovation, that is, fast changes/adjustments; and the need to “have risk and legal involved from the beginning.” 2. Best Practice Recommendations Eleven agencies responded to the request for a description of best practice recommendations. Issues that were flagged included the need for legal counsel before entering contract negotiations; the impor- tance of TNC indemnification against legal liability, including responsibility for negligence; specifying data needs (as early as the RFP if possible), particu- larly the data needed to evaluate project success; the benefits of partnering TNCs with paratransit providers; the need to ensure competition by issuing an RFP; the need for institutional collaboration within the agency to develop an understanding of the current regulatory limits on procuring TNC services; incorporating geofencing requirements into the contract to allow for flexibility in customiz- ing the project discount zone; structuring the contract to allow for future expansion or project enhancements, subject to the clear requirement that the TNC deliver what was in its project proposal; and specifying marketing requirements. Also mentioned were the need to examine the agency’s tools and institutional practices to determine if they impede entering into innovative relationships and the need to be cognizant of the leverage that public agencies have in negotiating with TNCs, particu- larly as to the parameters of the relationships.

104 the fleet that is accessible, and plans to increase the number of WAVs. 10. Response Time Four of the RFPs addressed response time. Two specified response windows; two asked for descrip- tions of response times. 11. Shared Ride One of the RFPs specified as a program parame- ter that the service provider “aim to minimize the number of vehicles used at any given time by match- ing as many customers as possible traveling at the same time from similar origins to similar destina- tions in one single vehicle, while ensuring that the above-stated benchmarks for pick-up and in-vehicle times are always met.” 12. LA Metro Microtransit RFP In addition to including a two-part process—Part A: program design and Part B: program implemen- tation—the LA Metro RFP contained several note- worthy provisions. Two of these are included in the contract documents that are included in the RFP: the procedure for negotiating Part B after comple- tion and review of the Part A work product, and a requirement (which applies to all LA Metro contracts) that the contractor familiarize itself with specified statutory and regulatory provisions related to charter bus service to ensure that the perfor- mance of Part A of the Statement of Work complies with those charter bus limitations. The Instructions to Proposers provides that responses to the RFP are LA Metro’s exclusive property; all questions, corre- spondence, and proposals submitted in response to the RFP are a matter of public record; LA Metro is not liable or responsible for disclosure of that record; and that the proposer expressly agrees to indemnify LA Metro against liability arising from LA Metro’s disclosure of any portion of the proposer’s response or failure to disclose any redacted portion of the response. The other provisions of interest, summa- rized further, were included in the Statement of Work. Mobile Technology.—The microtransit platform must include, in addition to real-time dynamic vehi- cle routing, integration of mobile payment with the LA TAP payment system as a payment option and an interface with Google Maps. As was the case for several of the on-demand RFPs, the LA Metro RFP requires customizations for riders with limited use of smartphone technology, ADA-compliant features of the mobile app and browser, and payment options for customers without bank accounts. It also requires customizations for riders with advanced use of smartphone technology. RFP provisions. In addition, coverage of such compli- ance under the Statement of Work (or similar section of the RFP) included: • Ability of contractor to work within current government regulatory framework for transporta- tion services and to adapt service proposals and promotional agreements to different public trans- portation funding sources. • Requiring detail of the bidder’s approach to support the transit agency in meeting ADA equiva- lent service requirements. • Requiring detail of the methodology to ensure vehicles are compliant with applicable federal, state, and local standards with regard to safety and maintenance. • Specifying that the contract will require con- tractors to comply with all FTA regulations, policies, procedures and directives, including those in the transit agency’s master agreement, and the ADA. • Specifying the contract will include federal grant contract provisions. 6. Driver Qualifications Four of the RFPs addressed driver qualifica- tions, with two of them requesting descriptions of the bidder’s driving screening (including criminal background checks) and training as to accommo- date customers with disabilities, and one request- ing a more general description of the process for hiring drivers to ensure safe service delivery. One of the disability training provisions specified train- ing for serving customers with disabilities, specifi- cally accommodating customers traveling with service animals, communicating with customers who are deaf/hard of hearing, and escorting custom- ers who are blind in and out of vehicles. Two of the RFPs asked for descriptions of how the bidders would ensure an adequate supply of drivers. One asked for a description of the process for ongoing evaluation of drivers. 7. Insurance Two of the RFPs included an insurance provision that required commercial business auto insurance that covered non-owned and hired vehicles in addi- tion to those that are leased or owned. One of the RFPs specifically referenced the state TNC statute requirements for insurance. 8. Option to Terminate/Extend Contract Five of the RFPs included one of these options. 9. Vehicle Requirements Three of the RFPs addressed vehicle require- ments, primarily focused on wheelchair accessibility, including the total number of WAVs, the percent of

105 services to riders using the [TNC] App under license from [TNC].” One contract included in a similar defi- nition that the driver had no relation to the contract- ing agency and required that the TNC include such notice in its passenger agreement. None of the OTP contracts addressed this issue. 2. Data Eight of the ten TNC contracts required monthly reports; one required weekly reports; one required a report at the end of the project. All ten of these TNC contracts specified the anonymized data to be provided. The level of detail ranged from as little as total number of trips and total fees incurred, to as great as origin/destination, date and time, actual distance, wait times, and travel times for each trip invoiced by the TNC.751 In contrast, one of the OTP contracts required specific individual passenger information as part of the required reporting, as well as information on the number of wheelchair users and of late trips, while another specified that the provider must support audit, state DOT, FTA, and NTD reporting and compliance requirements. In addition, two TNCs required that the contracting agency agree to additional data security measures. 3. Independent Contractor Status of the Parties All ten TNC contracts contained relatively stan- dard independent contractor language, that is, that Data.—The data that will be tracked through the required data portal includes origin, destination, time of day, route, age, gender, race/ethnicity, and the income level/household size. Regulatory Compliance.—In addition to specify- ing contractor responsibility for complying with ADA and Title VI, the RFP Statement of Work speci- fies the need to comply with the Executive Order on Environmental Justice and to implement measures to protect personally identifiable information to ensure compliance with applicable law and LA Metro policy. The RFP specifies ten languages in which communications should be available. Modification of Requirements.—The Statement of Work specifies that Part B tasks will be refined and finalized based on the Part A deliverables. Moreover, the selected contractor will be implementing at least one of the selected microtransit pilot zones from Part A and should be willing to move or adjust the zone, as necessary. G. Contracts Sixteen project contracts covering delivery of transportation services (as opposed to marketing or app integration) were reviewed for this digest, ten of them with TNCs and six with other transportation providers (OTPs). Eight common issues were identi- fied that appear especially pertinent in the context of negotiating TNC agreements. Several of these, notably data and confidentiality, may also prove to be sticking points in TNC contract negotiations. While provisions such as confidentiality, insurance, and indemnification are common in contracts for services, details that may be of special significance in TNC agreements are highlighted in the discus- sion. Other commonly included provisions, such as requirements to comply with ADA and nondiscrimi- nation statutes, are not discussed, except to the extent a particular contract raised those issues in a non-standard way. In addition to the eight identified common issues, the further discussion references several issues that were not commonly included in the ten contracts that were reviewed, but that nonetheless may be worthy of consideration in drafting RSP contracts. The contracts with OTPs are discussed to the extent that they provide relevant points of contrast to the TNC contracts. 1. Employment Status of Drivers Five contracts contained provisions that specifi- cally addressed the employment status (or lack thereof) of the TNC drivers, for example, by stating that driver partner means an “independent contrac- tor providing on-demand transportation and logistics 751 Data requirements included: • Monthly report on: Total program trips; total of unique Qualified Riders; for each program trip invoiced: origination and destination, date and time, actual dis- tance travelled, travel times, and (to the extent that TNC has the capability to provide), wait times. [One contract] • Total number of completed trips and aggregate total of all promotion fees incurred. [One contract monthly; one contract at end of project] • Monthly report on total number of trips taken using promotion code. [One contract] • Weekly report on total qualifying trips taken; monthly report on number of pick-ups and drop-offs/station. [One contract] • Monthly report on: Passenger ID (anonymized); Trip length (5 mi ranges); Trip duration (5 minute ranges); Trip cost (actual); Trip subsidy (actual); Origin (zip code); Destination (zip code); Trip time period (AM peak/midday/ PM peak/late night); Day of travel; Overall mileage of ser- vice; Overall hours of service. [Two contracts] • Monthly report on: Individualized trip data (Number of trips taken, fares, zip codes taken from and to); overall program trip numbers; TNC products used by program participants; aggregated trip patterns for program par- ticipants (begin and end times of trips; Heatmap (not spe- cific addresses) of most requested areas, Heatmap of most popular drop-off areas); aggregated and anonymized reporting on customer feedback. [Two contracts] • Monthly report on: Total number of completed trips; average distance for such completed trips; and average ride time of day for such completed trips. [One contract]

106 included in all the contracts (in some cases specifi- cally referencing consumer privacy and data-protec- tion laws), one TNC contract made federal grant contract provisions applicable to the contract, and one required the TNC to ensure that its subcontrac- tors acknowledge their obligation to comply with federal, state, and local laws applicable to their performance under the contract. One of the OTP contracts specifically referenced compliance with FTA regulations, policies, procedures, and directives, including the FTA Master Agreement and the ADA. 7. Indemnification by TNC The most common formulations were to indem- nify the contracting agency against claims arising from the TNC’s breach of the agreement/applicable law, or against claims arising from the negligence or willful misconduct of the TNC, its employees, or agents in their performance of the agreement. An arguably broader indemnification required that the contractor indemnify against claims, etc., arising out of any act or action, or omission or failure to act when under a duty to act on the part of a contractor or any of its officers, agents, servants, employees, or subcontractors of any tier in its or their performance hereunder. Another agency required the TNC to indemnify against the negligence of the TNC and its employees or agents but did not include the TNC’s contractors, an apparent departure from the agen- cy’s standard indemnification. None of the TNC contracts mention TNC drivers, or for that matter TNC partners, in the indemnification provision. In contrast, one of the OTP contracts required the provider to indemnify against a wide range of claims, including intentional torts and negligent hiring arising out of the agreement resulting directly/indi- rectly from the performance of, or failure to perform, the work by the provider or by any entity to which the provider subcontracts any portion of the work. 8. Insurance It is assumed that variances in specific types of required coverage, coverage levels, and naming the contracting agency as an additional insured are based on the contracting agencies’ standard insur- ance requirements for third-party contracts. These provisions were not analyzed. However, require- ments for automobile insurance were reviewed. These included specifically requiring the TNC to maintain commercial automobile liability insurance on behalf of the partner drivers [two contracts]; requiring that a commercial business automobile policy be provided with coverage applicable to any and all leased, owned, hired, or non-owned vehicles used in pursuit of any of the activities associated with the contract [three contracts]; and merely the TNC and contracting agency are independent contractors as to each other. Two additional provi- sions could prove significant in the TNC context. The first specifies that the TNC is solely liable to third parties with whom it enters into contracts to effectu- ate the purposes of the agreement. The second is an agreement by the TNC to indemnify the contracting agency against claims that may be made against the agency based on contentions by any of the TNC’s employees or subcontractors, or by any third party, that an employer–employee relationship (or a substi- tute for such) exists for any purpose because of the contract or the nature and/or performance of any services under the contract. One of the OTP contracts specifies that the contractor is responsible for all subcontractors and outside consultants. 4. Confidentiality The following were acknowledged in agreements as being regarded by the TNC as confidential/trade secrets exempt from public disclosure: the trip data and other reporting provided by the TNC to the public agency [four agreements], the TNC’s proposal [one agreement], and the TNC’s insurance coverage [one agreement]. (Two of the non-service contracts stipulated that the terms of the agreement itself were confidential information.) Limitations on confi- dentiality included specifying that the invoices, usage data, and user data are not subject to the confidentiality provision; the applicability of statu- tory exemptions under the state public records are in the contracting agency’s sole discretion; and the terms of the agreement are not subject to the agree- ment’s confidentiality requirements. 5. References to Public Records Law Most of the TNC agreements acknowledge that the requirements of state public records law may require disclosure but also require notice to the TNC of any such requests. One agreement, in referencing the applicability of the state public records law, spec- ifies that the applicability of statutory exemptions to a particular record shall be made in the agency’s sole and absolute discretion. However, the agree- ment further provides that as to trade secrets, the exercise of the agency’s discretion to disclose infor- mation that the TNC has deemed a trade secret is conditioned on notice to the TNC to allow it to provide more information or file a cause of action to prevent disclosure. One of the agreements specified that if the TNC exercised its option to contest disclo- sure, then the TNC would bear the cost of defense. 6. Compliance with Laws In addition to the general warranty of compliance with all applicable federal, state, and local laws