HomeMy WebLinkAboutStaff Report 6916
City of Palo Alto (ID # 6916)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 6/20/2016
City of Palo Alto Page 1
Summary Title: Program Agreement with Motivate, LLC for Bay Area Bike
Share Operations
Title: Approval of Program Agreement With Motivate, LLC for the
Continuation of Bike Share Operations and Maintenance of Existing Bay Area
Bike Share (BABS) Equipment From June 30, 2016 to November 30, 2016
While a Replacement Bike Share System is Planned and Deployed
From: City Manager
Lead Department: Planning and Community Environment
Recommendation:
Staff recommends that the City Council approve and authorize the City Manager to sign a
Program Amendment with Motivate, LLC to allow for the continued operation of the City’s
existing bike share system until November 30, 2016.
Executive Summary:
The City’s bike share program is currently operated as a pilot program as part of the larger 700-
bicycle Bay Area Bike Share pilot program (BABS) that expires on July 1, 2016. Approval of the
attached Program Agreement [Attachment A] between Motivate, LLC and the City of Palo Alto
will enable the current bike share program to continue from the current expiration date of July
1, 2016 to November 30, 2016. Staff will return to City Council in August or September 2016 to
discuss a replacement system, including a timeline for the removal of the current bike share
system and implementation of a new system.
Background:
Staff provided City Council with an update on regional bike share at its April 25, 2016 meeting
and reported on the results of the BABS pilot program. The staff report included a bike share
strategic plan produced by Toole Design Group, which summarized the BABS pilot performance
on the Peninsula and outlined the cost to expand the current system versus replacing it with
Social Bicycles (SoBi) smart bike equipment, concluding that a smart bike system is more cost
effective for Peninsula cities.
The BABS pilot program concludes on July 1, 2016 and the BABS vendor, Motivate, LLC, entered
City of Palo Alto Page 2
into an agreement with the MTC (Attachment B) to expand the system within San Francisco,
Oakland, Berkeley, and San Jose with no public funding. These cities were selected for
expansion based on positive correlations between bike share trips and population density,
diversity of land uses, and concentration of bike share stations. Over the next two years, the
BABS system will expand from 700 bikes to 7,000 bicycles, making it one of the largest and
densest bike sharing systems in North America.
The City of San Mateo launched a 50-bike SoBi pilot bike sharing system in early May 2016 and
staff will be tracking performance of this system in the coming months. The City of Mountain
View and City of Redwood City have expressed an interest in the smart bike model and have
indicated a willingness to collaborate in an effort to have an interoperable smart bike system
for the peninsula. Staff will return to City Council in August or September 2016 with more
details about a SoBi bike share system for Palo Alto.
Discussion
The Program Agreement between the City of Palo Alto and Motivate, LLC includes language
requiring Motivate, LLC to continue to operate the existing bike share stations according to the
terms and conditions of the Continuation Agreement. The term of the Program Agreement is
from July 1, 2016 to November 30, 2016. The agreement references a monthly operating fee of
$100 per bike share dock and also specifies payment instructions. The Program Agreement also
references details on bike share operations such as the rebalancing of bicycles, fee structure,
responsibility for system planning, etc. The terms are substantially the same as those in which
the City initially participated in with the BABS pilot program.
Resource Impact
In accordance with the MTC agreement with Motivate, LLC, the City will pay the operator the
cost to operate and maintain existing BABS equipment. The operating fee is $100 per dock per
month for a total cost of $37,500 as outlined in Appendix B of the MTC agreement [Attachment
B]. There are 75 docks within the City of Palo Alto. In addition, the Program Agreement
potentially requires the City to pay an additional monthly fee of $12.50 per dock, for a total
monthly cost of $937.50 to upgrade existing equipment ($4,687.50 for the five-month term of
the contract). Motivate, LLC, has stated that they are uncertain when this equipment upgrade
will occur. If it takes place after the Program Agreement expires, then no upgrade fees would
be incurred by the City of Palo Alto.
The contract also allows for two discretionary moves of bike share station equipment. Any
additional station relocations beyond the two permitted in the contract would result in
additional fees. Staff does not anticipate any changes to bike share station locations prior to
deploying a new system, however unforeseen relocations could occur due to roadway projects
or private development projects, etc.
City of Palo Alto Page 3
Adequate funding for this Program Agreement and any additional upgrade fees is available in
Capital Improvement Program Project PL-04010 Bicycle and Pedestrian Transportation Plan
Implementation.
Timeline
Approval of the attached Program Agreement [Attachment A] will extend the current expiration
date of the City’s five pilot bike share program stations from July 1, 2016 to November 30,
2016. Staff will return to Council in August or September 2016 with more information about a
replacement smart bike bike share system.
Environmental Review
This Program Agreement is exempt from review under the California Environmental Quality Act,
pursuant to CEQA Guidelines Section 15301, Class 1 — Existing Facilities, the continuation of an
existing use that involves "negligible or no expansion of an existing use...[related to] existing
bicycle and pedestrian trails, and similar facilities."
Attachments:
Attachment B - MTC-Motivate LLC Continuation Agreement (PDF)
Attachment A - Palo Alto/Motivate, LLC Program Agreement (PDF)
203193300.19
BAY AREA BIKE SHARE PROGRAM AGREEMENT
between
METROPOLITAN TRANSPORTATION COMMISSION
and
BAY AREA MOTIVATE, LLC
December 31, 2015
203193300.19 -ii-
Table of Contents
DEFINED TERMS ................................................................................................... 2
SCOPE OF SERVICES .......................................................................................... 13
PROGRAM AREA AND EXPANSION; PROGRAM SIZE;
PROGRAM TIMING .................................................................................... 18
SITING .................................................................................................................... 21
RESERVED ............................................................................................................ 22
IMPROVEMENTS, MAINTENANCE, REPAIR AND OPERATION ................ 22
ADVERTISING AND SPONSORSHIP ................................................................. 23
REVENUE SHARING ........................................................................................... 24
PRICE SCHEDULES. ............................................................................................ 26
MERCHANDISING, LICENSING AND INTELLECTUAL PROPERTY ........ 29
RESERVED .......................................................................................................... 30
RESERVED .......................................................................................................... 30
MARKETING ....................................................................................................... 30
WEBSITE ............................................................................................................. 31
SECURITY FUND ............................................................................................... 32
INDEMNITY ........................................................................................................ 34
INSURANCE ........................................................................................................ 34
TERMINATION AND DEFAULT ...................................................................... 37
RIGHTS OF RECOGNIZED LENDER ............................................................... 41
EMPLOYMENT ................................................................................................... 43
INSPECTION AND AUDIT RIGHTS ................................................................. 44
RESTRICTION AGAINST ASSIGNMENT ....................................................... 44
DISPUTE RESOLUTION PROCESS .................................................................. 45
REPRESENTATIONS AND WARRANTIES OF OPERATOR ......................... 46
MISCELLANEOUS ............................................................................................. 47
203193300.19 iii
APPENDICES
APPENDIX A KEY PERFORMANCE INDICATORS AND LIQUIDATED DAMAGES
APPENDIX B COST OF EQUIPMENT
APPENDIX C REPORTING REQUIREMENTS
APPENDIX D FUNCTIONAL SPECIFICATIONS
ATTACHMENT
ATTACHMENT A AGREEMENT TO CONTINUE PILOT BIKE SHARE PROGRAM
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BAY AREA BIKE SHARE PROGRAM AGREEMENT
THIS BAY AREA BIKE SHARE PROGRAM AGREEMENT (this “Agreement”), has been executed
and delivered as of December 31, 2015 (the “Effective Date”) by and between the METROPOLITAN
TRANSPORTATION COMMISSION, an agency of the State of California established pursuant California Government Code § 66500 et seq., having an office at 101 Eighth Street, Oakland, California
(“MTC”), and BAY AREA MOTIVATE, LLC, a Delaware limited liability company, having any office
at 5202 Third Avenue, Brooklyn, New York 11220 (“Operator”).
W I T N E S S E T H:
WHEREAS, self-service bicycle sharing programs are revolutionizing the way residents commute and tourists travel within cities in Europe and North America, and a regional self-service bicycle sharing program with public access has been determined by MTC and the Participating Cities (as defined below)
to be a desirable and valuable mode of alternative public transportation for the San Francisco Bay Area;
and
WHEREAS, a bike sharing program will provide a 24-hour transportation network that complements existing transit and transportation options, increases multi-modal travel options in the region and encourages bicycle use as a healthy, environmentally friendly and congestion-reducing transportation
option; and
WHEREAS, MTC authorized its Executive Director to negotiate an agreement with Operator to design,
build, operate, maintain and market a network of publicly available bicycles in a bike share system within the cities of Berkeley, Emeryville, Oakland, San Francisco and San Jose (subject to Section 2.16, each a “Participating City”, and collectively, the “Participating Cities”);
WHEREAS, accordingly, MTC and Operator have negotiated this Agreement for the design, build,
operation, maintenance and marketing of a network of publicly available bicycles in a bike share program
in the Participating Cities;
WHEREAS, this Agreement also addresses the continuation of the pilot bike share program established in 2013 in San Francisco, Redwood City, Palo Alto, Mountain View and San Jose (the “Pilot Program”; the
foregoing cities being the “Pilot Cities”) pursuant to Bike Share Program Agreement dated February 6,
2013 (as amended, the “AD Agreement”) between Alta Bicycle Share, Inc. and The Bay Area Air Quality
Management District (the “Air District”);
WHEREAS, concurrently with the execution and delivery of this Agreement, Operator, the cities of Emeryville, San Francisco and San Jose, and MTC are executing a Coordination Agreement
(“Coordination Agreement”) that sets forth certain rights, liabilities, and responsibilities of each party
thereto with respect to the Program, and defines the organizational, management, and operational
structure for the successful development of the Program.
NOW, THEREFORE, in consideration of the foregoing clauses, which clauses are hereby made a part of this Agreement, and the mutual covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby
covenant and agree as follows:
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DEFINED TERMS
For purposes of this Agreement and the Appendices and Exhibits, the following terms, phrases, words, and their derivatives shall have the meanings set forth in this Section.
1.1 “AAA” has the meaning given such term in Section 23.1.2.
1.2 “AD Agreement” has the meaning given such term in the Recitals.
1.3 “AD Equipment” shall mean bike share equipment paid for by the Air District or Pilot
Cities under the AD Agreement.
1.4 “Adjustment” shall mean permanent or temporary changes to a Station’s size or configuration, and changes to Street Treatments and Street Markings as necessitated by such, without
changes to the Station location.
1.5 “Advertising” shall mean any printed matter, including, but not limited to, words, pictures,
photographs, symbols, graphics or visual images of any kind, or any combination thereof, promoting or soliciting the sale or the use of a product or service or providing other forms of textual or visual messages or information for the sale or the use of a product or service, but in no event shall it include any textual
information that is required to be posted on any Equipment by any federal, state or local law, rule or
regulation, or by this Agreement.
1.6 “Advertising Restrictions” has the meaning given such term in Section 7.2.
1.7 “Agents” has the meaning given such term in Section 17.1.
1.8 “Agreed Completion Dates” shall mean, collectively, the Agreed Phase I Completion Date,
the Agreed Phase II Completion Date, the Agreed Phase III Completion Date, the Agreed Phase IV
Completion Date and the Agreed Phase V Completion Date.
1.9 “Agreed Phase I Completion Date” has the meaning given such term in Section 3.4.1.
1.10 “Agreed Phase II Completion Date” has the meaning given such term in Section 3.4.2.
1.11 “Agreed Phase III Completion Date” has the meaning given such term in Section 3.4.3.
1.12 “Agreed Phase IV Completion Date” has the meaning given such term in Section 3.4.4.
1.13 “Agreed Phase V Completion Date” has the meaning given such term in Section 3.4.5.
1.14 “Agreed Phase I Site Permit Submission Date” has the meaning given such term in Section 3.4.1.
1.15 “Agreed Phase II Site Permit Submission Date” has the meaning given such term in
Section 3.4.2.
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1.16 “Agreed Phase III Site Permit Submission Date” has the meaning given such term in
Section 3.4.3.
1.17 “Agreed Phase IV Site Permit Submission Date” has the meaning given such term in
Section 3.4.4.
1.18 “Agreed Phase V Site Permit Submission Date” has the meaning given such term in
Section 3.4.5.
1.19 “Agreed Site Permit Submission Dates” shall mean, collectively, the Agreed Phase I Site
Permit Submission Date, the Agreed Phase II Site Permit Submission Date, the Agreed Phase III Site
Permit Submission Date, the Agreed Phase IV Site Permit Submission Date and the Agreed Phase V Site Permit Submission Date.
1.20 “Agreement” has the meaning given such term in the Preamble, together with all
Appendices and Exhibits, and all amendments or modifications hereof or thereof.
1.21 “Air District” has the meaning given such term in the Recitals.
1.22 “Alcohol Advertising” shall mean Advertising or Sponsorship, the purpose or effect of which is (i) to identify a brand of an alcohol product, a trademark of an alcohol product or a trade name
associated exclusively with an alcohol product, or (ii) to promote the use or sale of an alcohol product.
1.23 “Annual Member” shall mean a user having an Annual Membership.
1.24 “Annual Membership” has the meaning given such term in Section 9.2.1.
1.25 “Annual Membership Fee” has the meaning given such term in Section 9.2.1.
1.26 “Annual Membership Fee Cap” has the meaning given such term in Section 9.2.1.
1.27 “Applicable Interest Rate” in effect at any date shall mean the prime rate as most recently
published in the Eastern edition of the Wall Street Journal on or prior to such date plus 3%.
1.28 “Assessment Period” has the meaning given such term in Section 2.6.2(b).
1.29 “Back-end Software” designates all Software components of the central application provided by Operator’s Software vendor and stored on the servers of such vendor, used for operation of
such vendor’s equipment, and accessible online from a remote location using the Hosted Infrastructure.
1.30 “Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended (Title 11
(U.S.C.).
1.31 “Berkeley Effective Date” has the meaning given such term in Section 2.16.
1.32 “Bicycle” shall mean a vehicle with pedals and with 2 wheels held in a frame and aligned one behind the other and steered with a steering wheel as further described in Appendix D. “Bicycle”
shall not include motorized vehicles, including scooters or mopeds. For the avoidance of doubt, electric
assisted bicycles constitute Bicycles and do not constitute motorized vehicles.
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1.33 “Bicycle Availability” shall mean conformance with the required Bicycle Fleet Level.
1.34 “Bicycle Fleet Level” shall mean the number of Bicycles that are operational, on-the-street
and available for public use.
1.35 “Bicycle Maintenance” shall mean, at a minimum, that the following checks are performed on a Bicycle, with deficient elements repaired or replaced as necessary:
1.35.1 Check tire pressure, and add air as may be needed, to recommended Pounds per
Square Inch measurement;
1.35.2 Check tightness of handlebars, headset bearings, and full handlebar range of
motion (left to right);
1.35.3 Check tightness of seat, seat post quick-release, and see that seat post moves
freely in full range of motion (up and down);
1.35.4 Check brake function (front and rear);
1.35.5 Check grips for wear and brake levers for tightness and damage;
1.35.6 Check bell for tightness and correct function;
1.35.7 Check handlebar covers for damage and instruction stickers;
1.35.8 Check front basket for tightness and damage, and check bungee cord for wear;
1.35.9 Check for correct gears and shifter function through all 5 gears;
1.35.10 Check fenders (front and rear) for damage, and clean outside of fenders;
1.35.11 Check tires (front and rear) for damage or wear;
1.35.12 Check wheels (front and rear) for trueness, broken or bent spokes and hub or axle tightness;
1.35.13 Check LED lights (front and rear) for function;
1.35.14 Check reflectors on wheels, seat and basket, to ensure they are present, clean, and
undamaged;
1.35.15 Check pedals and cranks for tightness;
1.35.16 Lubricate and clean chain and check chain tensioner for correct function;
1.35.17 Check kickstand for correct function; and
1.35.18 Take brief test ride to ensure overall correct function of Bicycle.
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1.36 “Bikeshare Holdings” shall mean Bikeshare Holdings LLC, a Delaware limited liability
company, the sole member of Operator, and its successors.
1.37 “Claims” has the meaning given such term in Section 16.1.
1.38 “Cluster” shall mean, with respect to any Station, the Stations located within one-third of a mile from such Station, unless fewer than 3 other Stations are located within one-third of a mile from such
Station, in which case such Station’s Cluster shall mean the 3 other Stations located closest to such
Station.
1.39 “Cluster Outage” shall mean an instance when either:
1.39.1 There are no empty, Operable Docks available at any of the Stations in a Cluster;
1.39.2 There are no Bicycles available for use at any of the Stations in a Cluster.
(Bicycles Wrenched in Docks are not considered as available for use.)
1.40 “Computer Hardware” electronic component that provides information or controls a
mechanical device and that is controlled by local or remote software.
1.41 “Contract Year” has the meaning given such term in Section 8.1.1.
1.42 “Coordination Agreement” has the meaning given such term in the Recitals.
1.43 “CPI” shall mean the Consumer Price Index for the Consolidated Metropolitan Statistical
Area covering San Francisco-Oakland-San Jose, as measured by the Consumer Price Index for All Urban
Consumers, as published from time to time by the Bureau of Labor Statistics, U.S. Department of Labor.
1.44 “CPI Adjustment” shall mean, with respect to a specific cost, that such cost is subject to annual adjustment each January 1 based on changes in the CPI from the Effective Date to the date of
adjustment.
1.45 “Deactivation” shall mean, at a minimum, shut-down of Kiosk (or display of messaging on
Kiosk screen indicating that Station is out of service) removal of all Bicycles present, installation of
physical barriers on all Docks that prevent docking of Bicycles, and designation of the Station as “Out of Service” on the Program website, app, and all other real-time data sources. A Deactivation event is not
over until the Station has been reactivated.
1.46 “Default” has the meaning given such term in Section 18.1.
1.47 “De-Installation” shall mean, at a minimum, (i) the temporary or permanent full removal of
the Station and its associated Street Treatments, and, (ii) the designation of the Station as “Out of Service” on, or removal of the Station from, the Program website, app, and all other real-time data sources.
1.48 “Designated Representative” has the meaning given such term in Section 25.1.
1.49 “Discovery” shall mean any Operator employee gaining actual knowledge by personal
observation of such employee or by Notification of any defect in the Equipment or Program.
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1.50 “Dispute Resolution Process” has the meaning given such term in Section 23.1.
1.51 “Docks” shall mean the locking mechanisms contained on a Station that are designed to
receive a Bicycle for locked storage.
1.52 “Electing City” shall mean a Peninsula Pilot City or other Eligible City that elects, in accordance with Section 3.2, to participate in the Program.
1.53 “Effective Date” has the meaning given such term in the Preamble.
1.54 “Eligible City” shall mean any city located in the MTC Area.
1.55 “Equipment” shall include Stations, Kiosks, Docks and Bicycles, either individually or in
any combination thereof.
1.56 “Escrow Agreement” means an escrow agreement to be executed among the vendor of the
Software, Operator, and a nationally reputable company that provides escrow deposit services with
respect to software and technology, as escrow agent, for the deposit, storage and release of the
proprietary source code of Vendor for all of Vendor’s software made available to Operator to operate the
Equipment, which agreement shall be in form acceptable to the parties thereto and in form reasonably acceptable to MTC.
1.57 “Event of Force Majeure” shall mean a delay, suspension or interruption due to strike; war
or act of war (whether an actual declaration of war is made or not); terrorism; insurrection; riot;
injunction; fire, flood or similar act of providence; or other similar causes or events to the extent that such
causes or events are beyond the control of the Party claiming an Event of Force Majeure, provided in each case that such Party has taken and continues to take all reasonable actions to avoid or mitigate such delay,
suspension or interruption and provided that such Party notifies the other Party to this Agreement in
writing of the occurrence of such delay, suspension or interruption within 5 business days, or if not
reasonably practicable, as soon thereafter as reasonably practicable, of the date upon which the Party
claiming an Event of Force Majeure learns or should have learned of its occurrence. A delay in a decision by a government entity, the approval of which is a condition to an occurrence, shall not constitute an
“Event of Force Majeure” unless such delay is beyond the normal period in which such entity generally
acts with respect to the type of decision being sought and only if the Party claiming Event of Force
Majeure has taken and continues to take all reasonable steps to pursue such decision. The financial
incapacity of Operator shall not constitute an Event of Force Majeure.
1.58 “Executive Director” shall mean the Executive Director of MTC, or any successor in
function to the Executive Director.
1.59 “Firearms Advertising” shall mean Advertising or Sponsorship, the purpose or effect of
which is (i) to identify a brand of firearms or ammunition, a trademark of a firearm or ammunition or a
manufacturer of firearms or ammunition, or a trade name associated exclusively with a firearms or ammunition, or (ii) to promote the use or sale of firearms or ammunition.
1.60 “Functional Specifications” shall mean the specifications set forth in Appendix D, subject
to Section 6.7.
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1.61 “Hacking” shall mean unauthorized and intentional access to the Computer Hardware for
the Program and/or Software.
1.62 “Hosted Infrastructure” means the hosting of the Back-end Software and associated
network access designed and controlled by Operator’s Software vendor, which renders the Back-end Software accessible to Operator and its end users;
1.63 “Indemnified Party” and “Indemnified Parties” have the meaning given such terms in
Section 16.1.
1.64 “Infill” shall mean the placement of additional Stations within the Program Area in order
to address unmet demand or community request.
1.65 “Initial Meeting Date” has the meaning given such term in Section 23.1.1.
1.66 “Initial Ride Period” has the meaning given such term in Section 9.2.3.
1.67 “Initial Term” has the meaning given such term in Section 2.2.
1.68 “Installation Scheduling Permits” shall mean permits required for the scheduling of the
installation of Station-related Equipment at Sites proposed for Stations for which a Site Permit has been issued as a check for conflicts with other activities at the same location. The “temporary occupancy
permit” issued by the San Francisco Department of Public Works is an example of an Installation
Scheduling Permit.
1.69 “Institutional Lender” shall mean any savings bank, a savings and loan association, a
commercial bank or trust company (whether acting individually or in a fiduciary capacity), an insurance company organized and existing under the laws of the United States or any state thereof, a religious,
educational or eleemosynary institution, a federal, state or municipal employee’s welfare, benefit, pension
or retirement fund, any governmental agency or entity insured by a governmental agency, a credit union,
trust or endowment fund, or any combination or syndicate of Institutional Lenders or other lenders that is
led by an agent that qualifies as an Institutional Lender (in which case such combination or syndicate shall, for purposes of this Agreement, constitute a single Institutional Lender); provided, that each of the
above entities (or, in the case of any such combination or syndicate, the agent) shall qualify as an
Institutional Lender only if it (a) is subject to service of process within the State of California and (b) has
a net worth of not less than $50,000,000 and net assets of not less than $250,000,000. A wholly-owned
subsidiary of any of Person that qualifies as an Institutional Lender is also an Institutional Lender.
1.70 “Key Performance Indicators” (or “KPIs”) has the meaning given such term in Appendix
A.
1.71 “Kiosk” shall mean the payment terminal that provides Bicycle rental instructions,
contains payment equipment (e.g., a credit card device), and includes all other physical means necessary
for the rental of Bicycles.
1.72 “KPI Contest Notice” has the meaning given such term in Section 2.6.3(b).
1.73 “KPI Change Request” has the meaning given such term in 2.6.2(a).
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1.74 “KPI Failure Notice” has the meaning given such term in 2.6.3 (a).
1.75 “KPI LD Payment Date” has the meaning given such term in Section 2.6.3(b).
1.76 “Liabilities” has the meaning given such term in Section 16.1.
1.77 “Membership Fee” has the meaning given such term in Section 9.1.
1.78 “MTC” has the meaning given such term in the Preamble, together with any successor
thereto.
1.79 “MTC Area” means the 9 counties in the San Francisco Bay Area within MTC’s
jurisdiction.
1.80 “MTC/Participating City Property” shall mean the trademarks, logos, servicemarks, and other intellectual property rights of MTC and/or the Participating Cities.
1.81 “Notification” shall mean all information provided by MTC, a Participating City or the
general public to Operator about a specific defect or problem concerning the Program, Equipment or
operations of the Program by written document, email to Operator’s public information email address for
the Program, or telephone call to Operator’s call-in center for the Program.
1.82 “Oakland Effective Date” has the meaning given such term in Section 2.16.
1.83 “Operable Dock” shall mean a Dock that can both rent and receive bicycles from all
Program users and is not physically obstructed in a manner that would prevent such use.
1.84 “Operable Station” shall mean a Station at which at least 90 percent of all installed Docks
are Operable Docks from which an Annual Member can check out and return a Bicycle.
1.85 “Operator” has the meaning given such term in the Preamble.
1.86 “Operator Property” has the meaning given such term in Section 10.3.
1.87 “Operator Basic Function Software” shall mean software and other intellectual property
developed by Operator that is integral to the basic function of the Program (such as mobile apps that allow
for the unlocking of Bicycles). As of the Effective Date, no Operator Basic Function Software has been developed.
1.88 “Operator Non-Basic Function Software” shall mean software and other intellectual
property developed by Operator that enhances the functionality of the Program but is not necessary for the
basic function of the Program (such as the Program website or mobile apps that allow users to identify
nearby Stations with available Bicycles or available Docks).
1.89 “Participating City” and “Participating Cities” have the meaning given such terms in the Preamble.
1.90 “Participating City Delay” has the meaning given such term in Section 4.2.
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1.91 “Parties” shall mean MTC and Operator, and “Party” shall mean one of them, as the
context requires. The term “parties” shall mean, collectively, Operator, MTC and the Participating Cities.
1.92 “Payment Breach” has the meaning given such term in Section 15.3.1.
1.93 “Peak Hours” has the meaning given such term in Section 2.6.2(b).
1.94 “Peninsula Pilot Cites” shall mean the cities of Mountain View, Palo Alto and Redwood
City.
1.95 “PII” has the meaning given such term in Section 2.15.
1.96 “Person” shall mean any human being or any association, firm, partnership, joint venture,
corporation, limited liability company, governmental entity or other legally recognized entity, whether for profit or not for profit.
1.97 “Pilot Cities” has the meaning given such term in the Recitals.
1.98 “Phase” shall mean any one of Phase I, Phase II, Phase III, Phase IV and Phase V, as the
context requires, and Phases shall mean, collectively, Phase I, Phase II, Phase III, Phase IV and Phase V.
1.99 “Phase I” has the meaning given such term in Section 3.4.1.
1.100 “Phase II” has the meaning given such term in Section 3.4.2.
1.101 “Phase III” has the meaning given such term in Section 3.4.3.
1.102 “Phase IV” has the meaning given such term in Section 3.4.4.
1.103 “Phase V” has the meaning given such term in Section 3.4.5.
1.104 “Phase I Stations” has the meaning given such term in Section 3.4.1.
1.105 “Phase II Stations” has the meaning given such term in Section 3.4.2.
1.106 “Phase III Stations” has the meaning given such term in Section 3.4.3.
1.107 “Phase IV Stations” has the meaning given such term in Section 3.4.4.
1.108 “Phase V Stations” has the meaning given such term in Section 3.4.5.
1.109 “PPI” shall mean the Producer Price Index for the United States, as measured by the Producer Price Index for final demand, as published from time to time by the Bureau of Labor Statistics, U.S. Department of Labor.
1.110 “PPI Adjustment” shall mean, with respect to a specific cost, that such cost is subject to
annual adjustment each January 1 based on changes in the PPI from the Effective Date to the date of
adjustment.
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1.111 “Program” shall mean Equipment, Sites, website, Backend Software and Computer
Hardware and the Services.
1.112 “Program Area” shall mean the entire area of all Participating Cities.
1.113 “Program Fleet” shall mean the total number of Bicycles required to serve the Program Area as specified in Section 3.
1.114 “Program Name” has the meaning given such term in Section 10.2.
1.115 “Program Property” shall mean (a) the Equipment, and (b) all relevant licenses and rights
to the Equipment and the Software (excluding Operator Non-Basic Function Software).
1.116 “Program Property Assignment Conditions” shall mean the following: (a) Operator and the purchaser of the Program Property have agreed on the purchase price for the Program Property, which
shall be based on the fair market value of the Program Property as an installed system at the time of the
purchase, (b) such purchaser has paid Operator the agreed upon purchase price for the Program Property,
and (c) such purchaser and Operator have entered into a license agreement with respect to the Operator
Basic Function Software, which license agreement shall (i) strictly prohibit use of the Operator Basic Function Software for any other purpose other than the operation of the Program during such purchaser’s
tenure as operator of the Program, (ii) strictly prohibit the sale, lease, license, sublicense or other transfer
of such software, (iii) strictly prohibit any attempt to derive the source code of such software, (iv) strictly
prohibit the development of any derivative software based on such software, and (v) contain such other
customary terms and provisions intended to govern the licensing and use of proprietary software by a competitor of the licensor to prevent, or limit the risk of, unauthorized use or infringement of such
software by such licensee or any third party, and such other customary terms and provisions intended to
protect the licensor from the licensee or any third party obtaining proprietary information for use by such
licensee or any third party other than the use specifically authorized in such license agreement.
1.117 “Prohibited Advertising” shall mean outdoor advertising that is prohibited by local laws, regulations or ordinances of the Participating City.
1.118 “Property Damage Breach” has the meaning given such term in Section 15.3.2.
1.119 “Rebalancing” shall mean actions taken by Operator to prevent or rectify Cluster Outages,
subject, however, to Section 2.6.2(b).
1.120 “Recognized Lender” shall mean the holder of a Recognized Loan.
1.121 “Recognized Loan” shall mean any loan that is held by an Institutional Lender.
1.122 “Regular Annual Member” has the meaning given such term in Section 9.2.1.
1.123 “Regular Annual Membership” has the meaning given such term in Section 9.2.1.
1.124 “Renewal Term” has the meaning given such term in Section 2.4.
1.125 “Renewal Condition” has the meaning given such term in Section 2.4.
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1.126 “Replacement Agreement” has the meaning given such term in Section 19.4.
1.127 “Revenue Sharing Credit Period” has the meaning given such term in Section 8.2.4.
1.128 “Ridership Revenue” has the meaning given such term in Section 8.1.2.
1.129 “Ridership Revenue Hurdle” has the meaning given such term in Section 8.1.3.
1.130 “Scheduled Phase I Completion Date” has the meaning given such term in Section 3.4.1.
1.131 “Scheduled Phase II Completion Date” has the meaning given such term in Section 3.4.2.
1.132 “Scheduled Phase III Completion Date” has the meaning given such term in Section 3.4.3.
1.133 “Scheduled Phase IV Completion Date” has the meaning given such term in Section 3.4.4.
1.134 “Scheduled Phase V Completion Date” has the meaning given such term in Section 3.4.5.
1.135 “Scheduled Phase V Plus 90 Days Date” has the meaning given such term in Section 8.2.4.
1.136 “Scheduled Phase Completion Date” shall mean any of the Scheduled Phase I Completion
Date, the Scheduled Phase II Completion Date, the Scheduled Phase III Completion Date, the Scheduled
Phase IV Completion Date or the Scheduled Phase V Completion Date, as the context requires.
1.137 “Security Fund” has the meaning given such term in Section 15.1.
1.138 “Self-Help Situation” has the meaning given such term in Section 15.3.3.
1.139 “Services” shall mean the installation, operation and maintenance of the Stations and the
acquisition, placement, maintenance and rental to users of the Bicycles.
1.140 “Site” shall mean a designated area on publicly or privately owned real property, which
area contains a Station that conforms to the Siting Criteria.
1.141 “Site Permits” shall mean permits for installation of Station-related Equipment at Sites proposed for Stations (other than Installation Scheduling Permits or Special Traffic Permits).
1.142 “Siting Criteria” has the meaning given such term in the Coordination Agreement.
1.143 “Software” shall means the software and the Equipment it runs on required to operate the
Equipment.
1.144 “Special Traffic Permit” shall mean a permit required if installation of Station-related Equipment will interfere with pedestrian, bicycle, transit or vehicular traffic in a material respect. The
Special Traffic Permit issued by the San Francisco Municipal Transportation Authority (SFMTA) in
accordance with SFMTA’s Regulations for Working in San Francisco Streets is an example of a Special
Traffic Permit.
1.145 “Sponsor” means a Person contributing payments for the Program in exchange for acknowledgment of its contribution.
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1.146 “Sponsor Property” has the meaning given such term in Section 10.2.
1.147 “Sponsorship” shall mean an arrangement pursuant to which, in connection with a payment
or payments that will be used to help defray the costs of installing or operating the Program, the Person
contributing such payment or payments is acknowledged by the Parties for such contribution.
1.148 “Sponsorship Revenue” has the meaning given such term in Section 8.1.4.
1.149 “Sponsorship Revenue Hurdle” has the meaning given such term in Section 8.1.5.
1.150 “State” shall mean the State of California.
1.151 “Station” shall mean a Kiosk (subject to Section 6.5), map module, a variable number of
Docks and, when applicable, Street Treatment(s) and Street Markings, designed in accordance with the Functional Specifications set forth in Appendix D.
1.152 “Station Cleaning” shall mean, at a minimum that the following tasks are performed by
Operator at a Station:
1.152.1 Removal of litter at the Station; and
1.152.2 As needed power washing of the Docks and Street Treatments comprising a Station and the pavement area on which a Station is situated.
1.153 “Street Marking(s)” shall mean thermoplastic paint markings and/or striping on the
pavement for the express purpose of demarcating a Station.
1.154 “Street Treatments” shall mean the three-dimensional objects used to demarcate the
Station, and protect it from adjacent parking and moving traffic. Such objects may include, but are not limited to, delineators and wheel stops.
1.155 “Street Treatment Requirements” shall mean a Participating City’s requirements with
respect to Street Treatments as set forth in the Siting Criteria for such Participating City.
1.156 “Term” has the meaning given such term in Section 2.2.
1.157 “Title Sponsor” shall mean Operator’s system-wide Sponsor for the entire Program.
1.158 “Tobacco Advertising” shall mean Advertising or Sponsorship that bears a health warning required by federal statute, the purpose or effect of which is to identify a brand of a tobacco product (any
substance that contains tobacco, including, but not limited to, cigarettes, cigars, pipe tobacco and chewing
tobacco), a trademark of a tobacco product or a trade name associated exclusively with a tobacco product,
or to promote the use or sale of a tobacco product.
1.159 “Trips” shall mean the use of a Bicycle from one Station to another Station or back to the initial Station.
1.160 “Vendor” shall mean the company selected by Operator to provide the Software (other
than the Operator Software).
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1.161 “Wayfinding Elements” shall mean the maps posted on every Station, showing the location
of each Station.
1.162 “Wrench” shall mean the action of locking a Bicycle in a Dock such that it cannot be
released by Program users pending action by Operator.
SCOPE OF SERVICES
2.1 General Requirements. Operator shall (a) provide the Services in conformance with the
terms of this Agreement, (b) provide all of the Equipment and Software required to operate the Program, (c) procure all of the relevant licenses and rights to use the Equipment and Software to operate the Program, (d) procure all licenses and permits from applicable governmental agencies that are required to
provide the Services from all applicable governmental agencies, and (e) comply with all applicable laws,
rules and regulations of the United States, the State and the Participating Cities.
2.2 Initial Term. The term (the “Term”) of this Agreement shall commence on the Effective Date and shall end on the last day of the calendar month in which the 10th anniversary of the earlier of (a)
the date that Phase I is completed, and (b) the Agreed Phase I Completion Date occurs (the “Initial
Term”), subject to Section 2.3.
2.3 Reduction of Initial Term. If Operator does not complete 75% of Phase I, Phase II, Phase
III, or Phase IV by the Agreed Phase I Completion Date, the Agreed Phase II Completion Date, the Agreed Phase III Completion Date, the Agreed Phase IV Completion Date, respectively, or 100% of
Phase V by the Agreed Phase V Completion Date, then MTC shall have the right, by notice to Operator
given with 60 days of the respective missed Completion Date, to reduce the Initial Term by 5 years,
subject to the rights of the Recognized Lender set forth in Section 19.5. In addition, if on the 4th
anniversary of the earlier of (a) the date that Phase I is completed, and (b) the Agreed Phase I Completion Date, a Default exists under Section 18.1.5, then MTC shall have the right, by notice to Operator given
with 60 days of such 4th anniversary, to reduce the Initial Term by 5 years, subject to the rights of the
Recognized Lender set forth in Section 19.5. Any amounts due pursuant to Section 8.2 shall be due
within 120 days after expiration of the Term as reduced pursuant to this Section 2.3.
2.4 Renewal Term. If the Initial Term has not been reduced pursuant to Section 2.3 and Operator is in substantial compliance with the terms of this Agreement one year prior to the expiration of
the then current Term (the “Renewal Condition”), then, upon mutual agreement of the Parties, the Term
may be extended for 2 5-year renewals terms (each a “Renewal Term”) on substantially equivalent terms
applicable to the Initial Term. Subject to Operator’s satisfaction of the Renewal Condition and the mutual
agreement of the Parties to extend the Term, MTC and Operator shall engage in good faith negotiations on a mutually acceptable agreement for each Renewal Term commencing one year prior to the expiration
of the then current Term with the goal of the Parties entering into an agreement for the respective
Renewal Terms prior to the commencement of each Renewal Term. Until such agreement is entered into
for the initial Renewal Term, this Agreement shall govern the relationship between the Parties, and until
such agreement is entered into for the second Renewal Term, the agreement for the initial Renewal Term shall govern the relationship between the Parties.
203193300.19 -14-
2.5 Non-Renewal. Notwithstanding anything to the contrary contained in Section 2.4,
Operator has the right not to renew the Term for either Renewal Term by notice given to MTC not later
than 6 months prior to the expiration of the then current Term. If Operator gives MTC a non-renewal
notice in accordance with the preceding sentence, then this Agreement shall end upon the expiration of the then current Term.
2.6 Services.
2.6.1 Subject to Events of Force Majeure, following completion of Phase I, Operator shall
operate the Program so that it is fully operational at all Stations, consistent with the
Key Performance Indicators as set forth in Appendix A, 24 hours per day, seven days per week, every day of each year, during the Term.
2.6.2 Adjustments to KPIs.
(a) KPIs in General. Notwithstanding anything to the contrary, if at any time
and from time to time either Party in good faith believes that the KPIs should be updated, including by
amending, supplementing or replacing them, (a) on account of technological developments incorporated into the Program by Operator, or (b) because the Party seeking changes believes the KPIs are ineffective,
or not as effective as the KPIs could be, in strengthening the Program, the customer experience, and
Operator’s performance, then the Party seeking changes to the KPIs shall submit proposed changes to the
KPIs together with an explanation of how the proposed changes would address the deficiencies in the then
existing KPIs (“KPI Change Request”). Within 10 business days thereafter, the other Party shall either accept the KPI Change Request in writing, or reject the KPI Change Request along with the reasons for
the rejection. In the case of such rejection, at the request of the Party submitting the KPI Change Request,
the matter will be referred to discussion in accordance with Section 23.1.1, except the matter will not be
subject to mediation in accordance with Section 23.1.2. If the matter is not resolved within 30 business
days of the KPI Change Request, the KPIs shall not be changed pursuant to the KPI Change Request. In lieu of rejecting or accepting a proposed KPI change, the Parties may agree to test trials to test proposed
changes and then defer any decision until the conclusion of the trial period.
(b) Rebalancing. It is the objective of Operator to maximize the utility of the
Program and the customer experience at all times, but particularly during the hours between 6:00 AM and
10:00 PM (“Peak Hours”), in a cost effective manner. Maximizing utility requires that Operator take affirmative steps to address severe imbalances in the demand for and supply of available Bicycles and
empty Operable Docks during Peak Hours, which imbalances typically arise from patterns in demand and
usage in which Bicycles typically travel in one direction. Operator’s objective is to minimize instances,
and minimize the duration of those instances, in a cost effective manner, when the demand for an empty
Operable Dock or an available Bicycle at a Station is not met by the available supply at that Station. Achieving this objective is a multistep and collaborative process requiring the involvement, cooperation
and flexibility on the part of Operator, MTC and the Participating Cities. To achieve this objective,
during the period commencing upon the completion of Phase I and ending 6 months after the completion
of Phase V (the “Assessment Period”), the parties will (i) observe demand and use patterns as the Program
is being implemented to identify the times and locations that a shortage of empty Operable Docks and/or a shortage of available Bicycles arises and the extent of the shortages at those time and locations; and (ii)
assess alternative approaches to alleviating outages, including, by way of example, by (A) enlarging
existing Stations or adding new Stations in areas in which there is a shortage, (B) finding and utilizing
storage areas located near Stations that experience Bicycle shortages so that additional Bicycles can be
203193300.19 -15-
deployed quickly, (C) prioritizing Stations by demand and time of demand so that Operator may, at any
particular time, focus more attention on those Stations with the highest demand at that time and less
attention on those Stations with weaker demand at that time and have greater flexibility to address those
Stations with weaker demand, and (D) identifying the optimal time of day for Operator to transport Bicycles from areas in which there is a shortage of empty Operable Docks to areas in which there is a
shortage of Bicycles, which optimality will take into account when it is most efficient for Operator to
transport the Bicycles in order to meet the anticipated demand at the transferee Stations. As the parties
are developing approaches to alleviating outages during the Assessment Period, the parties shall also
reformulate a commercially reasonable KPI for Rebalancing. While Operator will strive to reduce and eliminate Cluster Outages at all times commencing on the completion of a Phase, liquidated damages for
the Rebalancing KPI will not be assessed for any Phase until 6 months after the completion of such Phase.
The Rebalancing KPI will be refined and reformulated during the Assessment Period, and the KPI, as
refined and reformulated, will be fully implemented and effective immediately after the end of the
Assessment Period. The parties recognize that as patterns of use and demand, as well as levels of use and demand, change from and after the Assessment Period, different outages may arise, which will also need
to be addressed in the manner set forth above.
2.6.3 Subject to Events of Force Majeure, if Operator fails to comply with the KPIs,
Operator shall be required to pay MTC liquidated damages as calculated in Appendix
A, provided that the maximum aggregate liquidated damages payable by Operator in any calendar year for failure to comply with the KPIs is 4% of Ridership Revenue for
such calendar year.
(a) MTC is entitled to liquidated damages for failure of Operator to comply with
the KPIs by notice (a “KPI Failure Notice”) given to Operator (i) not more
frequently than once per quarter, and (ii) not later than 120 days after the occurrence of the related failure, except with respect to the failure to comply
with a KPI that is measured on an annual basis, for which the KPI Failure
Notice shall be given by March 31 of the following calendar year. Each KPI
Failure Notice shall provide specific and detailed information about the failure
to comply and the amount of the liquidated damages due in connection therewith.
(b) Prior to the later of (a) 30 days after Operator’s receipt of a KPI Failure Notice
and (b) the end of the calendar quarter in which such KPI Failure Notice is
given (the later of (a) and (b) being the “KPI LD Payment Date”), Operator
shall either pay the full amount of liquidated damages set forth in the KPI Failure Notice or 50% of such amount along with a notification to MTC that
Operator seeks to contest, in good faith, the assessment of the liquidated
damages (a “KPI Contest Notice”). The KPI Contest Notice shall provide
specific and detailed information that rebuts or challenges the information
contained in the corresponding KPI Failure Notice. After a KPI Contest Notice is given, any disputes relating to the subject matter of the KPI Failure Notice
and the KPI Contest Notice shall be resolved in accordance with the Dispute
Resolution Process.
(c) If Operator does not timely give a KPI Contest Notice in response to a KPI
Failure Notice, then interest on the liquidated damages set forth in the KPI
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Failure Notice shall accrue at the Applicable Interest Rate in effect from time to
time commencing on the KPI LD Payment Date. If Operator does timely give a
KPI Contest Notice in response to a KPI Failure Notice and the Dispute
Resolution Process results in Operator being required to pay liquidated damages, then Operator shall make such payment within 30 days following the
date that the liquidated damages dispute is resolved in accordance with the
Dispute Resolution Process, and interest on the liquidated damages shall accrue
at the Applicable Interest Rate in effect from time to time commencing on such
30th date.
2.7 [INTENTIONALLY OMITTED]
2.8 Ownership of Equipment. Except as provided in Sections 3.2 and 3.3, all Equipment shall
at all times be the property of Operator, subject to the lien thereon by any Recognized Lender.
2.9 Costs of Program.
2.9.1 Except as otherwise provided, each party shall bear its own costs in connection with the Program, if such costs are applicable, including, but not limited to, costs incurred in connection with: negotiating this Agreement and the Coordination Agreement and
preparing the Siting Criteria; Site selection; the review required for issuance of Site
Permits, Installation Scheduling Permits, Special Traffic Permits and other permits;
Equipment installation; exercising enforcement, inspection and audit rights; prosecuting or defending claims arising from the Program, and marketing, to the extent that MTC and/or the Participating Cities choose to undertake marketing.
2.9.2 Except as otherwise provided in Section 2.9.3, MTC and the Participating Cities shall
not be obligated to pay or bear any of the costs associated with or expenses incurred for
the Equipment, Software, or Services.
2.9.3 Each Participating City may elect, if additional incremental dedicated capital and operating funds becomes available for the Program, to expand the Program within its
borders by adding Stations, Docks and Bicycles, provided that such Participating City
shall be responsible for securing funds to pay for the cost of purchasing, installing,
maintaining and operating the Equipment required for such expansion as set forth in Appendix A of the Coordination Agreement.
2.9.4 Operator shall reimburse a Participating City for any other work performed by such
Participating City under this Agreement in furtherance of the Program, provided that
prior to performing such work such Participating City shall notify Operator that such
work will be performed at the expense of Operator, such Participating City provides an itemized invoice for any such work, and Operator is billed for the actual cost incurred by such Participating City without a markup or premium. Operator shall pay for such
work within 30 days following receipt of the itemized invoice therefor. In connection
with the installation of a Station, such other work may include, but is not limited to, (i)
any necessary changes to signs, parking meters and curb paint, and (ii) installation of any striping, delineators or parking blocks outside the perimeter of a Station if the foregoing items are not installed by Operator.
203193300.19 -17-
2.10 Use of Data. All data generated by the Program will be owned by Operator. Operator will
grant MTC and the Participating Cities a non-exclusive, royalty-free, irrevocable, perpetual license to use
all data generated by the Program, other than personally-identifiable information that can identify
individual users, their addresses, their credit card information and other personal information about users, for non-commercial purposes and on a real-time basis; and MTC and each of the Participating Cities shall
have the right to grant to others a sublicense to use all such data for non-commercial purposes.
2.11 [INTENTIONALLY OMITTED]
2.12 [INTENTIONALLY OMITTED]
2.13 No Discrimination. Operator shall not discriminate in the implementation of the Program or in the provision of Services on the basis of race, creed, color, national origin, sex, age, marital status, or
real or perceived sexual orientation.
2.14 Accessibility. In implementing and operating the Program, Operator shall comply with all
applicable requirements of the Americans with Disabilities Act, Section 508 of the Rehabilitation Act of
1973 and all other applicable federal, state and local requirements relating to persons with disabilities, including any rules or regulations promulgated thereunder. Such compliance shall extend to the location
and design of Equipment as well as the Program’s website and any mobile application for the Program.
2.15 Personally Identifiable Information (“PII”). All PII obtained or maintained by Operator in
connection with this Agreement shall be protected by Operator from unauthorized use and disclosure.
This includes, but is not limited to, the secure transport, transmission and storage of PII used or acquired in the performance of this Agreement. Operator agrees to properly secure and maintain any computer
systems (hardware and software applications) or electronic media that it will use in the performance of
this Agreement. This includes ensuring all security patches, upgrades, and anti-virus updates are applied
as appropriate to secure PII that may be used, transmitted, or stored on such systems in the performance of
this Agreement. Operator agrees to comply with the information handling and confidentiality requirements outlined in the California Information Practices Act (Civil Code sections 1798 et.seq.). In
addition, Operator warrants and certifies that in the performance of this Agreement, it will comply with all
applicable statutes, rules, regulations and orders of the United States and the State of California relating to
the handling and confidentiality of PII and, as provided in Section 16, agrees to indemnify MTC against
any loss, cost, damage or liability by reason of Operator’s violation of this provision.
2.16 Notwithstanding anything to the contrary contained herein or in the Coordination
Agreement, as of the Effective Date, (a) the City of Berkeley and the City of Oakland have not completed
the approval processes necessary for such cities to execute the Coordination Agreement and for the
Coordination Agreement to be effective as to such cities, (b) neither such city is a Participating City, and
(c) the Coordination Agreement and this Agreement do not apply to such cities. Upon completion by each such city of its approval processes, including the adoption by each such city of a franchise ordinance
as referenced in Sections 29.1 and 32.4 of the Coordination Agreement, and the execution by each such
city of the Coordination Agreement, the Coordination Agreement shall thereupon be effective as to such
city, each such city shall thereupon be a Participating City under this Agreement and Coordination
Agreement, which agreements shall thereupon apply to such city, and the Program Area shall thereupon be expanded to encompass the entirety of such city (the date thereof, as to Berkeley, being the “Berkeley
Effective Date,” and, as to Oakland, being the “Oakland Effective Date”). If either or both of such cities
does not approve the execution of the Coordination Agreement, then the Parties shall make appropriate
203193300.19 -18-
amendments to this Agreement and the Coordination Agreement to reflect the removal of such city or
cities, as applicable, from the Program. In addition, the Parties are anticipating that the Berkeley
Effective Date will occur in February, 2016 and the Oakland Effective Date will occur in March, 2016. If
either such date does not occur until after March 31, 2016, then the Parties shall amend Sections 3.4 and 4.2 to make appropriate adjustments to the timing of the Program.
PROGRAM AREA AND EXPANSION; PROGRAM SIZE; PROGRAM TIMING
3.1 Program Area. As of the Effective Date, the Program Area encompasses the entirety of the cities of Emeryville, San Francisco and San Jose. The Program Area shall also encompass the entirety of the City of Berkeley as of the Berkeley Effective Date and the entirety of the City of Oakland as of the
Oakland Effective Date.
3.2 Program Area Expansion. Following expiration of the Pilot Program, each of the
Peninsula Pilot Cities may elect, by notice to Operator, to continue the bike share program in such Peninsula Pilot City, provided that the Peninsula Pilot Cities shall be responsible for paying the cost of upgrading, purchasing, installing, maintaining and operating the Equipment in accordance with the
schedule applicable to the Peninsula Pilot Cities set forth in Appendix B. Following the completion of
Phase V, the other Eligible Cities may elect, by notice to Operator, to develop a bike share program in the
Eligible Cities, provided that the other Eligible Cities shall be responsible for paying the cost of purchasing, installing, maintaining and operating the Equipment in accordance with the schedule applicable to the other Eligible Cities set forth in Appendix B. Operator shall be required to maintain the
Equipment purchased by an Electing City in a state of good repair throughout the Term, and at the end of
the Term, Operator shall return such Equipment to the Electing City in good working order but subject to
reasonable wear and tear from use and subject to loss and damage caused directly by users. Each Electing City shall enter into with Operator a separate service agreement to establish the number of Stations, Docks and Bicycles for such city, and the schedule for installation of the Equipment for such city, which
agreement will also address, among other matters, (i) Siting Criteria, the Site selection process, Street
Treatment Requirements, the protocols and procedures for the submission and review of applications and
the issuance of permits and approvals, and the Electing City’s requirements with respect to each of the foregoing, (ii) De-installations, Adjustments and Deactivations, and (iii) advertising and sponsorship.
3.3 Program Size. The Program Fleet for Phases I through V is 7,000 to 7,055, allocated
among the Participating Cities as follows:
3.3.1 4,500 in San Francisco;
3.3.2 1,000 in San Jose;
3.3.3 1,400 in East Bay, as follows:
(a) 850 in Oakland
(b) 100 in Emeryville
(c) 400 in Berkeley
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(d) 50 to be determined based on additional system planning analysis;
3.3.4 If Palo Alto elects to participate in the Program, 37 Bicycles will be distributed to Palo
Alto; if Mountain View elects to participate in the Program, 59 Bicycles will be
distributed to Mountain View; and if Redwood City elects to participate in the Program, 59 Bicycles will be distributed to Redwood City; if the sum of the Bicycles
to be distributed to the Peninsula Pilot Cities that elect to participate in the Program is
less than 100, then Operator will distribute in San Francisco, San Jose and East Bay an
additional number of Bicycles equal to the difference between 100 and such sum; and
if none of the Peninsula Pilot Cities elect to participate in the Program, then Operator will distribute an additional 100 Bicycles in San Francisco, San Jose and East Bay.
3.3.5 The minimum number of Stations in the Participating Cities is 500.
3.4 Program Timing. The schedule for Operator to obtain Site Permits and to install the
Equipment is as follows:
3.4.1 Phase I. Operator shall submit to the Participating Cities complete applications for Site Permits for Stations containing 25% of the total Bicycles for San Jose, East Bay
and San Francisco (the “Phase I Stations”) by the date that is 5 months after the
Effective Date, such date being subject to extension by Events of Force Majeure or by
Participating City Delay (such date, as it may be so extended, being the “Agreed Phase
I Site Permit Submission Date”). Operator shall not be obligated to commence installation of fully functional and operational Bicycles and related Equipment at such
Sites until the date that is 5 months after the issuance by the Participating Cities of Site
Permits for 75% of the Phase I Stations and shall complete such installation for all such
Sites by the date that is 5 months after the issuance by the Participating Cities of Site
Permits for the remainder of such Stations, such date being subject to extension by Events of Force Majeure or by Participating City Delay (such date, as it may be so
extended, being the “Agreed Phase I Completion Date”; the installation of the
percentage of total Bicycles and related Equipment as required by this paragraph being
“Phase I”). Any AD Equipment that is acquired by Operator will count toward the
Bicycles and related Equipment required for Phase I. Based on the schedule set forth in this paragraph, the objective of the Parties is for Operator to complete Phase I by the
date that is 10 months after the Effective Date (such date being the “Scheduled Phase I
Completion Date”). Notwithstanding anything to the contrary contained in this
Agreement, if Operator fails to submit to the Participating Cities complete applications
for Site Permits for 75% of the Phase I Stations by the date that is 30 days after the Agreed Phase I Site Permit Submission Date, or if Operator fails to place a purchase
order, taking into account AD Equipment to be used by Operator, for 75% of the Phase
I Bicycles and 75% of the Phase I Stations, by the date that is 30 days after the issuance
by the Participating Cities of Site Permits for 75% of the Phase I Stations, then as the
sole remedy of MTC and the Participating Cities under this Agreement for such failures, MTC shall have the right to terminate this Agreement upon 10 days’ notice to
Operator without any further right of Operator or any Recognized Lender to remedy
such failure. Operator shall provide evidence of such purchase order reasonably
promptly following a request by MTC.
203193300.19 -20-
3.4.2 Phase II. Operator shall submit to the Participating Cities complete applications for
Site Permits for Stations containing an additional 15% of the total Bicycles for San
Jose, East Bay and San Francisco (the “Phase II Stations”) by the date that is 9 months
after the Effective Date, such date being subject to extension by Events of Force Majeure or by Participating City Delay (such date, as it may be so extended, being the
“Agreed Phase II Site Permit Submission Date”). Operator shall not be obligated to
commence installation of fully functional and operational Bicycles and related
Equipment at such Sites until the date that is 5 months after the issuance by the
Participating Cities of Site Permits for 75% of the Phase II Stations and shall complete such installation for all such Sites by the date that is 5 months after the issuance by the
Participating Cities of Site Permits for the remainder of such Stations, such date being
subject to extension by Events of Force Majeure or by Participating City Delay (such
date, as it may be so extended, being the “Agreed Phase II Completion Date”; the
installation of the percentage of total Bicycles and related Equipment as required by this paragraph being “Phase II”). Based on the schedule set forth in this paragraph, the
objective of the Parties is for Operator to complete Phase II by the date that is 14
months after the Effective Date (such date being the “Scheduled Phase II Completion
Date”).
3.4.3 Phase III. Operator shall submit to the Participating Cities complete applications for Site Permits for Stations containing the remaining 60% of the total Bicycles for East
Bay (the “Phase III Stations”) by the date that is 12 months after the Effective Date,
such date being subject to extension by Events of Force Majeure or by Participating
City Delay (such date, as it may be so extended, being the “Agreed Phase III Site
Permit Submission Date”). Operator shall not be obligated to commence installation of fully functional and operational Bicycles and related Equipment at such Sites until the
date that is 5 months after the issuance by the Participating Cities of Site Permits for
75% of the Phase III Stations and shall complete such installation for all such Sites by
the date that is 5 months after the issuance by the Participating Cities of Site Permits
for the remainder of such Stations, such date being subject to extension by Events of Force Majeure or by Participating City Delay (such date, as it may be so extended,
being the “Agreed Phase III Completion Date”; the installation of the percentage of
total Bicycles and related Equipment as required by this paragraph being “Phase III”).
Based on the schedule set forth in this paragraph, the objective of the Parties is for
Operator to complete Phase III by the date that is 17 months after the Effective (such date being the “Scheduled Phase III Completion Date”).
3.4.4 Phase IV. Operator shall submit to the Participating Cities complete applications for
Site Permits for Stations containing an additional 30% of the total Bicycles for San
Jose and San Francisco (the “Phase IV Stations”) by the date that is 16 months after the
Effective Date, such date being subject to extension by Events of Force Majeure or by Participating City Delay (such date, as it may be so extended, being the “Agreed Phase
IV Site Permit Submission Date”). Operator shall not be obligated to commence
installation of fully functional and operational Bicycles and related Equipment at such
Sites until the date that is 5 months after the issuance by the Participating Cities of Site
Permits for 75% of the Phase IV Stations and shall complete such installation for all such Sites by the date that is 5 months after the issuance by the Participating Cities of
203193300.19 -21-
Site Permits for the remainder of such Stations, such date being subject to extension by
Events of Force Majeure or by Participating City Delay (such date, as it may be so
extended, being the “Agreed Phase IV Completion Date”; the installation of the
percentage of total Bicycles and related Equipment as required by this paragraph being “Phase IV”). Based on the schedule set forth in this paragraph, the objective of the
Parties is for Operator to complete Phase IV by the date that is 20 months after the
Effective Date (such date being the “Scheduled Phase IV Completion Date”).
3.4.5 Phase V. Operator shall submit to the Participating Cities complete applications for
Site Permits for Stations containing 30% of the total Bicycles for San Jose and San Francisco (the “Phase V Stations”) by the date that is 22 months after the Effective
Date, such date being subject to extension by Events of Force Majeure or by
Participating City Delay (such date, as it may be so extended, being the “Agreed Phase
V Site Permit Submission Date”). Operator shall not be obligated to commence
installation of fully functional and operational Bicycles and related Equipment at such Sites until the date that is 5 months after the issuance by the Participating Cities of Site
Permits for 75% of the Phase V Stations and shall complete such installation for all
such Sites by the date that is 5 months after the issuance by the Participating Cities of
Site Permits for the remainder of such Stations, such date being subject to extension by
Events of Force Majeure or by Participating City Delay (such date, as it may be so extended, being the “Agreed Phase V Completion Date”; the installation of the
percentage of total Bicycles and related Equipment as required by this paragraph being
“Phase V”). Based on the schedule set forth in this paragraph, the objective of the
Parties is for Operator to complete Phase V by the date that is 26 months after the
Effective Date (such date being the “Scheduled Phase V Completion Date”).
3.5 Failure to Achieve Completion of any Phase. Notwithstanding anything to the contrary in
this Agreement, for the avoidance of doubt, the sole remedy of MTC and the Participating Cities against
Operator under this Agreement for Operator’s failure to complete Phases I, II, III, IV or V by the Agreed
Phase I Completion Date, the Agreed Phase II Completion Date, the Agreed Phase III Completion Date,
the Agreed Phase IV Completion Date, and the Agreed Phase V Completion Date, respectively, is to reduce the Initial Term pursuant to Section 2.3, subject to the rights of the Recognized Lender.
3.6 Pilot Program. Attachment A sets forth the terms and conditions pursuant to which MTC
and Operator have agreed that Operator will continue operation of the Pilot Program.
SITING
4.1 General. The Coordination Agreement, together with the Siting Criteria, sets forth, among
other matters, (a) the Siting Criteria and the Site selection process for determination and approval of
locations of the Stations in each Participating City, and (b) the protocols and procedures for the
submission materials by Operator to each Participating City for, and the issuance by the Participating City of, Site Plan approvals and permits to install the Equipment at each Station.
203193300.19 -22-
4.2 Delays in Approval: The following constitute delay (“Participating City Delay”) for which
Operator is entitled to an extension in the Agreed Site Permit Submission Dates and the Agreed
Completion Dates:
4.2.1 Identification of Sites. If, notwithstanding fulfillment of Operator’s obligations under the Coordination Agreement regarding community engagement, field work and
outreach, Operator fails to identify, by a date that is not less than 2 months prior to the
Agreed Site Permit Submission Date for a Phase, 75% of the Sites required for such
Phase, such Sites being both viable and acceptable to the Participating Cities and the
applicable communities, or Operator fails to identify, by a date that is not less than 1 month prior to such Agreed Site Permit Submission Date, the remaining 25% of the
Sites required for such Phase, such Sites being both viable and acceptable to the
Participating Cities and the applicable communities, then such Agreed Site Permit
Submission Date shall be extended by any reasonably necessary additional period
required by Operator to identify a sufficient number of viable and acceptable Sites for such Phase.
4.2.2 Issuance of Site Permits. If Operator timely submits complete applications for the Site
Permits for any Phase by the applicable Agreed Site Permit Submission Date but the
Participating Cities fail to issue Site Permits for 75% of the Stations by the date that is
3 months prior to the Scheduled Phase Completion Date for such Phase other than on account of errors or omissions by Operator or valid reasons for denial, then such failure
shall constitute Participating City Delay and Operator shall have the right to delay
submission of applications for Site Permits for the next following Phase until a
reasonable period after the Participating Cities issue Site Permits for 75% of the
Stations for such Phase.
4.2.3 Installation Scheduling Permits. If the period of time for the Participating Cities to
issue Installation Scheduling Permits exceeds, on average, 7 days after final submission
of the required materials by Operator, or if more than 25% of the Installation
Scheduling Permits are issued 14 days or longer after final submission of the required
materials, other than on account of errors or omissions by Operator or valid reasons for denial, then the Agreed Completion Dates shall be extended to reflect any reasonably
necessary additional period required by Operator to complete the Phases.
RESERVED
IMPROVEMENTS, MAINTENANCE, REPAIR AND OPERATION
6.1 Operator shall establish and maintain during the Term prompt and efficient procedures for handling complaints from the public for which Operator receives a Notification. Such procedures shall be
consistent with all applicable laws, rules and regulations and the provisions of this Section. Such
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procedures shall be set forth in writing and copies thereof shall be maintained at Operator’s office and
shall be available to the public and the Participating Cities upon request.
6.2 Operator will operate a primary call center that will answer calls in person 24 hours per
day, 7 days per week. Operator shall conspicuously post a notice on each Station and each bicycle advising the general public that they may direct their complaints and comments to Operator’s call center.
Such call center shall have a full-time availability to handle calls in English, Spanish and Cantonese,
whether by in-house staff or by utilization of a translation service.
6.3 Operator shall maintain written, accurate and complete records of all complaints, and those
records shall be available to MTC through appropriate Software or, at MTC’s reasonable advance request, in written form. Such records shall indicate: (i) the specific Equipment, including its identifying number
and location at a specific point in time, for which the complaint was made; (ii) the type of complaint;
(iii) the date and time of complaint; (iv) if the complaint is in written form (non-electronic) and the
information is available, the name, address, and telephone number of the Person filing the complaint;
(v) Operator’s action to address the complaint; and (vi) to the extent applicable, the date of resolution of the complaint. All such records shall be retained by Operator throughout the Term. Within 7 business
days following a request by MTC, Operator shall provide MTC with records of complaints by location or
time period, and statistical reports by type of complaint, location of complaint, Station or Bicycle, and
time of complaint.
6.4 Following the Effective Date, MTC may, at its option, request that Operator provide it with a full inventory of Bicycles, including numbers and dates of lease or purchase.
6.5 Operator may, without incurring any liquidated damages or causing a default hereunder,
(a) shut down the Program or reduce the number of Bicycles and Stations deployed and/or operating in
the Program Area for weather-related or other emergencies for the duration of the emergency in its
reasonable discretion, (b) reduce the number of Bicycles and Stations deployed and/or operative in the Program Areas as needed to implement upgrades to the Functional Specifications, and (c) phase-out
Kiosks when they have become obsolete on account of the availability and usage of mobile phone apps.
6.6 Operator shall incorporate Wayfinding Elements on each Station as directed and approved
by MTC with input from the Participating Cites.
6.7 Nothing in this Agreement shall limit Operator’s right to upgrade the Functional Specifications.
ADVERTISING AND SPONSORSHIP
7.1 Operator is responsible for identifying Sponsors and developing branding for the Program tied to the Sponsors. In no event shall any Sponsor of Operator produce or sell alcohol products, tobacco
products, firearms, other products banned by the Participating Cities or products otherwise deemed
offensive to the general public. MTC, in consultation with the Participating Cities, shall provide written
approval to Operator prior to Operator entering into a Sponsorship agreement with the Title Sponsor,
which approval shall not to be unreasonably withheld or delayed. If MTC declines to give consent or
203193300.19 -24-
approval referred to hereunder, it will so advise Operator and provide Operator an opportunity to discuss
with MTC and an opportunity to attempt to meet MTC’s objections.
7.2 Operator shall not install, or permit to be installed, on any Equipment, any Tobacco
Advertising, Alcohol Advertising, Firearms Advertising or other Prohibited Advertising. Advertising on any Equipment, including electronic media, shall be consistent with guidelines adopted by each
Participating City for outdoor advertising as set forth in this Agreement. Operator shall not place any
Advertising or Sponsorship acknowledgment matter that is indecent, in obvious bad taste, or demonstrates
a lack of respect for public morals or conduct. (The prohibitions and restrictions in this Section 7 and in
Section 29 of the Coordination Agreement are referred to collectively as the “Advertising Restrictions”.)
7.3 Operator shall comply with all applicable laws, rules and regulations in force as of the
Effective Date and which may hereafter be adopted, to the extent not grandfathered under the law, with
respect to Advertising and Sponsorship.
7.4 Neither MTC nor any Participating City shall have any liability or obligation with regard
to any Advertising or Sponsorship that survives the termination or expiration of this Agreement, except MTC and the Participating Cities, at no cost to MTC or the Participating Cities, shall cooperate with the
Recognized Lender to keep the Sponsorship agreement in effect while a replacement operator is being
pursued and will continue to cooperate if a replacement operator is selected.
REVENUE SHARING
8.1 Definitions.
8.1.1 “Contract Year” shall mean (a) the period commencing on the Agreed Phase I
Completion Date and ending on December 31 of the calendar year in which the Agreed
Phase I Completion Date falls, which period shall constitute Contract Year 1, and (b) each subsequent calendar year during the Term, the first of which is Contract Year 2
8.1.2 “Ridership Revenue” shall mean all revenues to the extent actually collected by
Operator as determined on a GAAP basis as Program membership or user payments
(including but not limited to annual, weekly and daily membership payments), and any
other Program revenue generated through Bicycle ridership, net of sales taxes or other taxes imposed by law that Operator is obligated to collect and net of credit card fees
netted out of amounts due to Operator by the credit company prior to payment to
Operator and other billing related charges treated by the party imposing such charges in
a similar manner.
8.1.3 “Ridership Revenue Hurdle” shall mean $18,000,000 per calendar year, subject to CPI Adjustment. The Ridership Revenue Hurdle shall be prorated for any Contract Year
that is not 365 days.
8.1.4 “Sponsorship Revenue” shall mean all revenues to the extent actually collected by
Operator as determined on a GAAP basis as a result of Program advertising and
sponsorships, including without limitation revenue generated in connection with (a)
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naming rights related to the Program and (b) Sponsorship or Advertising placements on
Bicycles, Stations, Equipment, website, mobile applications or other physical or web-
based materials, net of sales taxes or other taxes imposed by law that Operator is
obligated to collect and net of credit card fees and other billing related charges.
8.1.5 “Sponsorship Revenue Hurdle” shall mean $7,000,000 per calendar year, subject to
CPI Adjustment. The Sponsorship Revenue Hurdle shall be prorated for any Contract
Year that is not 365 days.
8.2 Within 120 days following the end of each Contract Year during the Term, Operator shall:
8.2.1 Deliver to the MTC a schedule, certified by a senior officer of Operator, setting forth the Ridership Revenue and the Sponsorship Revenue for such Contract Year; and
8.2.2 Pay to MTC an amount equal to 5% of the excess of Ridership Revenue for such
Contract Year over the Ridership Revenue Hurdle for such Contract Year, subject to
Section 8.2.4.
8.2.3 Pay to MTC an amount equal to 5% of the excess of Sponsorship Revenue for such Contract Year over the Sponsorship Revenue Hurdle for such Contract Year, including
all Sponsorship Revenue for the period between the Effective Date and Contract Year
1, provided that Operator may defer payment of any amount owed for Sponsorship
Revenue for Contract Years 1 through 5 during the Term until Contract Years 6
through 10 during the Term, subject to Section 8.2.4. Operator shall pay any amounts so deferred in equal monthly instalments during Contract Years 6 through 10 during
the Term. If the Term is reduced pursuant to Section 2.3, then Operator shall pay the
amounts so deferred within 120 days following the expiration of this Agreement.
8.2.4 Notwithstanding anything to the contrary herein, if Participating City Delay results in
an insufficient number of Site approvals for Operator to accommodate 500 Stations (being the minimum number of Stations identified in Section 3.4) by the Scheduled
Phase V Completion Date plus 90 days (the “Scheduled Phase V Plus 90 Days Date”),
then in lieu of MTC’s share of Ridership Revenue and Sponsorship Revenue being
determined in accordance with the 5% amount set forth in Sections 8.2.2 and 8.2.3,
such percentage shall be reduced to the product of 5% and a fraction whose numerator is the number of Stations for which a Site approval has been issued by such date and
whose denominator is 500, and such reduced amount shall apply retroactively and
prospectively until Site approvals for an aggregate of 500 Stations have been issued.
Any amounts theretofore paid by Operator to MTC under this Section 8.2 in excess of
such amount due to MTC shall be credited against amounts thereafter payable to MTC under this Section 8.2. Notwithstanding the foregoing, if at any time during the period
commencing on the Scheduled Phase V Plus 90 Days Date and ending on the date on
which Site approvals for an aggregate of 500 Stations have been issued (such period
being the “Revenue Sharing Credit Period”) the Ridership Revenue or the Sponsorship
Revenue is less than the Ridership Revenue Hurdle or the Sponsorship Revenue Hurdle, respectively, then Operator shall be entitled to a credit against amounts
thereafter payable to MTC under this Section 8.2 equal to the sum of (a) the product of
(i) the amount by which the Ridership Revenue Hurdle for such period exceeds the
203193300.19 -26-
Ridership Revenues during such period, and (ii) the amount by which the percentage
above has been reduced from 5% in accordance with the reduction set forth on the first
sentence of this paragraph, and (b) the product of (i) the amount by which the
Sponsorship Revenue Hurdle for such period exceeds the Sponsorship Revenues during such period, and (ii) the amount by which the percentage above has been
reduced from 5% in accordance with the reduction set forth on the first sentence of this
paragraph. If the Revenue Sharing Credit Period is less than one year, then the
calculations in the preceding sentence shall be pro-rated based on the duration of the
Revenue Sharing Credit Period. If the Revenue Sharing Credit Period is longer than one year, then the calculations for any fractional period shall be similarly pro-
rated.Any amount not paid to MTC when due under Section 8.2 shall accrue interest on
the overdue amount at the Applicable Interest Rate in effect from time to time.
8.3 No acceptance of any payment due pursuant to Sections 8.2 shall be construed as an accord
that the payment is the correct amount, nor shall such acceptance of payment be construed as a release of any claim that MTC may have for further or additional sums payable under this Agreement.
PRICE SCHEDULES.
9.1 Operator agrees that the amount and terms of the fees it charges users of the Program shall be consistent with the provisions of this Section. Membership Fees and Initial Ride Periods shall be consistent with Section 9.2, the Annual Membership Fee for users eligible for the affordability
subscription specified in Section 9.3.1 shall be as described in said Section 9.3.1, the maximum Bicycle
usage charge shall be consistent with Section 9.5 and the fees for damaged, lost, stolen or otherwise
unreturned Bicycles shall be consistent with Section 9.6 initially charged by Operator shall be consistent with this Section. A “Membership Fee” is an amount that entitles the purchaser of the membership (a “member”, for the period of such purchased membership) to check out (as defined below) one or more
Bicycle(s) at a time, for the length of time described below, provided that the member shall be charged a
usage fee associated with the time period the Bicycle is checked out beyond the Initial Ride Period. A
Bicycle is “checked out” for the period from the time it is removed from a Dock to the time it is returned to a Dock. A member may check out and return a Bicycle from or to any Dock at any Station in the Program, for an unlimited number of times, at any time during the period of the member’s membership,
with the usage fee applicable to each such checkout and return sequence being calculated separately (so,
for example, a Regular Annual Member may, within the member’s membership period, check out a
Bicycle and return it within the first 30 minutes after checkout, and then subsequently check out a Bicycle and return that Bicycle within the first 30 minutes after that checkout, without incurring any usage fee for either checkout period).
9.2 Membership Fees, New Ridership Programs/Arrangements, and Initial Ride Periods:
9.2.1 Operator shall offer an annual membership (“Annual Membership”) for a fee (the
“Annual Membership Fee”) in an amount not to exceed the Annual Membership Fee Cap in effect from time to time. The Annual Membership Fee Cap shall be $149 for a one-year period, subject to increase on the first anniversary of the Effective Date and
on each subsequent anniversary of the Effective Date by a percentage amount equal to
the CPI increase for the trailing 4 calendar quarters preceding each such anniversary
203193300.19 -27-
plus 2% (so, for example, if the CPI increase were 1% for the trailing four calendar
quarters preceding a particular anniversary of the date hereof, the applicable permitted
percentage increase in the Annual Membership Fee Cap as of that anniversary would
be 3%). An Annual Member whose Annual Membership Fee is subject to the Annual Membership Fee Cap is sometimes referred to as a “Regular Annual Member” and the
corresponding Annual Membership is the “Regular Annual Membership.” The period
of an Annual Membership shall run from the day the annual membership is activated
until the first anniversary of the date on which the Annual Membership had been
activated (but a membership purchased on February 29 shall expire on March 1 of the following year);
9.2.2 Annual Memberships may be paid in 12 equal monthly instalments at a price not
greater than 120% of the Annual Membership Fee;
9.2.3 All memberships will include a free period of usage (the “Initial Ride Period”), which
is the length of time at the beginning of each individual Trip to which additional usage fees will not be applied. For Regular Annual Memberships and affordability
memberships, the Initial Ride Period is 30 Minutes. Usage fees will be applied to all
Trips that exceed the Initial Ride Period; and
9.2.4 For monthly, weekly and daily memberships, and for usage of the Program by non-
members, Operator will determine the applicable fees, usage fees, and periods of use for members beyond the Initial Ride Period in its sole discretion.
9.2.5 Nothing in the foregoing shall limit the right of Operator to offer premium
memberships featuring an Initial Rider Period longer than 30 minutes for an Annual Membership Fee
greater than $149.
9.3 Affordability Option:
9.3.1 Notwithstanding the permitted rate for a Regular Annual Membership set forth in
Section 9.2.1 (as adjusted pursuant to Section 9.11), Operator shall charge those
eligible for an “affordability subscription” no more than $60 per annum (excluding
sales tax) as the Annual Membership Fee, or $5.00 per month for a 12-month
membership. Such rate is subject to annual CPI increase on the first anniversary of the Effective Date and on each subsequent anniversary of the Effective Date for the trailing
4 calendar quarters preceding each such anniversary plus 2%.
9.3.2 Members of households enrolled in the Utility Lifeline Programs (also known as
California Alternative Rates for Energy (CARE)) available in the MTC Area are
eligible for affordability memberships. At least 30 days prior to the completion of Phase I, Operator shall propose, for MTC’s review and approval, procedures for
verifying enrollment in CARE. In San Francisco, those who meet Muni Lifeline
income requirements as determined by the City of San Francisco’s Human Services
Agency are also eligible for the affordability membership. Upon mutual agreement of
the Parties, eligibility may expand to include other categories of persons so long as the eligibility is determined by third parties.
203193300.19 -28-
9.3.3 Members enrolling through the affordability program shall be entitled to the same
rights and privileges as Regular Annual Members.
9.3.4 The usage fees for affordability members shall not exceed the rate charged to Regular
Annual Members.
9.4 The checkout period for the purposes of calculating usage fees shall always commence
with the time a Bicycle is actually removed from a Dock, and it shall not be based on the time of insertion
of a payment or identification card.
9.5 The maximum Bicycle usage charge initially charged with respect to any member shall be
$100 per 24 hour period, not including charges for damaged, lost, stolen or otherwise unreturned Bicycles.
9.6 Fees for damaged, lost, stolen or otherwise unreturned Bicycles initially charged shall be
(i) $1,200, if not returned, or (ii) if returned, the sum of all direct costs of the repair, including all labor
and parts, as determined by Operator in its reasonable discretion, plus a 10% administrative fee; provided,
however, that the fees charged to affordability members for unreturned or damaged Bicycles shall be not more than 33% of the fees set forth in the preceding clauses (i) and (ii). Operator shall waive such fees for
an any member who is not at fault for the unreturned or damaged Bicycle.
9.7 Operator shall at all times post on all Stations and on Operator’s website a complete and
up-to-date fee description that sets forth each and every current membership and usage fee offered by
Operator, the methods of purchasing memberships and paying fees, available discounts on such fees, the applicability and terms of such discounts and, to the extent applicable, how to apply for or qualify for
such discounts, and fees associated with damaged, lost, stolen or otherwise unreturned Bicycles. Operator
shall furnish written copies of such material to the public upon request.
9.8 Operator shall accept credit card and debit card payments online and at all Stations but in
the case of debit cards only those that have a Visa or Mastercard logo on them. Operator may employ such other methods of payment as it may determine.
9.9 All required state sales and use taxes with respect to membership and usage fees shall be
collected and paid by Operator, as required by applicable law.
9.10 Operator shall be permitted to create Program pricing discount programs, which may be
targeted in connection with marketing and outreach efforts, and in connection with Sponsorship or Advertising programs, to expand or enable Program use among different communities or for other lawful
purposes.
9.11 At any time and from time to time, Operator shall have the right:
9.11.1 To adjust the amount of the Annual Membership Fee specified in Section 9.2.1
downwards at any time and upwards on each anniversary of the Effective Date by an amount not to exceed the Annual Membership Fee Cap then in effect;
9.11.2 To adjust the amount of the maximum Bicycle usage charge specified in Section 9.5
and the fees for damaged, lost, stolen or otherwise unreturned Bicycles specified in
Section 9.6 downwards at any time and upwards on each anniversary of the Effective
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Date by a percentage amount equal to the CPI increase for the trailing 4 calendar
quarters preceding each such anniversary plus 2% (so, for example, if the CPI increase
were 1% for the trailing 4 calendar quarters preceding a particular anniversary of the
date hereof, the applicable permitted percentage increase in the Annual Membership Fee Cap as of that anniversary would be 3%);
9.11.3 Any upwards adjustment permitted under this Section 9.11 and not made as of any
anniversary date may be made at any time after such anniversary date without
derogation of Operator’s right to make any other upwards adjustments permitted under
this Section 9.11;
9.11.4 To adjust in its sole discretion all other fees, time periods and charges specified
hereunder other than those fees, time periods and charges specified in Section 9.2.1 and
Section 9.3; and
9.11.5 To adjust upward the duration of the Initial Ride Period.
9.12 MTC shall have the right to review and approve the initial Program membership waiver and any material changes thereto, which approval shall not be unreasonably withheld.
9.13 At any time and from time to time, Operator may, in its sole discretion, offer discounts and
promotions for the Program.
MERCHANDISING, LICENSING AND INTELLECTUAL PROPERTY
10.1 [INTENTIONALLY OMITTED]
10.2 Subject to the limitations, terms and conditions as may be imposed by the Sponsor in the
Sponsor’s discretion, upon request by MTC and the Participating Cities, Operator shall seek to obtain for
MTC and the Participating Cities, or shall assist MTC and the Participating Cities to obtain, for the benefit of MTC, the Participating Cities and their respective business partners and sublicensees, non-
exclusive licenses to use during the term of any Sponsorship agreement the Sponsor trademarks, logos,
servicemarks, and other similar intellectual property identified for use in connection with the Sponsorship
agreement (individually and/or collectively the “Sponsor Property”) to market and promote the Program
under the name or title for the Program adopted by Operator for the Program (the “Program Name”), which name shall be subject to the consent of MTC and the Participating Cities, as applicable, to the
extent the Program Name consists of MTC/Participating City Property; provided, however, the use of any
Sponsor Property by MTC or the Participating Cities shall comply with reasonable quality control
measures required by the Sponsorship agreement. To the extent that the Program Name incorporates
MTC/Participating City Property, MTC and/or one or more of the Participating Cities, as the case may be, shall own the portion of any Program Name that consists of MTC/Participating City Property. For further
clarity, with respect to obtaining the aforementioned licenses, Operator is not the agent of MTC or the
Participating Cities and has no authority to enter into agreements on behalf of or otherwise bind MTC or
the Participating Cities.
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10.3 Subject to the limitations, terms and conditions as may be imposed by the Sponsor in the
Sponsor’s discretion to the extent the Operator Property incorporates any Sponsor Property, including,
without limitation, the Sponsor’s consent, Operator hereby grants to MTC and the Participating Cities and
their respective business partners and sublicensees a non-exclusive, royalty-free license to use any trademarks, logos, servicemarks, and other similar intellectual property developed by Operator
(individually and/or collectively the “Operator Property”) required in connection with marketing and
promoting the Program during the Term.
10.4 MTC hereby grants to Operator the exclusive right to use during the Term the name “Bay
Area Bike Share” and variations thereof (individually and/or collectively “Bay Area Bike Share”). As part of Operator’s exclusive right to use “Bay Area Bike Share”, Operator shall have the right to
sublicense the use of “Bay Area Bike Share” to the Sponsor or any other Person to market or promote the
Program. Such rights shall terminate upon expiration or termination of this Agreement, but subject to the
rights of the Recognized Lender.
10.5 Notwithstanding the foregoing Sections, the Recognized Lender shall not be precluded from collateralizing any intellectual property of Operator.
RESERVED
11.1 [INTENTIONALLY OMITTED]
11.2 [INTENTIONALLY OMITTED]
11.3 [INTENTIONALLY OMITTED]
RESERVED
12.1 [INTENTIONALLY OMITTED]
12.2 [INTENTIONALLY OMITTED]
12.3 [INTENTIONALLY OMITTED]
MARKETING
13.1 Operator shall create a marketing plan for the Program, subject to approval by MTC, which
approval will not be withheld so long as the plan is not in bad taste, offensive, obscene or derogatory to
MTC or any Participating City. Following such approval, Operator shall market the Program in accordance with such plan. The marketing budget and the allocation of such budget shall be determined
by Operator, in its sole discretion. The marketing plan shall include, at a minimum, demonstrations,
203193300.19 -31-
events, social media outreach, programs, partnerships and other efforts to educate residents of the
Participating Cities about bike share, to launch the Program and to grow membership and ridership in a
financially sustainable manner.
13.2 A portion of Operator’s marketing plan will include marketing and outreach to low-income communities, disadvantaged communities, and communities for which English is not the native language,
shall be subject to the approval of MTC and the Participating Cities, shall comply with local requirements
regarding language access for each Participating City, shall comply with local standards for decency and
not be offensive to the general public. MTC retains the non-exclusive right to conduct marketing and
outreach to low-income neighborhoods and limited English proficiency neighborhoods. Operator’s marketing activities shall not violate the Advertising Restrictions.
13.3 [INTENTIONALLY OMITTED]
WEBSITE
14.1 Operator shall create and maintain a Program website, subject to the MTC’s prior review.
The Program’s website shall include, at a minimum, all of the following elements:
14.1.1 Eligibility requirements;
14.1.2 Subscription information and rate schedules;
14.1.3 Payment and subscription processing information;
14.1.4 Method for subscribers to update required information;
14.1.5 Subscriber agreement and acceptance of terms;
14.1.6 Map of network of Stations and real-time availability of Bicycles at each Station;
14.1.7 Frequently Asked Questions;
14.1.8 Safety requirements and information (including malfunctions and crashes);
14.1.9 News and operational updates;
14.1.10 Special events notices;
14.1.11 Links to other bike programs and events;
14.1.12 Call center contact information;
14.1.13 Real-time information on Bicycles and Docks for app developers (e.g. JSON Feed);
14.1.14 System-wide anonymized historical data;
14.1.15 For individual members, that member’s ridership history;
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14.1.16 For individual members, that member’s payment history; and
14.1.17 Operator’s privacy policy; and
14.1.18 Translation capability to Cantonese, Spanish, and Vietnamese at a minimum.
14.2 Operator shall keep all information on the Program’s website updated.
SECURITY FUND
15.1 Prior to installation by Operator of the first new Station, Operator shall deposit with MTC
a security deposit (“Security Fund”) in the amount of $250,000.00. Interest on the Security Fund shall accrue in an interest bearing bank account for the benefit of Operator, and all such interest shall be paid annually to Operator on each anniversary of the Effective Date.
15.2 Operator shall maintain $250,000.00 in the Security Fund at all times during the Term and
for 90 days after the end of the Term. Upon expiration of the foregoing period, the remaining balance of
the Security Fund shall be disbursed to Operator, unless prior to the expiration of such 90-day period MTC commences litigation against Operator, the underlying claim is covered by the Security Fund, and such litigation is not finally resolved prior to the expiration of such period, in which case an amount of
the Security Fund equal to the amount of the outstanding claim shall be retained and only until such claim
is resolved. Any amounts remaining in the Security Fund that are not being retained in accordance with
this paragraph shall be promptly returned to Operator, and MTC shall fully and timely cooperate with the payment of the Security Fund to Operator.
15.3 The Security Fund shall serve as security for the faithful performance by Operator of all
terms, conditions and obligations of this Agreement and shall be available for withdrawal under the
following circumstances:
15.3.1 If Operator breaches a payment obligation under this Agreement and fails to remedy such breach within 10 business days following notice by MTC to Operator (a “Payment Breach”), other than the payment of liquidated damages under Section 2.6.3, which is addressed in Section 15.3.5.
In the event of a Payment Breach, MTC shall be entitled to withdraw from the Security Fund the amount
of the money that is due and payable as set forth in such notice, unless within such 10 business day period
Operator initiates the Dispute Resolution Process by giving MTC notice stating that it contests the occurrence of such Payment Breach or the amount thereof. This Section 15.3.1 does not cover a Default under Section 18.1.1 (which is covered in Section 15.3.4).
15.3.2 If Operator commits a non-monetary breach under this Agreement that results in
damage to any municipal structure or property of MTC or a Participating City, Operator fails to repair
such damage within 30 days following notice by MTC to Operator and in response thereto MTC or the applicable Participating City undertakes such repair (a “Property Damage Breach”), in which event MTC shall be entitled to withdraw from the Security Fund the costs incurred by MTC or the applicable
Participating City to undertake such repair, provided such costs are reasonable. Notwithstanding MTC’s
withdrawal from the Security Fund for a Property Damage Breach, Operator shall have the right to contest
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such Property Damage Breach or the costs incurred by initiating the Dispute Resolution Contest, provided
that Operator gives MTC notice thereof not later than 30 days after such withdrawal.
15.3.3 If Operator fails to undertake any other non-monetary obligation under this
Agreement within the period required under this Agreement and in response thereto MTC or a Participating City exercises self-help to perform such obligation pursuant to a provision of this Agreement
that expressly permits self-help or with respect to which self-help is a reasonable response (e.g., a failure
of Operator to timely complete a Station De-Installation; or failure of Operator to remove advertising that
violates Advertising Restrictions within 24 hours of notice to Operator) (a “Self-Help Situation”), in
which event MTC shall be entitled to withdraw from the Security Fund the costs incurred by MTC or the applicable Participating City to undertake such self-help, provided such costs are reasonable.
Notwithstanding MTC’s withdrawal from the Security Fund for a Self-Help Situation, Operator shall have
the right to contest such Self-Help Situation or the costs incurred by initiating the Dispute Resolution
Contest, provided that Operator gives MTC notice thereof not later than 30 days after such withdrawal.
This Section 15.3.3 does not cover a breach of Section 16 or matters covered by Section 15.3.2 or 15.3.4.
15.3.4 Operator commits a Default, in which event MTC shall be entitled to withdraw
the actual, direct damages arising from such Default unless prior to the expiration of the applicable cure
period set forth in Section 18.1 Operator initiates the Dispute Resolution Process by giving MTC notice
stating that it contests the occurrence of such Defaults. This Section 15.3.4 does not cover matters
covered by Section 15.3.1, 15.3.2, 15.3.3 or 15.3.5.
15.3.5 Operator fails to pay any amount of liquidated damages, and interest, if any due to
MTC pursuant to Section 2.6.3 within the time periods provided therein.
15.4 Each notice by MTC to Operator under Section 15.3 of a failure, breach or Default, as
applicable, shall provide specific and detailed information about Operator’s non-compliance, together
with the amount MTC is intending to withdraw and detailed support for such amount, if then known. Each notice from Operator to MTC under Section 15.3 to contest the occurrence of such non-compliance
or the amount to be withdrawn, which notice shall commence the Dispute Resolution Process, shall
provide specific and detailed information that rebuts or challenges the information contained in the
corresponding notice provided by MTC. Within 2 days following any withdrawal from the Security
Fund, MTC shall notify Operator of the date and amount of the withdrawal, together with detailed support for the amount of the withdrawal.
15.5 MTC may not seek recourse against the Security Fund for any cost or damages for which
MTC has previously been compensated by Operator or from the Security Fund. The withdrawal of the
amounts from the Security Fund shall constitute a credit against the amount of the applicable liability of
Operator.
15.6 If a withdrawal from the Security Fund is made, Operator shall be required to replenish the
Security Fund by the amount withdrawn within 30 days after receipt of notice of such withdrawal.
Notwithstanding the foregoing, if Operator is contesting in good faith MTC’s right to withdraw in
accordance with the Dispute Resolution Process, then Operator shall not be obligated to replenish on
account of such withdrawal until 30 days after such dispute is finally resolved in accordance with the Dispute Resolution Process. Interest on the amount required to be replenished shall accrue at the
Applicable Interest Rate in effect from time to time commencing on such 30th date.
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15.7 The obligation to perform and the liability of Operator pursuant to this Agreement shall not
be limited in nature or amount by the acceptance of the Security Fund required by this Section 15.
INDEMNITY
16.1 Indemnification. Operator shall defend, indemnify and save harmless MTC, the
Participating Cities, and their respective commissioners, officers, agencies, departments, agents, and
employees (each, an “Indemnified Party”; and collectively, “Indemnified Parties”) from and against any
and all claims, demands, causes of action, proceedings or lawsuits brought by third-parties (“Claims”), and all losses, damages, liabilities, penalties, fines, forfeitures, costs and expenses arising from or
incidental to any Claims (including attorneys’ fees and other costs of defense) (collectively, with Claims,
“Liabilities”), resulting from, or arising out of, the operation of the Program and the provision of Services,
whether such operation or Services is performed or provided by Operator or by Operator’s subcontractors
or any other person acting for or on behalf of Operator.
16.2 Notwithstanding the foregoing, the following shall be excluded from Operator’s
indemnification and defense obligations contained in the preceding sentence: any Liabilities to the extent
resulting from, or arising out of, (i) the gross negligence or willful misconduct of any Indemnified Party,
(ii) Operator complying with the written directives or written requirements of a Participating City, if the
Operator has previously objected to such written directives or requirements in writing, with respect to (A) the location or configuration of any Station in relation to the street or sidewalk on which such Station is
located or to which it adjoins or (B) a Participating City’s Street Treatment Requirements, or (iii) the
condition of any public property outside of the perimeter of a Station and not otherwise controlled by
Operator (and expressly excluding from this clause (iii) the condition of the Bicycles or other Equipment).
If any Claim against Operator includes claims that are covered by clause (iii) of the preceding sentence or claims contesting a Participating City’s authority to issue a permit for a Station, then each Party shall be
responsible for its own defense against such claims.
16.3 Upon receipt by any Indemnified Party of actual notice a Claim to which such Indemnified
Party is entitled to indemnification in accordance with Sections 16.1 and 16.2, such Indemnified Party
shall give prompt notice of such Claim to Operator. Operator shall assume and prosecute the defense of such Claim at the sole cost and expense of Operator. Operator may settle any such Claim in its discretion
so long as such settlement includes an unconditional release of the Indemnified Party.
INSURANCE
17.1 Minimum Coverages. The insurance requirements specified in this section shall cover
Operator’s own liability and the liability arising out of work or services performed under this Agreement
by any subconsultants, subcontractors, suppliers, temporary workers, independent contractors, leased
employees, or any other persons, firms or corporations that Operator authorizes to work under this
Agreement (hereinafter referred to as “Agents”). Operator shall, at its own expense, obtain and maintain in effect at all times during the life of this Agreement the following types of insurance against claims,
damages and losses due to injuries to persons or damage to property or other losses that may arise in
connection with the performance of work under this Agreement.
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17.2 Operator shall include in every subcontract the requirement that the Agent maintain
adequate insurance coverage with appropriate limits and endorsements to cover the risks associated with
work to be performed by the Agent. To the extent that an Agent does not procure and maintain such
insurance coverage, Operator shall be responsible for any and all costs and expenses that may be incurred in securing such coverage or in fulfilling Operator’s indemnity obligation under Section 16 as to itself or
any of its Agents in the absence of such coverage.
17.3 In the event Operator or its Agents procure excess or umbrella coverage to maintain certain
requirements outlined below, these policies shall also satisfy all specified endorsements and stipulations,
including provisions that Operator’s or its Agent’s insurance, as the case may be, be primary without right of contribution from MTC.
17.3.1 Workers' Compensation Insurance with Statutory limits, and Employer’s Liability
Insurance with a limit of not less than $1,000,000 per employee for injury by disease
and $1,000,000 for injury for each accident, and any and all other coverage of
Operator’s employees as may be required by applicable law. Such policy shall contain a Waiver of Subrogation in favor of MTC. Such Workers’ Compensation &
Employer’s Liability may be waived, if and only for as long as Operator is a sole
proprietor or a corporation with stock 100% owned by officers with no employees.
17.3.2 Commercial General Liability Insurance for Bodily Injury and Property Damage
liability, covering the operations of Operator and Operator’s officers, agents, and employees and with limits of liability which shall not be less than $1,000,000
combined single limit per occurrence with a general aggregate liability of not less than
$2,000,000, and Personal & Advertising Injury liability with a limit of not less than
$1,000,000. Such policy shall contain a Waiver of Subrogation in favor of MTC.
MTC and its commissioners, directors, officers, representatives, agents and employees are to be named as additional insureds. In addition, the entities listed in Section 17.12
and their respective commissioners, directors, officers, representatives, agents and
employees are also to be named as additional insureds. Such insurance shall be
primary and contain a Separation of Insureds Clause as respects any claims, losses or
liability arising directly or indirectly from Operator’s operations.
17.3.3 Business Automobile Insurance for all automobiles owned (if any), used or maintained
by Operator and Operator’s officers, agents and employees, including but not limited to
owned (if any), leased (if any), non-owned and hired automobiles, with limits of
liability which shall not be less than $1,000,000 combined single limit per accident.
17.3.4 Umbrella Insurance in the amount of $4,000,000 providing excess limits over Employer’s Liability, Automobile Liability, and Commercial General Liability
Insurance. Such umbrella coverage shall be following form to underlying coverage
including all endorsements and additional insured requirements.
17.3.5 Errors and Omissions Professional Liability Insurance for errors and omissions and the
resulting damages, including, but not limited to, economic loss to MTC and having minimum limits of $5,000,000 per claim. Such policy shall contain cyber risk
coverages including network and internet security liability coverage, privacy liability
coverage and media coverage. The policy shall provide coverage for all work
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performed by Operator and any work performed or conducted by any
subcontractor/consultant working for or performing services on behalf of Operator.
Operator may delegate the obligation to maintain Errors and Omissions Professional
Liability Insurance to an Agent, but the failure of such Agent to maintain such insurance shall not relieve Operator of its obligation to maintain such insurance.
17.3.6 Property Insurance. Property Insurance covering Operator’s own business personal
property and equipment to be used in performance of this Agreement, materials or
property to be purchased and/or installed on behalf of MTC (if any), and builders risk
for property in the course of construction (if applicable). Coverage shall be written on a "Special Form" policy that includes theft, but excludes earthquake, with limits at least
equal to the replacement cost of the property. Such policy shall contain a Waiver of
Subrogation in favor of MTC.
17.4 Acceptable Insurers. All policies will be issued by insurers qualified to do business in
California and with a Best’s Rating of A-VIII or better.
17.5 Self-Insurance. Operator’s obligation hereunder may be satisfied in whole or in part by
adequately funded self-insurance, upon evidence of financial capacity satisfactory to MTC.
17.6 Deductibles and Retentions. Operator shall be responsible for payment of any deductible
or retention on Operator’s policies without right of contribution from MTC. Deductible and retention
provisions shall not contain any restrictions as to how or by whom the deductible or retention is paid. Any deductible or retention provision limiting payment to the Named Insured is unacceptable.
17.7 In the event that MTC is entitled to coverage as an additional insured under any Operator
insurance policy that contains a deductible or self-insured retention, Operator shall satisfy such deductible
or self-insured retention to the extent of loss covered by such policy, for any lawsuit arising from or
connected with any alleged act of Operator, subconsultant, subcontractor, or any of their employees, officers or directors, even if Operator or subconsultant is not a named defendant in the lawsuit.
17.8 Claims Made Coverage. If any insurance specified above is written on a “Claims-Made”
(rather than an “occurrence”) basis, then in addition to the coverage requirements above, Operator shall:
17.8.1 Ensure that the Retroactive Date is shown on the policy, and such date must be before
the date of this Agreement or the beginning of any work under this Agreement;
17.8.2 Maintain and provide evidence of similar insurance for at least three (3) years
following the expiration or termination of this Agreement, including the requirement of
adding all additional insureds; and
17.8.3 If insurance is cancelled or non-renewed, and not replaced with another claims-made
policy form with a retroactive date prior to the commencement of any work hereunder, Operator shall purchase “extended reporting” coverage for a minimum of three (3)
years after the expiration or termination of this Agreement.
17.9 Failure to Maintain Insurance. All insurance specified above shall remain in force until the
expiration or termination of this Agreement. Operator must notify MTC if any of the above required
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coverages are non-renewed or cancelled. The failure to procure or maintain required insurance and/or an
adequately funded self-insurance program will constitute a material breach of this Agreement.
17.10 Certificates of Insurance. Prior to commencement of any work hereunder, Operator shall
deliver to MTC Certificates of Insurance verifying the aforementioned coverages. Such certificates shall make reference to all provisions and endorsements referred to above and shall be signed on behalf of the
insurer by an authorized representative thereof.
17.11 Disclaimer. The foregoing requirements as to the types and limits of insurance coverage to
be maintained by Operator are not intended to and shall not in any manner limit or qualify the liabilities
and obligations otherwise assumed by Operator pursuant hereto, including, but not limited to, liability assumed pursuant to Section 16 .
17.12 Additional Insureds: The following entities are to be named as Additional Insureds under
applicable sections of this Section 17 and as Indemnified Parties pursuant to Section 16.
17.12.1 Metropolitan Transportation Commission (MTC)
17.12.2 City of Berkeley
17.12.3 City of Oakland
17.12.4 City of San Francisco
17.12.5 City of Emeryville
17.12.6 City of San Jose
TERMINATION AND DEFAULT
18.1 The following events shall be a Default under this Agreement:
18.1.1 A breach by Operator of a payment obligation under Section 8 [Revenue Sharing] and
the failure to remedy such breach within 10 business days after receipt by Operator from the Executive Director of written notice of such breach;
18.1.2 A breach by Operator of a material obligation under Section 7 of this Agreement or
Section 29 of the Coordination Agreement [Advertising and Sponsorship]; Section 9
[Price Schedules], Section 10 of this Agreement or Section 30 of the Coordination
Agreement [Merchandising, Licensing and Intellectual Property]; any separate licensing agreement between Operator (or its affiliate) and MTC and/or a Participating City; Section 31 of the Coordination Agreement [Marketing, Promotions and
Reporting]; Section 14 [Website]; Section 15 [Security Fund]; Section 16 [Indemnity];
Section 20 [Employment and Purchasing]; and Section 21 [Inspection and Audit], and
the failure to remedy such breach within 10 business days after receipt by Operator from the Executive Director of written notice of such breach;
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18.1.3 A breach by Operator of Section 22 [Assignment];
18.1.4 A breach by Operation of Section 17 [Insurance] and the failure to remedy such breach
within 5 business days after receipt by Operator from the Executive Director of written
notice of such breach;
18.1.5 (a) Operator’s chronic Program-wide failures to abide by its obligations under Sections
2, 3, 4 and 6 of this Agreement and Section 22 of the Coordination Agreement, which
failures materially and adversely affect the non-pecuniary benefits to be derived by
MTC and the Participating Cities under this Agreement, (b) the failure of Operator to
submit to MTC and the Participating Cities, within 15 business days following receipt by Operator from the Executive Director of written notice of such failures, a credible
business plan for Operator to proactively and comprehensively address Operator’s
deficiencies, which plan shall be subject to approval by MTC in consultation with the
relevant Participating Cities, and (c) the failure of Operator to take concrete steps to
implement such response plan within 30 days of MTC’s approval of such plan;
18.1.6 If the Security Fund balance falls below $50,000 and Operator does not replenish the
full amount of the Security Fund within 10 days following notice thereof from the
Executive Director. However, if Operator is then contesting one or more prior
withdrawals from the Security Fund in accordance with the Dispute Resolution Process
and the aggregate amount in dispute exceeds $200,000, then such $50,000 may only be used pursuant to Section 15.3.2 or Section 15.3.3 until such dispute has been finally
resolved;
18.1.7 The commencement of any proceeding by Operator under the Bankruptcy Code or
relating to the insolvency, receivership, liquidation, or composition of Operator for the
benefit of creditors;
18.1.8 The commencement of any involuntary proceeding against Operator under the
Bankruptcy Code that has not been stayed or dismissed within 120 days of its
commencement;
18.1.9 If Operator or any of its officers, directors or senior management has been convicted
after the Effective Date under any state or federal law of any of the matters listed in clauses (a) through (e) of this Section 18.1.9: (x) in connection with a matter that is not
directly or indirectly connected with this Agreement or the Program and, in the case of
the conviction of an individual, such individual has not been terminated by Operator
within 30 days after Operator receives notice of such conviction, or (y) in connection
with a matter that is directly or indirectly connected with this Agreement or the Program. The matters referred to above as being listed in clauses (a) through (e) are
the following:
(a) A criminal offense that is incident to obtaining or attempting to obtain or to
performing a public or private contract;
(b) Fraud, embezzlement, theft, bribery, forgery, falsification, destruction of records, or receiving stolen property;
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(c) A criminal violation of any state or federal antitrust law;
(d) Violation of the Racketeer Influence and Corrupt Organization Act, 18 U.S.C. §
1961 et seq., or the Mail Fraud Act, 18 U.S.C. § 1341 et seq., for acts in
connection with the submission of bids or proposals for a public or private contract; or
(e) Conspiracy to commit any act or omission that would constitute grounds for
conviction or liability under any statute described in subparagraph (d) above.
18.1.10 If Operator or any of its officers, directors, partners, managers, 5 percent or greater
owners, principals, or other employees or persons substantially involved in its activities (a) are subject to a judgment of civil liability under any state or federal antitrust law for
acts or omissions in connection with the submission of bids or proposals for a public or
private contract, or (b) intentionally makes or causes to be made any false, deceptive,
or fraudulent material statement in any bid, proposal, or application for government
work, and the individual responsible for such act, omission or material misstatement, if an employee, has not been terminated by Operator, or if not an employee, the
relationship therewith has not been terminated, within 30 days after such judgment is
entered into in the case of clause (a) above or after a judgment is entered into that any
such material statement was intentionally false, deceptive or fraudulent in the case of
clause (b).
18.2 If a Default occurs, then, subject to Sections 3.5 and 18.3, MTC shall, at MTC’s option,
have any or all of the following remedies, all cumulative (so exercise of one remedy shall not preclude
exercise of another remedy), in addition to such other remedies as may be available at law or in equity or
under any other terms of this Agreement. MTC’s remedies include, but are not limited to:
18.2.1 Cause a withdrawal from the Security Fund, pursuant to Section 15, subject to any right of Operator to contest such withdrawal pursuant to the Dispute Resolution
Process;
18.2.2 Seek actual, direct damages only from Operator for such Default (and notwithstanding
anything to the contrary herein, in no event shall MTC be entitled to special,
consequential or punitive damages under this Agreement);
18.2.3 Seek to restrain by injunction the continuation of such Default;
18.2.4 Purchase the Equipment at its then fair market value, subject to the rights of the
Recognized Lender not to permit the sale of the Equipment to MTC;
18.2.5 Pursue any other remedy permitted by law or in equity or in this Agreement; or
18.2.6 Terminate this Agreement, subject to the rights of the Recognized Lender.
18.3 Nothing in this Agreement precludes Operator from contesting the existence of such
Default or the breach, failure or other occurrence underlying a Default in accordance with this Section
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18.3 and the Dispute Resolution Process. If Operator seeks to contest any of the foregoing, Operator must
notify MTC prior to the expiration of the applicable cure period set forth in Section 18.1. Following such
notice, the dispute shall be addressed and resolved in accordance with the Dispute Resolution Process.
Pending final resolution of such dispute, Operator may continue operating the Program in accordance with the terms of this Agreement, and any exercise by MTC of its remedies hereunder shall be stayed
until final resolution of such dispute in accordance with the Dispute Resolution Process. In addition, if
such final resolution is against Operator, then MTC shall have the right to terminate this Agreement only
if such Default is not cured within the period otherwise provided in the definition of Default to remedy
such default, provided that for this purpose the applicable remedy period shall commence upon the final resolution of such dispute.
18.4 Subject to the rights of the Recognized Lender (if any and if applicable), upon termination
of this Agreement on account of a Default by Operator, reduction of Initial Term under Section 2.3, or
expiration of the Term, Operator shall comply with the following close-out procedures:
18.4.1 Turning over to MTC or its designees copies of all books, records, documents and materials specifically relating to this Agreement and reasonably requested by MTC;
18.4.2 Submitting to MTC, within 120 days, a final statement and report relating to this
Agreement that has been reviewed by a certified public accountant or a licensed public
accountant;
18.4.3 Providing reasonable assistance to MTC during the transition; and
18.4.4 Continuing to operate the Program in accordance with the terms of this Agreement and
to effect an efficient and orderly transition of responsibility with respect to the
operation of the Program until the earlier of (i) 180 days after such termination and (ii)
the selection of a replacement operator for the Program and such replacement operator
commencing operation of the Program; provided, however, that Operator shall have the right to cease operating prior thereto if Operator experiences an operating shortfall
during the transition period and MTC fails to compensate Operator for such shortfall.
18.5 Subject to the rights of the Recognized Lender (if any and if applicable), upon termination
of this Agreement on account of a Default by Operator, reduction of the Initial Term under Section 2.3, or
expiration of the Term, MTC shall have the option to:
18.5.1 require Operator to remove all Equipment at its sole cost and expense;
18.5.2 subject to satisfaction of the Program Property Assignment Conditions, require
Operator to assign to MTC (or a third-party operator designated by MTC) the
Equipment and Operator’s rights under the Escrow Agreement, in which event
Operator shall reasonably cooperate with MTC (or such designee) to obtain the legal right to use the Software (excluding the Operator Basic Function Software and the
Operator Non-Basic Function Software) either through an assignment of Operator’s
license with the Vendor to MTC (or such designee) or by MTC (or such designee)
entering a license agreement for such Software with the Vendor; or
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18.5.3 subject to satisfaction of the Program Property Assignment Conditions, take over
operation of the Program, and in connection therewith assign to MTC the Equipment
and Operator’s rights under the Escrow Agreement, in which event Operator shall
reasonably cooperate with MTC to obtain the legal right to use the Software (excluding the Operator Basic Function Software and the Operator Non-Basic Function Software)
either through an assignment of Operator’s license with the Vendor to MTC or by
MTC entering a license agreement for such Software with the Vendor.
18.6 Not less than 6 months prior to the expiration of the Term, MTC shall elect either (a) to
purchase (or have a designee purchase) the Program Property at the expiration of the Term or (b) to require Operator to remove the Equipment upon expiration of the Term. If MTC elects clause (a), then
Operator and MTC shall negotiate a purchase price for the Program Property based on the fair market
value of the Program Property as an installed system, and at the expiration of the Term, Operator shall
reasonably assign to MTC (or its designee) the Equipment and Operator’s rights under the Escrow
Agreement and cooperate with MTC (or its designee) to obtain the legal right to use the Software (excluding the Operator Basic Function Software and the Operator Non-Basic Function Software) either
through an assignment of Operator’s license with the Vendor or by MTC (or its designee) entering a
license agreement for such Software with the Vendor, subject to satisfaction of the Program Property
Assignment Conditions. If MTC elects clause (b), then within 90 days of the expiration of the Term,
Operator shall remove all Equipment.
18.7 In the event of a breach of this Agreement by any Party or by any Participating City, the
other Party or parties shall act in good faith and exercise commercially reasonable efforts to mitigate any
damages or losses that result from such breach. Notwithstanding the foregoing, nothing contained in this
Section shall limit in any respect the rights of MTC and the Participating Cities to indemnification
pursuant to Section 16.
18.8 No Party shall be liable (including, but not limited to, for payment of liquidated damages)
for failure to perform any of its obligations, covenants, or conditions contained in this Agreement, to the
extent such failure is caused by the occurrence of an Event of Force Majeure, and such Party’s obligation
to perform shall be extended for a reasonable period of time, commensurate with the nature of the event
causing the delay, and no breach or default shall exist or liquidated damages be payable with respect to such extended period.
RIGHTS OF RECOGNIZED LENDER
19.1 Operator shall have the right to collaterally assign its rights under this Agreement to the
Recognized Lender as collateral for the Recognized Loan. Operator or the Recognized Lender shall
notify MTC of the existence of the Recognized Loan and the collateral assignment of this Agreement and
shall notify MTC of the name and address of the Recognized Lender. In no event shall there be more than
one Recognized Lender at any one time.
19.2 MTC shall give the Recognized Lender, at the address of such Recognized Lender and in
the manner set forth in Section 25.2 a copy of each notice of default at the same time as it gives notice of
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default to Operator. A notice of default to Operator shall not be effective unless a copy thereof is
concurrently given to the Recognized Lender.
19.3 The Recognized Lender shall, in the case of any Default by Operator under Section 18.1.1,
have a period of 10 days more than is given Operator, to remedy such Default prior to MTC terminating this Agreement on account of such Default, and in the case of a Default by Operator under Section 18.1.2
or 18.1.5, shall have a period of 10 days more than is given Operator to remedy such Default prior to
MTC terminating this Agreement on account of such Default, provided that if such Default is not one that
can be cured with the payment of money and if the Recognized Lender needs to exercise its remedies and
obtain access to its collateral prior to being able to effectuate the cure of any such default, such additional 10-day period shall, so long as the Recognized Lender is diligently and continuously pursuing such cure
and has provided written notice to MTC of its intent to cure such Default, be extended for such additional
time as is necessary for the Recognized Lender to obtain such access and commence and effectuate such
cure.
19.4 If this Agreement terminates on account of a Default, then Operator shall give any Recognized Lender prompt notice thereof. Within 60 days following receipt of such notice, the
Recognized Lender may elect to require MTC to enter into a new agreement with a replacement operator
designated by the Recognized Lender for the remaining Term of this Agreement, considered as if the
Term had not ended on account of such Default and on substantially the same terms as contained in this
Agreement (the “Replacement Agreement”). Within 120 days of such notice, the Recognized Lender shall identify a replacement operator and credible business plan for such replacement operator to
proactively and comprehensively address Operator’s deficiencies. Such replacement operator and
business plan shall be subject to the approval of MTC, which approval shall not be unreasonably withheld
or delayed. If MTC approves such replacement operator and business plan, then MTC and such
replacement operator shall enter into the Replacement Agreement. If MTC and the Recognized Lender are unable to agree on the replacement operator or the business plan within 150 days following such
notice, or if the Recognized Lender does not elect to require MTC to enter into a Replacement Agreement
within 60 days following receipt of such notice, then MTC shall have the right to exercise its other
remedies under Section 18.5 without regard to the rights of the Recognized Lender.
19.5 If pursuant to Section 2.3, MTC exercises its right to reduce the Initial Term by 5 years, then MTC shall give the Recognized Lender notice thereof. Within 60 days following receipt of such
notice, the Recognized Lender may elect to require MTC to enter into a new agreement with a
replacement operator designated by the Recognized Lender commencing on the expiration of the Term as
reduced pursuant to Section 2.3 for the remaining Term of this Agreement, considered as if the Term had
not been reduced pursuant to Section 2.3 and on substantially the same terms as contained in this Agreement. Within 120 days of such notice, the Recognized Lender shall identify a replacement operator
and credible business plan for such replacement operator to proactively and comprehensively address
Operator’s deficiencies. Such replacement operator and business plan shall be subject to the approval of
MTC, which approval shall not be unreasonably withheld or delayed. If MTC approves such replacement
operator and business plan, then MTC and such replacement operator shall enter into such replacement agreement. If MTC and the Recognized Lender are unable to agree on the replacement operator or the
business plan within 150 days following such notice, or if the Recognized Lender does not elect to require
MTC to enter into a replacement agreement within 60 days following receipt of such notice, then the
Recognized Lender shall have no further rights arising on account of the reduced Term.
203193300.19 -43-
19.6 MTC and Operator shall not amend or modify any provision of this Agreement if the effect
thereof is to reduce the Term, reduce Operator’s rights or increase Operator’s obligations in any material
respect, or weaken any of the Recognized Lender’s express rights under this Agreement, including the
Recognized Lender’s rights under this Section 19, in each case without the prior written consent of the Recognized Lender. MTC shall not accept a surrender of this Agreement by Operator, nor shall MTC and
Operator agree to a termination of this Agreement, without the prior written consent of the Recognized
Lender.
19.7 If Operator defaults on the Recognized Loan and as a result thereof the Recognized Lender
has a right under the applicable loan documents to foreclose on its Program-related collateral, then without the consent of MTC or any Participating City, the Recognized Lender (or a subsidiary thereof)
and/or a third party may succeed to the interest of Operator under this Agreement, so long as (a) the party
succeeding to the interest of Operator under this Agreement, or a third party manager designated by such
successor, has the experience and expertise to operate a large-scale bikeshare program, (b) such successor
succeeds to Operator’s interest in the Bicycles, other Equipment and other collateral, (c) such successor has substantially the same legal right to obtain replacement Bicycles and other Equipment, to utilize the
Bicycle patents and other Equipment patents, and to utilize the required Software that Operator has as of
the Effective Date; and (d) agrees to comply with all terms of this Agreement.
19.8 The terms and provisions of this Section 19 and the rights of the Recognized Lender
hereunder shall survive a termination of this Agreement pursuant to a Default or the expiration of this Agreement pursuant to Section 2.3.
EMPLOYMENT
20.1 Operator will pay wages to all of its employees that equal or exceed the living wage in effect as of the date of this agreement under State law or applicable local law.
20.2 Operator shall use reasonable efforts, at its own cost and expense, to conduct outreach for
employment purposes to residents of the Participating Cities for the opportunities to be created by the
construction, installation, operation, management, administration, marketing and maintenance of the
Program. Such recruitment activities shall include provisions for the posting of employment and training opportunities at appropriate Participating City agencies responsible for encouraging employment of Participating City residents. Operator shall ensure the promotion of equal employment opportunity for all
qualified Persons employed by, or seeking employment with, Operator. For San Francisco-based entry
level job openings with Operator, Operator shall post such openings through San Francisco’s First Source
Hiring Program and offer the City of San Francisco the first opportunity to refer qualified candidates to Operator for such openings.
20.3 Operator shall not refuse to hire, train, or employ, bar or discharge from employment or
discriminate against any individual in compensation, hours of employment, or any other term, condition,
or privilege of employment, including, but not limited to, any promotion, upgrading, demotion,
downgrading, transfer, layoff, or termination, on the basis of race, creed, color, national origin, sex, age, handicap, marital status, affectional preference or sexual orientation, in accordance with applicable law. Operator agrees to comply in all respects with all applicable federal, state and local employment
discrimination laws and requirements during the Term.
203193300.19 -44-
20.4 Operator shall select, train and employ such number of employees as is necessary or
appropriate for Operator to satisfy its responsibilities hereunder. Operator shall be the sole authority to
hire, terminate and discipline any and all personnel employed by Operator.
INSPECTION AND AUDIT RIGHTS
21.1 MTC shall have the right at reasonable times and upon reasonable notice to inspect the
installation, operation, and maintenance of the Program and its associated elements.
21.2 Operator shall open and maintain a facility in each of San Francisco, San Jose and East Bay to support Program operations.
21.3 Operator shall comply with the reporting requirements set forth in Appendix C.
21.4 Throughout the Term, Operator shall maintain complete and accurate books of account and
records of the business, ownership and operations of Operator with respect to the Program.
21.5 MTC has the right upon written demand with reasonable notice to Operator under the circumstances, to inspect, examine or audit during normal business hours all documents, records or other
information pertaining to Ridership Revenue and Sponsorship Revenue or any other data collected and
maintained by Operator to comply with the reporting requirements of Appendix C. All such documents
shall be made available at one of Operator’s local offices. All such documents shall be retained by
Operator for a minimum of 6 years following the expiration or termination of this Agreement.
RESTRICTION AGAINST ASSIGNMENT
22.1 Operator shall not sell, assign or otherwise transfer all or any portion of its interest in this
Agreement without the prior written consent of MTC, except as otherwise provided in Sections 19.1 and
19.7. Operator shall notify MTC of any proposed sale, assignment or transfer of this Agreement, in writing, at least 60 days prior to the proposed effective date of such sale, assignment or transfer. In the event that any such sale, assignment or transfer of this Agreement is approved by MTC, the purchaser,
assignee or transferee shall agree to be bound by all the covenants of this Agreement required of Operator
to the extent arising from and after the effective date of such sale, assignment or transfer. Any purported
sale, assignment or transfer without MTC’s approval as required above shall be void and of no force or effect. Nothing in the foregoing shall limit (a) the right of Bikeshare Holdings to sell, assign or otherwise transfer interests in Operator, (b) the right of direct or indirect owners of equity interests in Bikeshare
Holdings to sell, assign or otherwise transfer such interests, (c) the right of Bikeshare Holdings to sell,
assign or transfer all or substantially all of its assets, including its interest in this Agreement, so long as
Operator or, in the case of clause (c), its successor, has the experience and expertise to operate a large-scale bikeshare program and has substantially the same legal right to obtain replacement Bicycles and other Equipment, to utilize the Bicycle patents and other Equipment patents, and to utilize the required
Software that Operator has as of the Effective Date. In addition, nothing in the foregoing shall prohibit a
merger, reorganization, recapitalization, consolidation or similar transaction involving Bikeshare
Holdings or any direct or indirect holder of equity interests in Bikeshare Holdings, so long as the conditions set forth in the preceding sentence are satisfied.
203193300.19 -45-
DISPUTE RESOLUTION PROCESS
23.1 In the event of a dispute between the Parties, including, without limitation, a dispute
regarding liquidation damages pursuant to Section 2.6.3, a dispute regarding the Security Fund, a dispute regarding a breach of this Agreement or regarding the occurrence or continued existence of a Default, such dispute shall be addressed and resolved in accordance with the following (the “Dispute Resolution
Process”):
23.1.1 MTC’s Program Manager assigned to the Program and Operator’s General
Manager of the Program, or their respective delegates, shall meet, within 10 days after receipt by one Party of notification from the other Party of such dispute, to negotiate in good faith in order to try to resolve such dispute (the date of the first such meeting, or the expiration of such 10-day period if the
meeting is not timely held, being the “Initial Meeting Date”). A KPI Contest Notice shall constitute
appropriate notification for a dispute regarding a right to liquidated damages under Section 2.6.3, and a
rejection of a KPI Change Request shall constitute appropriate notification for a dispute under Section 2.6.2(a). If such persons fail to resolve such dispute within 15 days after the Initial Meeting Date, then the Executive Director of MTC and the President of Bikeshare Holdings shall meet promptly and negotiate in
good faith in order to resolve such dispute. If such persons fail to resolve such dispute within 30 business
days after the Initial Meeting Date, then such dispute shall be subject to mediation under Section 23.1.2.
As used in this Section 23.2.1, a meeting may be held in person, by conference call or by video conference. By agreement of the Parties, any of the deadlines set forth in this Section 23.1.1 may be extended or shortened. The process described in this Section 23.1.1 shall be confidential and treated as a
compromise negotiation for purposes of federal and state rules of evidence.
23.1.2 Unless the Parties otherwise agree, mediation shall be administered by the
American Arbitration Association (the “AAA”) in accordance with its Commercial Rules, or similar service. A request for mediation shall be made in writing, delivered to the other Party and filed with the applicable mediation service. Either Party may submit such request. The Parties shall share the
mediator’s fee and any filing fees equally. The mediation shall be held in San Francisco. The Parties
shall be represented by individuals of their choosing. Agreements reached in mediation shall be binding
on the Parties and enforceable in a State or Federal Court of competent jurisdiction sitting in San Francisco County. The mediation process shall be confidential and treated as a compromise negotiation for purposes of federal and state rules of evidence.
23.1.3 For the avoidance of doubt, the Parties shall comply with any settlement
agreement regarding any dispute that is the subject of a settlement agreement.
23.1.4 As used in this Agreement, “final resolution” of a dispute or a dispute being “finally resolved” means that (a) the Parties have entered into a settlement agreement to resolve such dispute, or (b) if either Party has initiated a judicial proceeding to contest such dispute, that a final-non-
appealable order of a court of competent jurisdiction has been issued for such dispute.
203193300.19 -46-
REPRESENTATIONS AND WARRANTIES OF OPERATOR
24.1 In addition to the representations, warranties, and covenants of Operator set forth elsewhere herein, Operator represents and warrants to MTC and the Participating Cities as of the Effective Date:
24.1.1 Operator is a limited liability company, validly existing and in good standing under the
laws of the State of Delaware, and it is duly authorized to do business in the State of
California;
24.1.2 The sole owner of Operator is Bikeshare Holdings; and
24.1.3 Operator has all requisite power and authority to own or lease its properties and assets,
to conduct its business as currently conducted and to execute, deliver and perform this
Agreement and all other agreements entered into or delivered in connection with or as
contemplated hereby.
24.1.4 The execution, delivery and performance of this Agreement and all other agreements, if any, entered into in connection with the transactions contemplated hereby have been
duly, legally and validly authorized by all necessary action on the part of Operator.
24.1.5 This Agreement has been duly executed and delivered by Operator and constitute the
valid and binding obligations of Operator, and are enforceable in accordance with their respective terms, subject to equitable legal principles and the laws governing creditors’ rights. Operator has obtained the requisite authority to authorize, execute and deliver
this Agreement and to consummate the transactions contemplated hereby and no other
proceedings or other actions are necessary on the part of Operator to authorize the
execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.
24.1.6 Neither the execution and delivery of this Agreement by Operator nor the performance
of its obligations contemplated hereby will:
(a) Conflict with, result in a material breach of or constitute a material default
under (or with notice or lapse of time or both result in a material breach of or constitute a material default under) (i) any governing document of Operator or to Operator’s knowledge, any agreement among the owners of Operator, or (ii)
any statute, regulation, agreement, judgment, decree, court or administrative
order or process or any commitment to which Operator is a party or by which it
(or any of its properties or assets) is subject or bound;
(b) Result in the creation of, or give any party the right to create, any material lien, charge, encumbrance, or security interest upon the property and assets of
Operator; or
203193300.19 -47-
(c) Terminate, breach or cause a default under any provision or term of any
contract, arrangement, agreement, license or commitment to which Operator is
a party.
24.1.7 Warranty of Services. In the performance of its services, Operator represents and warrants that it has and will exercise the degree of professional care, skill, efficiency,
and judgment of those with special expertise in providing such services, and that it
carries and will maintain all applicable licenses, certificates, and registrations needed
for the work in current and good standing.
24.1.8 Neither Operator nor any of its officers, directors or senior management has committed or been convicted (where such conviction is a final, non-appealable judgment or the
time to appeal such judgment has passed) of any criminal offense, including, but not
limited to, bribery or fraud, arising out of or in connection with (a) this Agreement, (b)
the award of this Agreement, or (c) any act to be taken pursuant to this Agreement by
MTC or its officers, employees or agents, or (d) the business activities and services to be undertaken or provided pursuant to this Agreement. Operator shall promptly
terminate its relationship with any office, director or senior management of Operator
who is convicted (where such conviction is a final, non-appealable judgment or the
time to appeal such judgment has passed) of any criminal offense, including, but not
limited to, bribery or fraud, arising out of or in connection with: (i) this Agreement, (ii) the award of this Agreement, (iii) any act to be taken pursuant to this Agreement by
MTC or its officers, employees or agents, or (iv) the business activities and services to
be undertaken or provided by Operator pursuant to this Agreement.
24.2 All representations and warranties contained in this Agreement shall survive the Term.
MISCELLANEOUS
25.1 Operator, MTC and the Participating Cites acknowledge and agree that the nature of the
Program requires extensive and ongoing long-term coordination among the Parties and the Participating Cities. Accordingly, no later than 10 business days after the Effective Date, Operator, MTC and, in
accordance with the Coordination Agreement, each Participating City, shall designate an employee as its
designated representative (the “Designated Representative”) to be the principal contact of such party in its
dealings with the other parties in connection with the implementation of the Program. Any party may
change its Designated Representative in its sole discretion so long as notice of such change is given to the other parties.
25.2 All notices, demands or requests under this Agreement shall be in writing and shall be
sufficiently given if sent by registered or certified mail, return receipt requested, by electronic mail
(email), by overnight mail, or by personal delivery, in each case to the address listed below, or to such
other location or person as any party may designate in writing from time to time. Any notice, demand or
203193300.19 -48-
request under this Agreement intended for the Participating Cities shall be sent to MTC. Any notice,
demand or request shall be deemed given on the date of receipt or rejection by the intended recipient.
If to MTC:
Metropolitan Transportation Commission Joseph P. Bort MetroCenter, Oakland, CA 94607-470
Attention: Executive Director
Email: SHeminger@mtc.ca.gov
Attention: General Counsel: Email: AWeil@mtc.ca.gov
Attention: Designated Representative
Email: KMulder@mtc.ca.gov
If to Operator:
Bay Area Motivate, LLC 5202 Third Avenue Brooklyn, New York 11220
Attention: Jay Walder, President and CEO
Email: jaywalder@motivateco.com
Attention: Justine Lee, Vice President and General Counsel Email: justinelee@motivateco.com
Bay Area Motivate, LLC
2200 Jerrold Avenue, Unit J
San Francisco, California 94124
Attention: Emily Stapleton, General Manager and Designated Representative Email: emilystapleton@motivateco.com
Notwithstanding the foregoing, any notice required to be given to Operator pursuant to Section 18 for
which a cure period is 10 business days or less or any other notice that requires action to be taken within
10 business days or less must be given by email, personal delivery or overnight mail service.
25.3 If Operator receives either a notice of default or a notice of noncompliance from a Sponsor, a lender or a material supplier, it shall notify MTC and supply a copy of the notice of noncompliance
within 5 days of receipt.
25.4 Upon request by Operator, MTC shall execute, acknowledge and deliver to Operator (or
directly to a designated third party) an estoppel certificate in a form reasonably acceptable to the Parties.
MTC shall sign, acknowledge, and return such estoppel certificate within 15 days after request, even if Operator is in default. Any estoppel certificate shall bind MTC to the extent set forth therein.
25.5 This Agreement shall be binding upon and inure to the benefit of the parties and their
respective permitted successors and assigns. The Recognized Lender shall be a third party beneficiary of
Section 19.
203193300.19 -49-
25.6 No failure on the part of MTC or Operator to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right
preclude any other right, except as provided herein, subject to the conditions and limitations established in
this Agreement. The rights and remedies provided herein are cumulative and not exclusive of any remedies provided by law, and nothing contained in this Agreement shall impair any of the rights of any
party under applicable law, subject in each case to the terms and conditions of this Agreement. A waiver
of any right or remedy by a party at any one time shall not affect the exercise of such right or remedy or
any other right or other remedy by such party at any other time. In order for any waiver of any party to be
effective, it must be in a writing signed by such party. The failure of MTC to take any action regarding a default by Operator shall not be deemed or construed to constitute a waiver of, or otherwise affect, the
right of MTC to take any action permitted by this Agreement at any other time regarding such default.
25.7 The clauses and provisions of this Agreement are intended to be severable. If any clause
or provision is declared invalid, in whole or in part, by any court, agency, commission, legislative body,
or other authority of competent jurisdiction, such provision shall be deemed a separate, distinct, and independent portion, and such declaration shall not affect the validity of the remaining portions hereof,
which other portions shall continue in full force and effect, but only so long as the essential terms
underlying this Agreement are not undermined. If, however, the essential terms underlying this
Agreement are undermined as a result of any clause or provision being declared invalid, in whole or in
part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, and such declaration is not stayed within 30 days by a court pending resolution of a legal challenge thereto or
an appeal thereof, the adversely affected party shall notify the other parties in writing of such declaration
of invalidity and the effect of such declaration of invalidity and the parties shall enter into good faith
negotiations to modify this Agreement to compensate for such declaration of invalidity. If the parties
cannot come to an agreement modifying this Agreement within 120 days (which 120 day period shall be tolled during any stay contemplated above) of such notice, then this Agreement shall terminate with such
consequences as would ensue if it terminated pursuant to Section 18, except Operator shall not be liable
for any damages.
25.8 If any applicable federal, state, or local law or any regulation or order is passed or issued,
or any existing applicable federal, state, or local law or regulation or order is changed (or any judicial interpretation thereof is developed or changed) in any way which undermines the essential terms
underlying this Agreement, the adversely affected party shall notify the other parties in writing of such
change and the effect of such change and the parties shall enter into good faith negotiations to modify this
Agreement to compensate for such change, subject to any necessary approvals of MTC and the
Participating Cities.
25.9 The headings contained in this Agreement are to facilitate reference only, do not form a
part of this Agreement, and shall not in any way affect the construction or interpretation hereof. Terms
such as “hereby,” “herein,” “hereof,” “hereinafter,” “hereunder” and “hereto” refer to this Agreement as a
whole and not to the particular sentence or paragraph where they appear, unless the context otherwise
requires. The term “may” is permissive; and, the terms “shall,” “must,” and “will” are mandatory, not merely directive. The term “day” means a calendar day, unless otherwise stated herein to be a “business
day.” The term year means any period of 365 days, unless otherwise stated herein to be a “calendar year.”
All references to any gender shall be deemed to include both the male and the female, and any reference
by number shall be deemed to include both the singular and the plural, as the context may require. Terms
used in the plural include the singular, and vice versa, unless the context otherwise requires. References
203193300.19 -50-
in this Agreement to Sections, Appendices and Exhibits are to Sections, Appendices and Exhibits of this
Agreement.
25.10 Operator shall conduct the work to be performed pursuant to this Agreement as an
independent contractor and not as an agent of MTC or any Participating City.
25.11 This Agreement shall be governed in all respects, including validity, interpretation and
effect, and construed in accordance with, the laws of the State of California, irrespective of conflict of
laws principles, as applicable to contracts entered into and to be performed entirely within the State of
California.
25.12 Subject to the requirement that disputes be addressed in accordance with the Dispute Resolution Process, each hereby irrevocably submits to the jurisdiction of any State or federal court
sitting in San Francisco County, California, over any suit, action or proceeding arising out of or relating to
this Agreement. Each party hereby irrevocably waives, to the fullest extent permitted by law, any
objection it may now or hereafter have to such venue as being an inconvenient forum.
25.13 Should any party employ an attorney for the purpose of enforcing or construing this Agreement, or any judgment based on this Agreement, in any legal proceeding whatsoever, including
insolvency, bankruptcy, arbitration, declaratory relief or other litigation, the prevailing party shall be
entitled to receive from the other party or parties thereto reimbursement for all reasonable attorneys’ fees
and all costs, including but not limited to service of process, filing fees, court and court reporter costs,
investigative costs, expert witness fees and the cost of any bonds, whether taxable or not, and such reimbursement shall be included in any judgment, decree or final order issued in that proceeding. The
“prevailing party” means the party in whose favor a judgment, decree, or final order is rendered.
25.14 No provision of this Agreement nor any Appendix or Exhibit shall be amended or
otherwise modified, in whole or in part, except by a written instrument, duly executed by the Parties and
approved as required by applicable law.
25.15 This Agreement may be executed in one or more counterparts which, when taken together,
shall constitute one and the same.
25.16 Time is of the essence with respect to the obligations of the parties under this Agreement
and with respect to the deadlines for submitting notices, including, without limitation, a KPI Failure
Notice, a KPI Contest Notice or any notice under Section 15.3 or 18.1.
25.17 If Operator publishes a work dealing with any aspect of performance under this
Agreement, or of the results and accomplishments attained in such performance, then MTC shall have a
royalty-free, non-exclusive and irrevocable license to reproduce, publish, or otherwise use and to
authorize others to use the publication, or, in the event that only a portion of the publication deals with an
aspect of performance under this Agreement, such portion of the publication.
TN WITNESS WHEREOF, MTC and Operator have executed this Agreement as of the Effective Date.
METROPOLITAN TRANSPORTATION COMMISSION
By:
Name:eriiinger
Title:Executive Director
Signature Page to Program Agreement
BAY AREA MOTIVATE,LLC
By:______
Name:Jay a1dr
Title:Presid nt ahd Chief Executive Officer
V
Signature Page to Program Agreement 5-2
203193300.19 A-1
Appendix A
Key Performance Indicators and Liquidated Damages
This Appendix A sets forth the Key Performance Indicators and the liquidated damages assessed against Operator for failing to comply with the Key
Performance Indicators. Key Performance Indicators are subject to extension for Events of Force Majeure. Liquidated damages are subject to the annual
limitation of 4% of Ridership Revenues.
KPI
#
Title Definition Measurement
Tool(s)1
Liquidated Damages
1 Station Cleaning
and Inspection
Station Cleaning for each Station must occur 2 times per
month-- one time between the first and fifteenth days of
the month, and one time between the sixteenth and last
days of the month. Litter removal needs to occur for on
street Stations at least once per week.
Additional litter removal to occur on an as-needed basis.
Operator records/
databases
$75 for each Station that is not
cleaned according to schedule.
2 Graffiti Removal (a) Except as required by clause (b) below, Operator shall
remove conspicuous graffiti within 72 hours after
Notification.
(b) Operator shall remove racist and hate graffiti within 4
hours after Notification.
Operator
records/databases
(a) $50 for each 24-hour period (or
part thereof) beyond 72 hours.
(b) $50 for each 4-hour period (or
part thereof) beyond 4 hours.
3 Litter Removal Operator shall remove conspicuous accumulations of
litter from Stations within 24 hours after Notification.
Operator
records/databases
$50 for each 4-hour period (or part
thereof) beyond 24 hours.
4 Bicycle
Maintenance
Every Bicycle in the Bicycle Fleet shall receive a Bicycle
Maintenance check at least once every two calendar
months.
Operator records/
databases
$25 for each Bicycle that is not
subject to a Bicycle Maintenance in
any 2-calendar month period.
1 Sources of information used to assess compliance with these service levels may include, but are not limited to, those listed in the “Measurement Tool(s)” column.
203193300.19 A-2
KPI
#
Title Definition Measurement
Tool(s)1
Liquidated Damages
5 Station
Deactivation and
De-Installation
As directed by MTC or a Participating City, Operator must
perform:
(i) Station Deactivation(s);
(ii) Station De-Installation(s);
(iii) Station Re-Installation(s);
(iv) Station Adjustment(s).
(i) Operator will Deactivate a Station within 24 hours
after a request from a Participating City, except in
instances where the continued presence/activity of the
station has been determined to pose a threat to public
safety.
(ii) Operator will complete a De-Installation of a Station
within 72 hours after a request from a Participating City,
except in instances where the continued
presence/activity of the station has been determined to
pose a threat to public safety.
(iii, iv) Deactivated Stations must be reactivated within
24 hours of direction from a Participating City. De-
Installed or Adjusted Stations must be reinstalled or
Readjusted to their original configurations within 72
hours of direction from a Participating City.
Notwithstanding the foregoing, the KPIs for De-
Installation and reinstallations are limited to 20 in any
72-hour period. The time permitted for larger scale De-
Installation and reinstallation will be subject to
agreement between Operator and MTC.
Electronic
communications
(i) $75 for each hour of delay (or
part thereof) beyond 24 hours for
Deactivation.
(ii) $75 for each hour of delay (or
part thereof) beyond 72 hours for
De-Installation.
(iii, iv) $50 for each hour of delay
(or part thereof) beyond 24 hours
for reactivation; $50 for each hour
of delay (or part thereof) beyond
72 hours for reinstallation or
Readjustment.
203193300.19 A-3
KPI
#
Title Definition Measurement
Tool(s)1
Liquidated Damages
6 Program
Functionality
The Program must be operational 100% of the time every
month (i.e., every hour of every day, 24 hours per day, 7
days per week, measured monthly), so that, at a
minimum, all Program users can dock and undock
Bicycles at all times, excluding (i) scheduled downtime,
and (ii) any period when the Computer Hardware for the
Program and/or Software is, and remains, damaged
through Hacking.
Program Functionality does not apply to hardware
malfunctions at individual Stations or to individual
Stations that are not Operable Stations.
Software System If in any month the Program is
operational less than 100% of the
time, then $300 for every hour (or
part thereof) that the Program is
not operational.
7 Station
Operability
Stations, in the aggregate, must be Operable Stations
99% of the time every month (i.e., every hour of every
day, 24 hours per day, 7 days per week, measured
monthly), excluding (i) during scheduled downtime, and
(ii) any period when a Station is not an Operable Station
because the Kiosk or other Equipment located at the
Station has been damaged by third-parties.
Calculated by taking the sum of the number of hours that
each Station was an Operable Station during a month,
dividing that sum by the product of the total number of
hours in the month and the number of Stations that
month.
Station Operability does not apply during any period in
which the entire Program system is down.
Operator records/
databases
If in any month the Stations are not
Operable Stations 99% of the time,
then $100 for every hour that
Stations are not Operable Stations
below the 99% threshold.
203193300.19 A-4
KPI
#
Title Definition Measurement
Tool(s)1
Liquidated Damages
8 Website
Operations
The Program website must be operational 100% of the
time every year (i.e., every hour of every day, 24 hours
per day, 7 days per week, measured annually) excluding
(i) scheduled downtime, and (ii) any period when the
Computer Hardware for the Program and/or Software is,
and remains, damaged through Hacking.
Operator records/
databases
If in any year the website is not
operational 100% of the time, then
$50 for every hour each year that
the website is not operational.
9 Telephone
Answering Time
Not less than 80% of telephone calls to Operator’s call
center each month must be answered by a person within
90 seconds or less.
Operator records/
databases
$100 for every percentage point
below 80% that telephone calls are
not answered in 90 seconds or less
in any month.
10 Email Response
Time
Not less than 95% of emails to Operator’s public
information email address must be answered within 1
business day.
Operator records/
databases
$100 for every percentage point
below 95% that emails are not
answered within 1 business day or
less in any month.
11 Bicycle Availability
This Bicycle Availability requirement is met if the monthly
average Bicycle Fleet Level, recorded once each Day of
the month between the hours of 11:00 AM and 3:00 PM,
is not less than 90% of the Program Fleet.
Damages are calculated as the sum of Bicycles under the
threshold for each Day that the recorded Bicycle Fleet
Level is less than the required Bicycle Fleet Level.
Software System $15 for each Bicycle that is under
the 90% threshold each month.
203193300.19 A-5
KPI
#
Title Definition Measurement
Tool(s)1
Liquidated Damages
12 Rebalancing No station Cluster shall be completely empty of available
bikes for use or completely lacking of empty, operable
docks for more than 10 consecutive minutes during Peak
Hours (i.e., 6:00 am to 10:00 pm).
The Rebalancing KPI set forth above is an interim KPI.
During the Assessment Period (as defined in Section
2.6.2(b) of the Agreement), the Rebalancing KPI will be
assessed and reformulated, and a new Rebalancing KPI
will be fully implemented immediately following the
Assessment Period.
Software System/
Operator records/
databases
$1.00 for each minute that a
Cluster Outage occurs beyond 10
consecutive minutes during Peak
Hours.
Liquidated Damages do not apply
to the Stations installed as part of a
Phase for the first 6 months after
the completion of such Phase.
203193300.19 B-1
Appendix B
Cost of Equipment
PENINSULA PILOT CITIES:
• Cost to upgrade AD Equipment: $12.50 per Dock per month, subject to PPI Adjustment.
• Cost to purchase new Equipment: As set forth in the New Equipment Price Schedule below.
The prices set forth in such schedule are subject to PPI Adjustment.
• Cost to install new Equipment (including site planning and drawings): $4,000 per Station, subject to CPI Adjustment
• Cost to operate and maintain the Equipment: $100 per Dock per month, subject to CPI
Adjustment, and subject to the following reductions: (i) Cost to operate and maintain will be reduced to $75 per Dock per month, subject to
CPI Adjustment, during any 12-month period in which there is an average of 1 Trip
per Bicycle per day for the entire Bicycle Fleet in such Peninsula Pilot City (subject
to Bicycle Availability) (ii) Cost to operate and maintain will be reduced to $50 per Dock per month, subject to
CPI Adjustment, during any 12-month period in which there is an average of 1.5
Trips per Bicycle per day for the entire Bicycle Fleet in such Peninsula Pilot City
(subject to Bicycle Availability)
(iii) Cost is reduced to $0 per dock, adjusted by CPI, if an average of 3 rides per bike
per day citywide occurs for a 12 month period
OTHER ELIGIBLE CITIES:
• Cost to purchase new Equipment: As set forth in the New Equipment Price Schedule below.
The prices set forth in such schedule are subject to PPI Adjustment.
• Cost to install new Equipment (including site planning and drawings): $4,000 per Station,
subject to CPI Adjustment
• Cost to operate and maintain the Equipment: $130 per Dock per month, subject to CPI Adjustment, and subject to the following reductions:
(i) Cost to operate and maintain will be reduced to $97.50 per Dock per month, subject
to CPI Adjustment, during any 12-month period in which there is an average of 1 Trip per Bicycle per day for the entire Bicycle Fleet in such Eligible City (subject
to Bicycle Availability)
203193300.19 B-2
(ii) Cost to operate and maintain will be reduced to $65 per Dock per month, subject to
CPI Adjustment, during any 12-month period in which there is an average of 1.5
Trips per Bicycle per day for the entire Bicycle Fleet in such Eligible City (subject to Bicycle Availability)
(iii) Cost to operate and maintain will be reduced to $0 per Dock per month, subject to
CPI Adjustment, during any 12-month period in which there is an average of 3.0
Trips per Bicycle per day for the entire Bicycle Fleet in such Eligible City (subject to Bicycle Availability)
• If Operator contracts with a private property owner to locate a publicly-accessible Station on private property in the Eligible City, then the cost to operate and maintain the Equipment will be a matter for agreement between Operator and the private property owner.
New Equipment Price Schedule
Station Size (No. of Bicycles)No. of Docks Cost (Excluding Sales Tax)
8 15 47,166.98$
10 19 55,503.56$
12 23 63,840.15$
14 27 72,176.74$
16 31 80,513.33$
18 35 88,849.92$
20 39 97,186.51$
203193300.19 C-1
Appendix C
Reporting Requirements
MTC shall have real-time, read-only access to data as specified in the Functional Specifications.
Operator shall deliver a monthly report, by the 25th day of each month, to MTC, with all of the data
described below, and in a form that is acceptable to, and approved by, MTC for the Program. Except for
financial information, the data shall reflect all relevant facts as they existed with respect to the immediately preceding calendar month (e.g., the June report would reflect the non-financial data for
May), and the reports shall provide cumulative calendar year-to-date totals for each category (as may be
applicable). For all financial information, the data shall reflect all relevant facts as they existed with
respect to the calendar month that immediately precedes the immediately preceding calendar month (e.g.,
the June report would reflect the financial data for April), and the reports shall provide cumulative calendar year-to-date totals for each category (as may be applicable). No more frequently than once every
six months, Operator may request a meeting with MTC to assess the effectiveness of these Reporting
Requirements; upon mutual agreement, the Reporting Requirements below may be adjusted.
1) Membership:
• YTD membership counts at the end of the reporting month, by membership type and Participating City;
• Number of new members by type and Participating City, who signed up during the reporting
month, by day and month; and
• Number of cancellations and expirations of registered members, by type and Participating City, during the reporting month.
2) Ridership:
• “Trip” shall mean the use of a Bicycle from one Station to another Station or back to the initial Station;
• Trips per Day, per Participating City and member type, for the entire Program; and
• Total Trips per month, and YTD per Station, Participating City, and member type, for the entire
Program.
3) Environmental Impact:
• Total and average calories burned per Day/month, by Participating City for the entire Program,
based on calculation using total and average Trip durations; and
• Carbon offset per month, by Participating City and for the entire Program, based on calculation using total hours of usage.
4) Rebalancing Operations:
203193300.19 C-2
• Number of Bicycles rebalanced per Day;
• Bicycles on the street per Day per Participating City;
• List of full and empty instances (Station, start time, end time, and date) in excess of 10 consecutive minutes between 6:00 AM and 10:00 PM;
• Count of full and empty instances per Station and Participating City by Day and month in excess
of 10 consecutive minutes between 6:00 AM and 10:00 PM;
• Breakdown of full and empty instances by duration in excess of 10 consecutive minutes between 6:00 AM and 10:00 PM;
• List of full and empty instances (Station, start time, end time, and date) between 6:00 AM and
10:00 PM at “priority” Stations (to the extent “priority” Stations have been established);
• Count of full and empty instances per Station and Participating City by Day and month between
6:00 AM and 10:00 PM at “priority” Stations (to the extent “priority” Stations have been
established);
• Breakdown of full and empty instances by duration between 6:00 AM and 10:00 PM at “priority” stations (to the extent “priority” stations have been established); and
• Percentage of time Stations are normal, full, or empty.
5) Station Maintenance Operations:
• List of Stations cleaned and dates of each cleaning;
• Number of active Stations;
• List of all Station malfunctions (Station, start and end date and time, and event); and
• Percentage of time Stations were available to provide rentals for monthly and annual members by Station and for the entire Program.
6) Bicycle Maintenance Operations:
• Count of Bicycles checked per month;
• Count of Bicycles repaired per month;
• List of Bicycles by unique ID number not checked per month.
7) Incident Reporting:
• List of all incidents (crash, vandalism, theft, and police action) with dates and summary of outcomes.
203193300.19 C-3
8) Customer Service Reporting:
• Number of calls and emails, with total and broken down by classification;
• Average time to answer call;
• Average time of call;
• Number of refunds and amount given per month; and
• Upon call center software availability, number of calls of different types of issues, and average length of call.
9) Customer Outreach:
• Web site analytics.
10) Financial Summary:
• Fees assessed to bike share users due to lost or damaged bicycles;
• Revenue generated from subscriptions, by subscription type;
• Revenue generated from usage fees, by subscription type; and
• Revenue generated from other sources, including Advertising and Sponsorships.
11) Compliance with KPIs:
• Recorded Bicycle Fleet Level for each day as recorded between the hours of 11:00 AM and 3:00 PM.
203193300.19 D-1
Appendix D
Functional Specifications
Functional Specification
Software
Billing
Product requirements
Annual and casual billing
Usage charges billing
Discounts
Refunds
Administrative and stolen bike charges
Automatic renewal of accounts
Opt-in/Opt-out ability for automatic renewal
Allow Annual Members to use Clipper Card to access Bicycles in lieu of key fob2
Automatic emails to customers
Ability to edit text in emails to customers
Automatic emails in the following instances:
Upon successful renewal
Upon signup
Upon failed monthly payment
Upon successful monthly payment
Upon credit card change
Upon credit card expiration
Upon account renewal needed (manual billing)
Upon upcoming automatic account renewal (automatic billing)
Upon successfully account renewal
Upon failed account renewal
Upon successful bike return (user configurable)
Upon missing bike (user and system configurable)
Upon incurrence of overage fees
Upon system shut down
PCI Compliance
PCI Compliance of Bike Share Operator and System
Remote functionality
Ability to shut down system (prevent bikes from being rented)
Ability to lock down bikes (with visual indicator)
Ability to shut down stations
Ability to reboot remotely (when connected)
Operational Dashboards (The following dashboards should be available at a minimum)
2To be achieved by the later of 20 months after the Effective Date and completion of Phase IV.
203193300.19 D-2
Subscriptions
Number of casual users by subscription type
Number of members by subscription type
Customer rental activity
Number of open rentals and duration of rental
Number of trips and rentals completed by casual and registered members
Real-Time Dashboards
Station status (total, working, out of order, locked, disconnected)
Station occupancy (current and recent history of station bike/dock occupancy)
Docking point status (total, locked, error, empty, bike docked)
Bike status (docked, in rental, defective, other)
Private data feed
MTC to have access to analytical/reporting databases provided by bikeshare
system.
Public data feed
All public data feeds should cover the following at a minimum:
Station Name
Station ID
Station Status (locked/unlocked)
Latitude
Longitude
# of total docking points
# of available docking points
# of inoperable docks (w/ and w/o bikes)
# of available bikes
Last communication time with server
Excludes test/warehouse station
Product support and redundancy
Features for product support include
System redundancy
Real-time database backups
Development and QA will be done separate from the production
environment
Software escrow
A third-party software escrow with the latest major software release must be
maintained at all times
Hardware
Docking mechanism
Subscriber can unlock a bike (e.g., via a valid key or card)
Locking mechanism that opens within configurable number of seconds
Locking mechanism that closes immediately with moderate docking force
Defaults to unlocked/open when bike is not present
Functional user lock-down capability ("wrench button") with permanent visual
203193300.19 D-3
indicator
Visual and audible indication of successful, failed, or in-progress transaction
Bike
Step through design
Hold someone up to 240 pounds
Can lock and unlock securely
Bell
Front and rear flashing lights when bike is moving; stay illuminated for 60 seconds
after bike stops
Reflective sidewalls on tires
Within range, an infinitely adjustable seat height with ergonomic lever/tension
adjustment and high-contrast height markings
Carrier not susceptible to trash accumulation
Wheels greater than or equal to 26" in diameter
Fenders for front and rear wheels
Front and rear hand brakes
Multiple speed drivetrain
Scratch- and graffiti-resistant frame finish
Reflectors on pedals, spokes, and front and rear of bike
Rubber tread on pedals
Room for safety messaging on handlebar and front cockpit
Tamper-resistant hardware (including hidden cables and custom wrench fittings)
Chain guard
Kiosk station
Short-term user can unlock one or multiple bikes (e.g., via valid ride code or key).
Casual users can use single credit card to rent up to 4 bikes
Hibernation stage
Vandal resistant, replaceable screens
Nearby station functionality
Multiple languages
203193300.19
Attachment A
Agreement to Continue Pilot Bike Share Program
203215669.16
ATTACHMENT A
AGREEMENT TO CONTINUE PILOT BIKE SHARE PROGRAM
by and between
BAY AREA MOTIVATE, LLC
and
METROPOLITAN TRANSPORTATION COMMISSION
203215669.16 1
Table of Contents
RECITALS ..................................................................................................................................... 3
ARTICLE I SCOPE OF SERVICES; TERM ........................................................................... 3
ARTICLE II REVENUES; USER FEES; AND OPERATING EXPENSES ......................... 4
ARTICLE III EMPLOYEE AND EMPLOYMENT MATTERS ............................................ 5
ARTICLE IV OWNERSHIP AND PROPRIETARY RIGHTS .............................................. 7
ARTICLE V TERMINATION .................................................................................................... 7
ARTICLE VI DISPUTE RESOLUTION ................................................................................... 8
ARTICLE VII INSURANCE....................................................................................................... 8
ARTICLE VIII INDEMNIFICATION AND LIMITATION OF LIABILITY .................... 12
ARTICLE IX THIRD PARTY BENEFICIARIES ................................................................. 13
ARTICLE X MISCELLANEOUS ............................................................................................ 13
ARTICLE XI DEFINITIONS ................................................................................................... 17
Attachment A-1, Description of Services ..................................................................................... 21
Attachment A-2, Subscriber Related Fees .................................................................................... 28
Attachment A-3, New Subscriber-Related Fees ........................................................................... 30
203215669.16 2
ATTACHMENT A
AGREEMENT TO CONTINUE PILOT BIKE SHARE PROGRAM
THIS AGREEMENT TO CONTINUE THE PILOT BIKE SHARE PROGRAM (this
“Continuation Agreement”), has an effective date (the “Effective Date”) that is the same as the effective date of the BAY AREA BIKE SHARE PROGRAM AGREEMENT, to which this Continuation Agreement is attached (the “Program Agreement”), by and between the
METROPOLITAN TRANSPORTATION COMMISSION, a California public agency
established pursuant California Government Code § 66500 et seq., having an office at 101 Eighth
Street, Oakland, California (“MTC”), and BAY AREA MOTIVATE, LLC, a Delaware limited liability company, having any office at 5202 Third Avenue, Brooklyn, New York 11220, as Operator of the Bay Area Bike Share Program (“Operator”).
RECITALS
WHEREAS, Alta Bicycle Share, Inc., an Oregon corporation (“Alta”), and Bay Area Air
Quality Management District, a California special district (the “Air District”), entered into a Bike
Share Program Agreement having an effective date of February 6, 2013 (the “Pilot Program Agreement”), pursuant to which Operator operated a pilot bike sharing program (the “Pilot Program”) in the cities of San Jose, Palo Alto, Mountain View, Redwood City and San Francisco
(each, a “Pilot City” and collectively, the “Pilot Cities”);
WHEREAS, on the date hereof, (a) the Air District and Motivate International, Inc.,
formerly known as Alta (“Motivate”), terminated the Pilot Program Agreement, (b) the Air District and MTC agreed to the conveyance of all of the Air District’s right, title and interest in and to the tangible and intangible property acquired or developed in connection with the Pilot
Program from the Air District to MTC, and (c) MTC and Operator agreed to the conveyance of
all of MTC’s right, title and interest in and to the tangible property acquired or developed in
connection with the Pilot Program (the “Pilot Program Property”) from MTC to Operator ;
WHEREAS, the Parties have agreed that Operator will continue to operate the Pilot Program in the Pilot Cities using the Pilot Program Property; and
WHEREAS, capitalized terms not otherwise defined when they first appear in this
Continuation Agreement are defined in Article XI.
NOW, THEREFORE, in consideration of the foregoing clauses, which clauses are hereby made a part of this Continuation Agreement, and the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Parties do hereby covenant and agree as follows:
ARTICLE I
PURCHASE OF PILOT PROGRAM PROPERTY; SERVICES; TERM
1.1 Purchase of Pilot Program Property. On the Effective Date, Operator shall purchase the Pilot Program Property for the purchase price agreed to among Operator, MTC and
203215669.16 3
the Air District, and Operator shall remit payment of the purchase price to MTC not later than
the 15th day after the Effective Date.
1.2 Services. Operator shall, during the Term (as defined in Section 1.3), operate and
maintain in the Pilot Cities a bike share system that was originally established under the Pilot Program Agreement (the “System”). Operator shall (a) utilize the Sites being used as of the Effective Date from the Pilot Program as well as the Bicycles, Docks, Technical Platforms, Map
Frames, Terminals and other Equipment existing as of the Effective Date from the Pilot Program,
and Operator shall not be obligated to purchase any Equipment, new or otherwise, that was not
Pilot Program Property; (b) subject to Events of Force Majeure, provide the specific services set forth in this Continuation Agreement; (c) provide all technical expertise and qualified personnel to operate the System safely and competently; and (d) correct defective or non-conforming
services. All services shall be performed in compliance with this Continuation Agreement and
shall be carried out in strict compliance with all applicable federal, state and local laws and
regulations.
1.3 Term. This Continuation Agreement shall commence on the Effective Date and
shall end (a) for Mountain View, Palo Alto and Redwood City, on June 30, 2016, and (b) for San
Francisco and San Jose, upon installation of 75% of the Phase I Stations located in San
Francisco and San Jose. Notwithstanding the foregoing, if MTC terminates the Program
Agreement pursuant to the second to last sentence of Section 3.4.1 of the Program Agreement, then this Continuation Agreement shall terminate at the same time the Program Agreement
terminates, and Sections 5.1D, 5.5 and 5.6 shall apply. The bike share program to be
implemented under the Program Agreement is referred to as the “BABS Program.”
ARTICLE II
REVENUES; USER FEES; AND OPERATING EXPENSES
2.1 Revenues. Operator shall be entitled to collect and retain all System Operating
Revenues.
2.2 User Fees. From the Effective Date to June 30, 2016, user fees shall be consistent
with the fee schedule set forth in Attachment A-2. After June 30, 2016, Operator shall have the
right to institute the fee schedule set forth in Attachment A-3.
2.3 Operating Expenses.
2.3.1 San Francisco and San Jose. Subject to Section 2.3.3, Operator shall be
responsible for paying the expenses of operating and maintaining the System in San Francisco
and San Jose.
2.3.2 Mountain View, Palo Alto and Redwood City. Subject to Section 2.3.3, from the Effective Date through December 31, 2015, Operator shall be responsible for paying the
expenses of operating and maintaining the System in Mountain View, Palo Alto and Redwood
City. From January 1, 2016 to the end of the Term, MTC shall pay to Operator $100 per Dock
per month for Mountain View, Palo Alto and Redwood City to cover Operating Expenses in
those cities.
203215669.16 4
2.3.3 MTC Payment. Subject to the last sentence of this paragraph, MTC shall
cover 50% of Operator’s (and Motivate’s) Operating Losses for the period commencing August
29, 2015 and ending on the earlier of the Effective Date and December 31, 2015 (the “Covered
Period”). Within 30 days after the end of the Covered Period, Operator shall send MTC a statement setting forth Operator’s (or Motivate’s) Operating Losses, if any, for the Covered
Period accompanied by reasonable back-up. Notwithstanding the existence of Operator’s (or
Motivate’s) Operating Losses for any particular month, MTC’s obligation under this Section
2.3.3. shall apply only to Operator’s (and Motivate’s) cumulative Operating Losses over the
entire Covered Period. MTC shall pay Operator for any such cumulative Operating Losses within 30 days following Operator’s submission of its statement for the Covered Period. MTC’s
payment obligation under this paragraph is capped at $100,000.
2.4 Taxes, Dues, and Fees. Operator shall pay all applicable federal, state, and local
taxes assessed against, arising out of, and collected from the service operation, including sales,
use, license, and/or privilege taxes. Operator shall at all times maintain records evidencing revenue and the taxes collected as are required to substantiate the correctness of the tax returns filed.
2.5 No Tax Exemption. No provision of this Continuation Agreement shall be
construed to provide Operator or any of its subcontractors with an exemption, exclusion,
deferral, offset or other relief from any assessment, tax, levy, or penalty which is now or which may be hereafter authorized by law.
2.6 Covenant Against Contingent Fees. Operator warrants that it has not employed or
retained any company or person, other than a bona fide employee working for Operator, to solicit
or secure this Continuation Agreement and that it has not paid or agreed to pay any company or
person other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award, or formation of this Continuation Agreement. For breach or violation of this warranty, MTC shall have the right to
annul this Continuation Agreement without liability, or, at its discretion, to deduct from the
agreement price or consideration, or otherwise recover, the full amount of such fee, commission,
percentage, brokerage fee, gift, or contingent fee.
2.7 Liquidated Damages. Subject to Events of Force Majeure, the failure of Operator
to achieve the service levels described in Section 3 of Attachment A-1 will result in liquidated
damages but only if such failure relates to a service level described in such Section 3 for which
there is a corresponding “Key Performance Indicator” in Appendix A of the Program Agreement.
Operator will have no liability for a failure to achieve a service level described in such Section 3 for which there is no corresponding “Key Performance Indicator” in Appendix A of the Program Agreement. Liquidated damages will be assessed at half of the rate set forth in Appendix A of
the Program Agreement. MTC shall notify Operator on a monthly basis of any such failures and
the corresponding liquidated damages, but payment of such liquidated damages shall not be due
until the completion of Phase I.
203215669.16 5
ARTICLE III
EMPLOYEE AND EMPLOYMENT MATTERS
3.1 Project Manager. Each Party shall appoint a project manager to act, except as
otherwise specified in this Continuation Agreement, as the primary contact person for purposes of this Continuation Agreement. The provision by Operator of services to operate and maintain the System is subject at all times to inspection and review by MTC Project Manager.
3.2 Fairness Policy. No employee of MTC shall be admitted to any share or part of
this Continuation Agreement or to any benefit that may arise therefrom that is not available to
the general public.
3.3 Employment Discrimination by Operator Prohibited. During the performance of
this Continuation Agreement, Operator agrees as follows:
A. Operator shall not discriminate against any employee or applicant for
employment because of race, religion, color, sex, national origin, age,
disability or any other basis prohibited by state law related to discrimination in employment except where there is a bona fide occupational qualification reasonably necessary to the normal operation of Operator. Operator agrees to
post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provisions of this nondiscrimination
clause.
B. Operator, in all solicitations or advertisements for employees placed by or on behalf of Operator, will state that Operator is an Equal Opportunity Employer.
C. Notices, advertisements, and solicitations placed in accordance with federal
law, rule, or regulation shall be deemed sufficient for the purpose of meeting
the requirements of this Section 3.3.
D. Operator will comply with the provisions of the Americans with Disabilities Act of 1990 which prohibits discrimination against individuals with
disabilities in employment and mandates their full participation in both
publicly and privately provided services and activities.
E. Operator shall not discriminate against any customer, prospective customer, employee or prospective employee because of race, color, sex, age, religion, or country of origin.
3.4 General Compliance with Laws and Wage Rates. Operator will comply with all
federal, state, and local laws and ordinances applicable to the provision of services to operate and
maintain the System. This includes compliance with prevailing wage rates and their payment in accordance with California Labor Code section 1775, to the extent applicable.
3.5 Supervision by Operator. Operator shall at all times require strict discipline and
good order among Operator’s employees and all subcontractors providing any of the services
required hereunder. Operator shall not permit, and shall require all subcontractors not to permit,
203215669.16 6
any employee or other person to provide any service required hereunder unless such employee or
other person has demonstrated proficiency in the type of work which such employee or other
person is assigned to perform.
3.6 Non-Discrimination. During the performance of this Continuation Agreement, Operator and its subcontractors shall not unlawfully discriminate, harass, or allow harassment
against any employee or applicant for employment because of sex, race, color, ancestry, religious
creed, national origin, physical disability (including HIV and AIDS), mental disability, medical
condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Operator
and subcontractors shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Operator and
subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov.
Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California
Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair
Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated
into this Continuation Agreement by reference and made a part hereof as if set forth in full.
Operator and its subcontractors shall give written notice of their obligations under this clause to
labor organizations with which they have a collective bargaining or other Agreement.
3.7 Subcontractors Restrictions. Operator shall only enter into subcontracts with subcontractors that have clearly demonstrated proficiency in the tasks which are the subject of
such subcontracts. Operator is prohibited from hiring or subcontracting with any individuals that
participated in the selection of Operator or the development of this Continuation Agreement for a
period of 24 months from the date of execution of this Continuation Agreement.
ARTICLE IV OWNERSHIP AND PROPRIETARY RIGHTS
4.1 Rights, Authorizations, Licenses, Permits, and Other Permissions. Except as
explicitly set forth in Attachment A-1, Operator shall, at its sole cost and expense, obtain all
rights, authorizations, licenses, permits, and other permissions, from all federal, state, and local
governments, and other entities or persons, necessary for Operator to provide the services required under this Continuation Agreement. MTC’s execution of this Continuation Agreement shall neither constitute nor be deemed to be governmental approval of, or consent to, any rights,
authorizations, licenses, permits, and permissions required or needed to be obtained by Operator.
4.2 Use of Seals, Logos, Servicemarks, Trademarks, and Copyrighted Material.
Operator shall not use, display, or reproduce the seal, logo, servicemark, trademark, or copyrighted material of the Air District, MTC or any Pilot City without the prior express written
authorization of the Air District, MTC or any Pilot City, as applicable.
4.3 Third Party Intellectual Property. Operator covenants to save, defend, hold
harmless, and indemnify MTC and the Pilot Cities, and all of their officers, officials,
departments, agencies, agents, and employees from and against any and all claims, losses, damages, injuries, fines, penalties, costs (including court costs and attorney's fees), charges, liability, or exposure, however caused, for or on account of any trademark, copyright, patented or
203215669.16 7
unpatented invention, process, or article manufactured, supplied, or used in the performance of
this Continuation Agreement, including its use by MTC or any Pilot City.
ARTICLE V
TERMINATION
5.1 Termination.
A. Right of MTC to Terminate. MTC shall have the right to terminate this
Continuation Agreement if Operator fails to provide the services required
hereunder satisfactorily or if Operator breaches any term, condition, or
covenants of any of this Continuation Agreement.
B. Failure or Breach. If Operator fails to provide the services required hereunder
satisfactorily or if Operator breaches any term, condition, or covenants of any
of this Continuation Agreement, then MTC will give Operator written notice
of such failure or breach and 30 days to cure such failure or breach. If
Operator fails to cure such failure or breach by the expiration of such 30-day period, then MTC shall have the right to give Operator a written notice of
termination, including the date when the termination shall be effective (the
“Termination Effective Date”).
C. Operator’s Contest. If Operator in good faith contests any such failure or
breach, then such termination shall be suspended pending the outcome of such contest.
D. Termination of Program Agreement. If the Program Agreement terminates
for any reason prior to completion of Phase I under the Program Agreement,
then this Continuation Agreement shall terminate concurrently, and Sections
5.5 and 5.6 shall apply.
5.2 Stop Work. Unless otherwise directed in writing by MTC, Operator shall stop
providing services as of the Termination Effective Date, terminate all vendors and subcontractors
effective as of the Termination Effective Date, and settle all outstanding liabilities and claims.
5.3 Compensation. Operator will be entitled to receive compensation as provided in
Article II to the Termination Effective Date.
5.4 Sole Remedies. Notwithstanding anything to the contrary herein, other than
liquidated damages under Section 2.7, the sole remedy of MTC and the Pilot Cities against
Operator for breach of this Continuation Agreement, excluding a breach of Article VIII, or for
failure to provide the services satisfactorily, is to terminate this Continuation Agreement in
accordance with Article VII. Except for liquidated damages under Section 2.7, in no event shall Operator be liable for damages of any kind for breach of this Continuation Agreement, other than a breach Article VIII, or for failure to provide the services satisfactorily.
5.5 Transition. Upon termination of this Continuation Agreement pursuant to Section
5.1D, Operator shall comply with the following close-out procedures:
203215669.16 8
5.5.1 Turning over to MTC or its designees copies of all books, records,
documents and materials specifically relating to this Continuation Agreement and reasonably
requested by MTC;
5.5.2 Submitting to MTC, within 120 days, a final statement and report relating to this Continuation Agreement that has been reviewed by a certified public accountant or a licensed public accountant;
5.5.3 Providing reasonable assistance to MTC during the transition; and
5.5.4 Continuing to operate the System in accordance with the terms of this
Continuation Agreement and to effect an efficient and orderly transition of responsibility with respect to the operation of the System until the earlier of (i) 180 days after such termination and (ii) the selection of a replacement operator for the System and such replacement operator
commencing operation of the System (such earlier date being the “Transition Termination
Date”); provided, however, that MTC shall cover 100% of Operator’s Operating Losses for the
period commencing upon termination of this Continuation Agreement and ending on the Transition Termination Date (such period being the “Transition Period”), subject to an aggregate cap for the Transition Period equal to the product of (X) the number of months of the
Transition Period, (Y) $20 for each Dock, and (Z) the number of Docks. Within 30 days after
the end of each month during the Transition Period, Operator shall send MTC a statement setting
forth Operator’s Operating Losses, if any, for the preceding month accompanied by reasonable back-up. MTC shall pay Operator for any such monthly Operating Losses within 30 days following Operator’s submission of its statement for such month, subject to a cap calculated on
a monthly basis equal to $20 for each Dock. Within 60 days following the end of the Transition
Period, the Parties shall reconcile Operator’s cumulative Operating Losses for the entire
Transition Period with Operator’s monthly, non-cumulative Operating Losses for the entire Transition Period, and shall also reconcile the aforementioned aggregate cap applied to the cumulative Operating Losses for the entire Transition Period with the aforementioned monthly
cap applied to the monthly Operating Losses for the entire Transition Period. If the payment for
Operating Losses received by Operator from MTC on a monthly basis exceeds the payment for
Operating Losses to which Operator is entitled from MTC on an aggregate basis, then Operator shall reimburse MTC for the difference between the two calculations within 30 days following such calculation; and if the payment for Operating Losses received by Operator from MTC on a
monthly basis is less than the payment for Operating Losses to which Operator is entitled from
MTC on an aggregate basis, then MTC shall pay Operator the difference between the two
calculations within 30 days following such calculation.
5.6 Disposition of the Equipment. Upon termination of this Continuation Agreement
pursuant to Section 5.1D, MTC shall have the option to:
5.6.1 require Operator to remove all Equipment at its sole cost and expense;
5.6.2 subject to satisfaction of the Equipment Assignment Conditions, require
Operator to assign to MTC (or a third-party operator designated by MTC) the Equipment, in which event Operator shall reasonably cooperate with MTC (or such designee) to obtain the legal right to use the Backend Software and Computer Hardware either through an assignment of
203215669.16 9
Operator’s license with the vendor thereof to MTC (or such designee) or by MTC (or such
designee) entering a license agreement for Backend Software and Computer Hardware with such
vendor; or
5.6.3 subject to satisfaction of the Equipment Assignment Conditions, take over operation of the System, and in connection therewith require Operator to assign to MTC the Equipment, in which event Operator shall reasonably cooperate with MTC to obtain the legal
right to use the Backend Software and Computer Hardware either through an assignment of
Operator’s license with the vendor thereof to MTC or by MTC entering a license agreement for
Backend Software and Computer Hardware with such vendor.
ARTICLE VI DISPUTE RESOLUTION
6.1 In the event of a dispute between the Parties, such dispute shall be addressed and
resolved in accordance with the following (the “Dispute Resolution Process”):
6.1.1 The MTC Project Manager assigned to the System and Operator’s General
Manager of the System, or their respective delegates, shall meet, within 10 days after receipt by
one Party of notification from the other Party of such dispute, to negotiate in good faith in order
to try to resolve such dispute (the date of the first such meeting, or the expiration of such 10-day
period if the meeting is not timely held, being the “Initial Meeting Date”). If such persons fail to resolve such dispute within 15 days after the Initial Meeting Date, then the Executive Director of
MTC and the President of Bikeshare Holdings shall meet promptly and negotiate in good faith in
order to resolve such dispute. If such persons fail to resolve such dispute within 30 business days
after the Initial Meeting Date, then such dispute shall be subject to mediation. A meeting may be
held in person, by conference call or by video conference. By agreement of the Parties, any of the deadlines set forth in this section may be extended or shortened. The process described in this
section shall be confidential and treated as a compromise negotiation for purposes of federal and
state rules of evidence.
6.1.2 Unless the Parties otherwise agree, mediation shall be administered by the
American Arbitration Association (the “AAA”) in accordance with its Commercial Rules, or similar service. A request for mediation shall be made in writing, delivered to the other Party and
filed with the applicable mediation service. Either Party may submit such request. The Parties
shall share the mediator’s fee and any filing fees equally. The mediation shall be held in San
Francisco. The Parties shall be represented by individuals of their choosing. Agreements
reached in mediation shall be binding on the Parties and enforceable in a State or Federal Court of competent jurisdiction sitting in San Francisco County. The mediation process shall be
confidential and treated as a compromise negotiation for purposes of federal and state rules of
evidence.
6.1.3 The Parties shall comply with any settlement agreement regarding any
dispute that is the subject of a settlement agreement.
203215669.16 10
6.1.4 If mediation fails to resolve a dispute, then the exclusive forum for
resolving such dispute shall be any State or federal court sitting in San Francisco County,
California.
6.1.5 As used in this Continuation Agreement, “final resolution” of a dispute or a dispute being “finally resolved” means that (a) the Parties have entered into a settlement agreement to resolve such dispute, or (b) if either Party has initiated a judicial proceeding to
contest such dispute, that a final-non-appealable order of a court of competent jurisdiction has
been issued for such dispute.
ARTICLE VII INSURANCE
7.1 Minimum Coverages. The insurance requirements specified in this section shall
cover Operator’s own liability and the liability arising out of work or services performed under
this Continuation Agreement by any subconsultants, subcontractors, suppliers, temporary
workers, independent contractors, leased employees, or any other persons, firms or corporations that Operator authorizes to work under this Continuation Agreement (hereinafter referred to as
“Agents”). Operator shall, at its own expense, obtain and maintain in effect at all times during
the life of this Continuation Agreement the following types of insurance against claims, damages
and losses due to injuries to persons or damage to property or other losses that may arise in
connection with the performance of work under this Continuation Agreement.
7.2 Operator shall include in every subcontract the requirement that the Agent
maintain adequate insurance coverage with appropriate limits and endorsements to cover the
risks associated with work to be performed by the Agent. To the extent that an Agent does not
procure and maintain such insurance coverage, Operator shall be responsible for any and all
costs and expenses that may be incurred in securing such coverage or in fulfilling Operator’s indemnity obligation under Article VIII as to itself or any of its Agents in the absence of such
coverage.
7.3 In the event Operator or its Agents procure excess or umbrella coverage to
maintain certain requirements outlined below, these policies shall also satisfy all specified
endorsements and stipulations, including provisions that Operator’s or its Agent’s insurance, as the case may be, be primary without right of contribution from MTC.
7.3.1 Workers' Compensation Insurance with Statutory limits, and Employer’s
Liability Insurance with a limit of not less than $1,000,000 per employee for injury by disease
and $1,000,000 for injury for each accident, and any and all other coverage of Operator’s
employees as may be required by applicable law. Such policy shall contain a Waiver of Subrogation in favor of MTC. Such Workers’ Compensation & Employer’s Liability may be
waived, if and only for as long as Operator is a sole proprietor or a corporation with stock 100%
owned by officers with no employees.
7.3.2 Commercial General Liability Insurance for Bodily Injury and Property
Damage liability, covering the operations of Operator and Operator’s officers, agents, and employees and with limits of liability which shall not be less than $1,000,000 combined single
203215669.16 11
limit per occurrence with a general aggregate liability of not less than $2,000,000, and Personal
& Advertising Injury liability with a limit of not less than $1,000,000. Such policy shall contain
a Waiver of Subrogation in favor of MTC. MTC and its commissioners, directors, officers,
representatives, agents and employees are to be named as additional insureds. In addition, the entities listed in Section 7.13 and their respective commissioners, directors, officers, representatives, agents and employees are also to be named as additional insureds. Such
insurance shall be primary and contain a Separation of Insureds Clause as respects any claims,
losses or liability arising directly or indirectly from Operator’s operations.
7.3.3 Business Automobile Insurance for all automobiles owned (if any), used or maintained by Operator and Operator’s officers, agents and employees, including but not limited to owned (if any), leased (if any), non-owned and hired automobiles, with limits of
liability which shall not be less than $1,000,000 combined single limit per accident.
7.3.4 Umbrella Insurance in the amount of $4,000,000 providing excess limits
over Employer’s Liability, Automobile Liability, and Commercial General Liability Insurance. Such umbrella coverage shall be following form to underlying coverage including all endorsements and additional insured requirements.
7.3.5 Errors and Omissions Professional Liability Insurance for errors and
omissions and the resulting damages, including, but not limited to, economic loss to MTC and
having minimum limits of $5,000,000 per claim. Such policy shall contain cyber risk coverages including network and internet security liability coverage, privacy liability coverage and media coverage. The policy shall provide coverage for all work performed by Operator and any work
performed or conducted by any subcontractor/consultant working for or performing services on
behalf of Operator. Operator may delegate the obligation to maintain Errors and Omissions
Professional Liability Insurance to an Agent, but the failure of such Agent to maintain such insurance shall not relieve Operator of its obligation to maintain such insurance.
7.3.6 Property Insurance. Property Insurance covering Operator’s own
business personal property and equipment to be used in performance of this Continuation
Agreement, materials or property to be purchased and/or installed on behalf of MTC (if any), and
builders risk for property in the course of construction (if applicable). Coverage shall be written on a "Special Form" policy that includes theft, but excludes earthquake, with limits at least equal to the replacement cost of the property. Such policy shall contain a Waiver of Subrogation in
favor of MTC.
7.4 Acceptable Insurers. All policies will be issued by insurers qualified to do
business in California and with a Best’s Rating of A-VIII or better.
7.5 Self-Insurance. Operator’s obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance, upon evidence of financial capacity satisfactory to
MTC.
7.6 Deductibles and Retentions. Operator shall be responsible for payment of any
deductible or retention on Operator’s policies without right of contribution from MTC. Deductible and retention provisions shall not contain any restrictions as to how or by whom the
203215669.16 12
deductible or retention is paid. Any deductible or retention provision limiting payment to the
Named Insured is unacceptable.
7.7 In the event that MTC is entitled to coverage as an additional insured under any
Operator insurance policy that contains a deductible or self-insured retention, Operator shall satisfy such deductible or self-insured retention to the extent of loss covered by such policy, for any lawsuit arising from or connected with any alleged act of Operator, subconsultant,
subcontractor, or any of their employees, officers or directors, even if Operator or subconsultant
is not a named defendant in the lawsuit.
7.8 Claims Made Coverage. If any insurance specified above is written on a “Claims-Made” (rather than an “occurrence”) basis, then in addition to the coverage requirements above, Operator shall:
7.8.1 Ensure that the Retroactive Date is shown on the policy, and such date
must be before the date of this Continuation Agreement or the beginning of any work under this
Continuation Agreement;
7.8.2 Maintain and provide evidence of similar insurance for at least three (3) years following the expiration or termination of this Continuation Agreement, including the
requirement of adding all additional insureds; and
7.8.3 If insurance is cancelled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date to Effective Date, Operator shall purchase “extended reporting” coverage for a minimum of three (3) years after the expiration or termination of this Continuation Agreement.
7.9 Failure to Maintain Insurance. All insurance specified above shall remain in force
until the expiration or termination of this Continuation Agreement. Operator must notify MTC if
any of the above required coverages are non-renewed or cancelled. The failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Continuation Agreement.
7.10 Certificates of Insurance. On the Effective Date, Operator shall deliver to MTC
Certificates of Insurance verifying the aforementioned coverages. Such certificates shall make
reference to all provisions and endorsements referred to above and shall be signed on behalf of the insurer by an authorized representative thereof.
7.11 Disclaimer. The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Operator are not intended to and shall not in any manner limit or
qualify the liabilities and obligations otherwise assumed by Operator pursuant hereto, including,
but not limited to, liability assumed pursuant to Article VIII.
7.12 Additional Insureds. The following entities are to be named as Additional Insureds under applicable sections of this Article VII and as Indemnified Parties pursuant to
Article VIII of this Continuation Agreement.
7.12.1 Metropolitan Transportation Commission (MTC)
203215669.16 13
7.12.2 City of Mountain View
7.12.3 City of Palo Alto
7.12.4 City of Redwood City
7.12.5 City of San Francisco
7.12.6 City of San Jose
ARTICLE VIII INDEMNIFICATION AND LIMITATION OF LIABILITY
8.1 Indemnification. Operator shall defend, indemnify and save harmless MTC, the
Pilot Cities, and their respective commissioners, officers, agencies, departments, agents, and employees (collectively, “Indemnified Parties”) from and against any and all claims, demands, causes of action, proceedings or lawsuits brought by third-parties (“Claims”), and all losses,
damages, liabilities, penalties, fines, forfeitures, costs and expenses arising from or incidental to
any Claims (including attorneys’ fees and other costs of defense) (collectively, with Claims,
“Liabilities”), resulting from, or arising out of, the operation of the System and the provision of services, including the condition of the Bicycles or other Equipment, whether such operation or services is performed or provided by Operator or by Operator’s subcontractors or any other
person acting for or on behalf of Operator.
8.2 Exclusions. Notwithstanding the foregoing, the following shall be excluded from
Operator’s indemnification and defense obligations contained in the preceding sentence: any Liabilities to the extent resulting from, or arising out of, (i) the gross negligence or willful misconduct of any Indemnified Party, (ii) Operator complying with the written directives or
written requirements of a Pilot City, if the Operator has previously objected to such written
directives or requirements in writing, with respect to (A) the location or configuration of any
Station in relation to the street or sidewalk on which such Station is located or to which it adjoins or (B) a Pilot City’s Street Treatment Requirements, or (iii) the condition of any public property
outside of the perimeter of a Station and not otherwise controlled by Operator. The exclusion in
clause (iii) does not include the condition of the Bicycles or other Equipment. In addition, if any
Claim against Operator includes claims that are covered by clause (iii) of the preceding sentence
or claims contesting a Pilot City’s authority to issue a permit for a Station, then each Party shall be responsible for its own defense against such claims.
8.3 Notice. Upon receipt by any Indemnified Party of actual notice a Claim to which
such Indemnified Party is entitled to indemnification in accordance with Section 8.1, such
Indemnified Party shall give prompt notice of such Claim to Operator. Operator shall assume
and prosecute the defense of such Claim at the sole cost and expense of Operator. Operator may settle any such Claim in its discretion so long as such settlement includes an unconditional release of the Indemnified Party.
203215669.16 14
ARTICLE IX THIRD PARTY BENEFICIARIES
9.1 Third-Party Beneficiaries Under This Continuation Agreement. Except as
provided in Sections 7.13, 8.1, 8.2 and 8.3, this Continuation Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the signatories to this Continuation Agreement.
ARTICLE X
MISCELLANEOUS
10.1 Governing Law. This Continuation Agreement shall be governed exclusively by
the internal laws of the United States and of the State of California applicable to contracts made,
accepted and performed wholly within said State, without regard to application of principles of
conflict of laws. Any claim, suit or action arising under or relating to this Continuation
Agreement must be brought only in courts located in San Francisco, California. The Parties hereby agree that such courts shall have exclusive personal and subject matter jurisdiction over
any such claim, suit or action.
10.2 Survival. All provisions of this Continuation Agreement that by their terms
survive the expiration or any termination of this Continuation Agreement, together with all other
provisions of this Continuation Agreement that may be reasonably construed as surviving the expiration or any termination of this Continuation Agreement, shall survive the expiration or any
termination of this Continuation Agreement.
10.3 Notices. Except as otherwise provided herein, all notices, requests, demands and
other communications which are required or may be given under this Continuation Agreement
shall be provided in the manner set forth in this section. Notice to a Party shall be delivered to the attention of the person listed below, or to such other person or persons as may hereafter be
designated by that Party in writing. Notice shall be in writing sent by e-mail, facsimile, or
regular first class mail. In the case of e-mail and facsimile communications, valid notice shall be
deemed to have been delivered upon sending, provided the sender obtained an electronic
confirmation of delivery. E-mail and facsimile communications shall be deemed to have been received on the date of such transmission, provided such date was a business day and delivered
prior to 4:00 p.m. PST. Otherwise, receipt of e-mail and facsimile communications shall be
deemed to have occurred on the following business day. In the case of regular mail notice,
notice shall be deemed to have been delivered on the mailing date and received five business
days after the date of mailing.
If to MTC:
Metropolitan Transportation Commission
Joseph P. Bort MetroCenter,
Oakland, CA 94607-470
Attention: Executive Director Email: SHeminger@mtc.ca.gov
203215669.16 15
Attention: General Counsel:
Email: AWeil@mtc.ca.gov
Attention: Designated Representative
Email: KMulder@mtc.ca.gov
If to Operator:
Bay Area Motivate, LLC
5202 Third Avenue
Brooklyn, New York 11220
Attention: Jay Walder, President and CEO Email: jaywalder@motivateco.com
Attention: Justine Lee, Vice President and General Counsel
Email: justinelee@motivateco.com
Bay Area Motivate, LLC
2200 Jerrold Avenue, Unit J San Francisco, California 94124
Attention: Emily Stapleton, General Manager and Designated Representative
Email: emilystapleton@motivateco.com
10.4 Entire Agreement; Amendments and Waivers. This Continuation Agreement
constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. No supplement, modification or waiver of this Continuation Agreement
shall be binding unless executed in writing by the Party to be bound thereby. No waiver of the
provisions of this Continuation Agreement, or any breach thereof, shall constitute a waiver of
any prior, concurrent or subsequent breach of the same or any other provisions hereof, or shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
10.5 Counterparts; Severability. This Continuation Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The Parties may rely upon a facsimile copy or scanned copy of any Party’s signature as an original for all purposes. In the event that any one or more of
the provisions contained in this Continuation Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision of this Continuation
Agreement or any other such instrument and the remaining provisions shall remain in full force and effect. To the extent permitted by applicable law, any such provision will be restricted in
applicability or reformed to the minimum extent required for such provision to be enforceable.
This provision will be interpreted and enforced to give effect to the original written intent of the
Parties prior to the determination of such invalidity or unenforceability.
10.6 Construction; Incorporation. The headings of the articles, sections, and paragraphs of this Continuation Agreement are inserted for convenience only and shall not be
deemed to constitute part of this Continuation Agreement or to affect the construction hereof.
203215669.16 16
All sections and article references are to this Continuation Agreement, unless otherwise
expressly provided. As used in this Continuation Agreement, (a) “hereof”, “hereunder”, “herein”
and words of like import shall be deemed to refer to this Continuation Agreement in its entirety
and not just a particular section of this Continuation Agreement, and (b) unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number, words of the masculine gender shall include the feminine
and neuter, and, when the sense so indicates, words of the neuter gender shall refer to any
gender. The Parties acknowledge and agree that: (i) this Continuation Agreement is the result of
negotiations between the Parties and shall not be deemed or construed as having been drafted by any one Party, (ii) each Party and its counsel have reviewed and negotiated the terms and provisions of this Continuation Agreement (including, without limitation, any exhibits and
schedules attached hereto) and have contributed to its revision, (iii) the rule of construction to the
effect that any ambiguities are resolved against the drafting Party shall not be employed in the
interpretation of this Continuation Agreement, and (iv) the terms and provisions of this Continuation Agreement shall be construed fairly as to both Parties and not in favor of or against either Party, regardless of which Party was generally responsible for the preparation of this
Continuation Agreement.
10.7 Relationship of the Parties. Operator is an independent contractor and neither
Operator nor its employees shall, under any circumstances, be considered employees, servants, or agents of MTC, nor shall MTC nor its agents or employees be considered employees, servants, or agents of Operator. At no time during the Term or otherwise shall Operator, its
employees, or agents, represent to any person or entity that Operator and its employees are acting
on behalf of, or as an agent of, MTC or any of its employees. MTC shall not be legally
responsible or liable for any negligence, intentional act, or other wrongdoing by or of Operator, its employees, servants, agents, subcontractors, suppliers, or manufacturers of goods or services provided by Operator pursuant to this Continuation Agreement. MTC will not withhold
payments to Operator for any federal or state unemployment taxes, federal or state income taxes,
Social Security tax, or any other amounts for benefits to Operator. MTC will not provide to
Operator any insurance coverage or other benefits, including Workers' Compensation, normally provided by MTC for its employees. This Continuation Agreement does not constitute and shall not be construed as constituting a partnership or joint venture or grant of a franchise between the
Parties.
10.8 Cooperation. The Parties agree to execute such further instruments and to take
such further action as may reasonably be necessary or helpful to carry out the intent of this Continuation Agreement.
10.9 Failure or Delay in Performance. Operator shall not be held responsible for
failure to perform the duties and responsibilities imposed by this Continuation Agreement if such
failure is due to Event of Force Majeure, beyond the control of Operator, that make performance
impossible or illegal, unless otherwise specified in this Continuation Agreement; provided that the Operator (in order to not be held responsible for failure to perform) shall have given MTC Project Manager written notification of such failure, event, or occurrence beyond the control of
Operator not later than 48 hours after the beginning of such failure, event, or occurrence.
203215669.16 17
10.10 Representations of Operator. Operator hereby represents and warrants to MTC
that:
10.10.1Operator is a limited liability company, validly existing and in good
standing under the laws of the State of Delaware, and it is duly authorized to do business in the State of California; and
10.10.2Operator has all requisite power and authority to own or lease its
properties and assets, to conduct its business as currently conducted and to execute, deliver and
perform this Continuation Agreement and all other agreements entered into or delivered in
connection with or as contemplated hereby.
10.11 Ethics in Public Contracting. This Continuation Agreement incorporates all local,
state, and federal law, regulations and rules related to ethics, conflicts of interest, or bribery.
Operator certifies that its offer is made without collusion or fraud and that it has not offered or
received any kickbacks or inducements from any other officer, supplier, manufacturer, or
subcontractor and that it has not conferred on any public employee having official responsibility for this purchase any payment, loan, subscription, advance, deposit of money, services, or
anything of more than nominal value, present or promised unless consideration of substantially
equal or greater value was exchanged.
10.12 Remedies. The remedies available to MTC in various sections of this
Continuation Agreement shall be deemed to be in addition to, and not in limitation of, any other remedies MTC has or may have under applicable law or in equity arising out of or relating to this Continuation Agreement.
10.13 Assignment. Operator shall not assign, transfer, convey, sublet, or otherwise
dispose of any award, or any or all of its rights, obligations, or interests under this Continuation
Agreement, without the prior written consent of MTC, except the preceding clause shall not limit Operator’s rights to enter into subcontracts for the provision of services hereunder.
10.14 Prohibition of Expending Local, Agency, State or Federal Funds for Lobbying
A. Operator certifies to the best of its knowledge and belief that:
i. No state, federal or local agency appropriated funds have been paid, or
will be paid by-or-on behalf of Operator to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an
officer or employee of the Legislature or Congress; or any employee of a
Member of the Legislature or Congress, in connection with the awarding
of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any state or federal contract, grant, loan, or
cooperative agreement.
203215669.16 18
ii. If any funds other than federal appropriated funds have been paid, or will
be paid to any person for influencing or attempting to influence an officer
or employee of any federal agency; a Member of Congress; an officer or
employee of Congress, or an employee of a Member of Congress; in connection with this Continuation agreement; Operator shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in
accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, US. Code. Any person who fails to file
the required certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
C. Operator also agrees by signing this Continuation Agreement that it shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000, and that all such sub recipients shall
certify and disclose accordingly.
ARTICLE XI
DEFINITIONS
11.1 Defined Terms. As used herein, the terms below shall have the following
meanings. Any of such terms, unless the context otherwise requires, may be used in the singular
or plural, depending upon the reference.
“Backend Software and Computer Hardware” shall mean an electronic interface
enabling, among other things, Stations, Bicycles, subscriber customer service, cellular service, Customer Keys, the website, and call center to function.
“Bicycle” shall mean a device propelled solely by human power, upon which a person
may ride either on or astride a regular seat attached thereto, having two or more wheels in
tandem.
“Crash” shall mean every reported incident or event involving a subscriber, Bicycle user, Bicycle, and/or Station resulting in personal injury to the subscriber or others, or property
damage to the Equipment, or to the property of others.
“Customer Key” shall mean a fare card or fob for rental of Bicycles.
“Dock” or “Docking Point” shall mean a locking mechanism contained on a Station
designed to receive a Bicycle for locked storage.
“Equipment” shall mean all physical components provided by, or used by, Operator so
that the System is available for use by the public, including, without limitation Bicycles, Docks,
Technical Platforms, Map Frames, Terminals, cables, Station batteries, maintenance trailer,
truck, electric bicycle, Customer Keys, trailer, and Bicycle and Station spare parts.
203215669.16 19
“Equipment Assignment Conditions” shall mean the following: (a) Operator and the
purchaser of the Equipment have agreed on the purchase price for the Equipment, which shall be
based on the fair market value of the Equipment as an installed system at the time of the
purchase, and (b) such purchaser has paid Operator the agreed upon purchase price for the Equipment.
“Event of Force Majeure” shall mean a delay, suspension or interruption due to strike;
war or act of war (whether an actual declaration of war is made or not); terrorism; insurrection;
riot; injunction; fire, flood or similar act of providence; or other similar causes or events to the
extent that such causes or events are beyond the control of the Party claiming an Event of Force Majeure, provided in each case that such Party has taken and continues to take all reasonable actions to avoid or mitigate such delay, suspension or interruption and provided that such Party
notifies the other Party to this Continuation Agreement in writing of the occurrence of such
delay, suspension or interruption within five (5) business days, or if not reasonably practicable,
as soon thereafter as reasonably practicable, of the date upon which the Party claiming an Event of Force Majeure learns or should have learned of its occurrence. A delay in a decision by a government entity, the approval of which is a condition to an occurrence, shall not constitute an
“Event of Force Majeure” unless such delay is beyond the normal period in which such entity
generally acts with respect to the type of decision being sought and only if the Party claiming
Event of Force Majeure has taken and continues to take all reasonable steps to pursue such decision. In no event will a government entity’s final decision relating to Operator, this Continuation Agreement or the System, whether positive or negative, once made constitute an
Event of Force Majeure (the term “final decision” in this sentence shall refer to a decision with
respect to which all available appeals have been exhausted or the time period for filing such
appeals has expired). The financial incapacity of Operator shall not constitute an Event of Force Majeure.
“Fleet” shall mean 100% of the number of Bicycles obtained by Operator from MTC on
the Effective Date minus the number of stolen (or otherwise unreturned) and unrepairable
Bicycles.
“Functional Bicycle” shall mean the condition of a Bicycle, consistent with the technical specifications of the Bicycles to be provided under this Continuation Agreement, to be ridden by an ordinary subscriber using such Bicycle under normal conditions. A Functional Bicycle does
not refer to comfort, speed, quality of the riding experience, or minor issues with the Bicycle that
does not impede the ability to be ridden.
“Functional Station” shall mean a Docking Station, consistent with the technical specifications of the Docking Stations under the Pilot Program, to be used by an ordinary subscriber using such Docking Station under normal conditions. A Functioning Station does not
refer to inconvenience or inability of a subscriber to follow directions, provided such directions
are provided in a form understandable by an ordinary subscriber. A Functional Station shall
have at least one Docking Point containing a Functional Bicycle, at least one empty Docking Point, and all other elements in working condition to be considered a Functional Station.
“Hacking” shall mean unauthorized and intentional access to the Computer Hardware for
the System and/or Software.
203215669.16 20
“Map Frame” shall mean a two-sided metal informational display unit, including
translucent covering and lock.
“MTC Project Manager” shall mean an individual appointed by MTC to act as the
project officer.
“Notification” shall mean all information provided by MTC, a Pilot City or the general public to Operator about a specific defect or problem concerning the System, Equipment or
operations of the System by written document, email to Operator’s public information email
address for the System, or telephone call to Operator’s call center for the System.
“Operable Station” shall mean a Station at which at least 90 percent of all installed Docks are Operable Docks from which an annual member can check out and return a Bicycle.
“Operating Expenses” shall mean, with respect to Operator (or Motivate) for any
period, the costs expended by Operator (or Motivate) to operate and maintain the System and to
provide the specific services set forth in this Continuation Agreement, including, without
limitation, personnel costs, software license fees, insurance costs, costs of maintaining service vehicles, costs of leasing and maintaining facilities used for the System.
“Operating Losses” shall mean, with respect to Operator (or Motivate) for any period,
the amount, if any, by which Operating Expenses for such period exceed System Operating
Revenues for such period.
“Party” means either MTC or Operator, as the context requires; “Parties” means MTC and Operator.
“Service” shall mean the use of the Equipment by the public at large after the Effective
Date.
“Site” shall mean a designated area on publicly or privately owned real property, which
area contains one or more of each of the following items made available by Operator for the System: Bicycles, Docks, Terminal, Technical Platforms, and Map Frame.
“Station” shall a designated area of docking Bicycles at which Docks, Terminal,
Technical Platforms, and Map Frame are located.
“System Operating Revenues” shall mean all funds derived from ridership use of the
System, including subscription fees and usage fees.
“Technical Platform” shall mean a base component that rests on the ground and supports the Docks, Terminal, and Map Frame.
“Terminal” shall mean a kiosk that provides Bicycle rental instructions, contains
payment equipment (i.e. credit card device), and includes all other means necessary for the rental
of Bicycles.
203215669.16 21
“Trip” shall mean the use of a Bicycle from one Station to another Station or back to the
initial Station.
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203215669.16 A-1-1
Attachment A-1, Description of Services
1. Description of Services
Operator shall operate the bike-sharing system in the Pilot Cities that was installed and in
place at the termination of the Pilot Program Agreement using the same Sites, Bicycles, Docking Stations, Terminals, Docking Points, Technical Platforms, Customer Keys, Back-end Software and Computer Hardware and other Equipment that was used for the Pilot Program. Operator
guarantees the following minimum equipment numbers in Mountain View, Palo Alto, and
Redwood City:
Mountain View: 7 Stations; 117 Docks; 59 Bicycles
Palo Alto: 5 Stations, 75 Docks, 37 Bicycles;
Redwood City: 7 Stations; 117 Docks; 59 Bicycles;
San Francisco: 35 Stations; 665 Docks; 300 Bicycles;
San Jose: 16 Stations; 264 Docks; 110 Bicycles
Operator’s responsibilities include:
(1) Handle ongoing Equipment maintenance and rebalancing;
(2) Manage intellectual property issues related to a program sponsor such as
brands and trademarks;
(3) Manage all ongoing customer service issues associated with the System (unless otherwise instructed); and
(4) Conduct bicycle safety trainings and encourage the use of bicycle helmets.
2. Subscriber Information/Relations.
2.1 Subscriber and Usage Fees. User fees shall be consistent with Attachment A-2, subject to application of Attachment A-3 as provided in Section 2.2 of this Continuation
Agreement.
2.2 Age Requirement for Program Subscribers. Subscriptions shall only be issued to
individuals 18 years of age and older.
2.3 Subscriber Privacy. Operator shall, at all times, protect the privacy rights of all subscribers. Operator shall strictly comply with all applicable federal, state, and local laws,
203215669.16 A-1-2
ordinances, and regulations concerning the privacy of all subscriber information obtained by
Operator in the course of providing services under this Continuation Agreement.
2.4 Subscriber Agreement. Operator shall use the same form of Subscriber
Agreement that was used for the Pilot Program with such changes thereto as Operator considers appropriate. Any material changes to the Pilot Program form shall be subject to the review and approval of MTC. The Subscriber Agreement shall address, at a minimum, the following:
(1) The rates, fees, and deposits (if any).
(2) Confidentiality of personal and financial data and information.
(3) Subscriber’s agreement to return the Bicycle in the same condition as it was when rented.
(4) Subscriber’s agreement to immediately report to the call center any Crash, as
defined in this Continuation Agreement to include any incident or event
resulting in personal injury to the subscriber or others or in property damage
to the Equipment or to the property of others and agreement to follow any instructions from the call center regarding reporting a Crash to police.
(5) Subscriber’s agreement to immediately report to the call center a lost or
stolen Bicycle or a lost or stolen Customer Key.
(6) Subscriber’s responsibility and liability for any consequences of any kind or
nature whatsoever related to a stolen or lost Bicycle or Customer Key. (7) Prohibited uses including, without limitation, no more than one person on a
Bicycle at one time.
(8) Subscriber’s acknowledgement of and acceptance of responsibility and risk.
(9) Prohibition against any person other than the subscriber operating any
Bicycle rented from Operator and prohibition against transfer of a Customer Key to anyone in any manner whatsoever.
(10) A representation by each subscriber that s/he is physically able to ride a
Bicycle without risk to health, knowledgeable about the operation of a
Bicycle, and knowledgeable about the laws pertaining to Bicycles operated
within the jurisdictions where the Bicycles are to be used. (11) Age limits.
(12) Subscriber’s indemnification of MTC and the Pilot Cities, its elected and
appointed officers, officials, employees, and agents.
(13) Prohibition against use of Bicycle while under the influence of alcohol,
drugs, any controlled substance, or any medication that would impair the Bicycle operator’s ability to safely operate the Bicycle.
(14) Instructions regarding proper use of Bicycle luggage carrier as to type of
contents, weight, or visual obstruction.
(15) Prohibition against Bicycle use for any illegal purpose.
2.5 Loss Fees. Operator shall deem a Bicycle as “lost or stolen” if not returned to a Site within 24 hours of being signed out, and charge the subscriber whose account is associated
with that sign-out the amount of the “Loss Fee” set forth in Attachment A-2, subject to
application of Attachment A-3 as provided in Section 2.2 of this Continuation Agreement, which
covers the replacement value of the Bicycle, along with shipping fees and expenses and service
charges for placing a new Bicycle into the operational Fleet. Credit accounts will be charged the Loss Fee at the time a loss is determined. Operator shall include all such circumstances in its
203215669.16 A-1-3
monthly report to MTC. Notwithstanding the foregoing, Operator shall waive such fees for
stolen Bicycles or Bicycles that are damaged in connection with a crime against the rider or in a
collision with a motor vehicle, so long as an appropriate police report is filed for the incident.
2.6 Helmets. Operator shall provide information on the System website and in the subscription agreement about the importance of wearing helmets for safety reasons. Operator
will make reasonable best efforts to provide users with information that directs them to nearby
bike shops and other locations where subscribers may purchase a helmet and shall display on the
System website where discounts are available and at Terminals.
2.7 Subscriber Communications. Upon request from MTC, Operator will send biking related information announcements via electronic mail to all subscribers who do not “opt out’ of
receiving such emails.
3. Operations
3.1 Continuous Operation and Management. The System shall commence operating
on the Effective Date and shall remain in operation 24 hours per day, 365 days per year.
3.2 Inspection and Maintenance.
(1) Operator shall, at all times, follow and strictly comply with the
manufacturer’s requirements, warranties, and recommendations for assembly,
maintenance, storage and repair of all Equipment. Operator shall not be
obligated to purchase any replacement Equipment. (2) Operator shall perform a maintenance check for each Bicycle once every two
calendar months consisting of the following checks, with deficient elements
repaired or replaced as necessary:
Check tire pressure, and add air as may be needed, to recommended Pounds per Square Inch measurement;
Check tightness of handlebars, headset bearings, and full handlebar range of
motion (left to right);
Check tightness of seat, seat post quick-release, and see that seat post moves
freely in full range of motion (up and down); Check brake function (front and rear);
Check grips for wear and brake levers for tightness and damage;
Check bell for tightness and correct function;
Check handlebar covers for damage and instruction stickers;
Check front basket for tightness and damage, and check bungee cord for wear;
Check for correct gears and shifter function through all 5 gears;
Check fenders (front and rear) for damage, and clean outside of fenders;
Check tires (front and rear) for damage or wear;
Check wheels (front and rear) for trueness, broken or bent spokes and hub or axle tightness;
Check LED lights (front and rear) for function;
203215669.16 A-1-4
Check reflectors on wheels, seat and basket, to ensure they are present, clean,
and undamaged;
Check pedals and cranks for tightness;
Lubricate and clean chain and check chain tensioner for correct function; Check kickstand for correct function; and Take brief test ride to ensure overall correct function of Bicycle.
(3) Operator shall clean each Station two times per month-- one time between the
first and fifteenth days of the month, and one time between the sixteenth and
last days of the month. Station cleaning shall consist of, at a minimum, litter removal and, as needed, power washing of Docks, Terminal Platforms and pavement.
(4) (a) Except as required by clause (b) below, Operator shall remove
conspicuous graffiti within 72 hours after Notification; and(b) Operator shall
remove racist and hate graffiti within 4 hours after Notification. (5) Operator shall remove conspicuous accumulations of litter from Stations within 24 hours after Notification.
(6) The System must be operational 100% of the time every month (i.e., every
hour of every day, 24 hours per day, 7 days per week, measured monthly), so
that, at a minimum, all System users can dock and undock Bicycles at all times, excluding (i) scheduled downtime, and (ii) any period when the Computer Hardware for the System and/or Software is, and remains,
damaged through Hacking. System functionality does not apply to hardware
malfunctions at individual Stations or to individual Stations that are not
Operable Stations. (7) Stations, in the aggregate, must be Operable Stations 99% of the time every month (i.e., every hour of every day, 24 hours per day, 7 days per week,
measured monthly), excluding (i) during scheduled downtime, and (ii) any
period when a Station is not an Operable Station because the Terminal or
other Equipment located at the Station has been damaged by third-parties. Calculated by taking the sum of the number of hours that each Station was Operable Station during a month, dividing that sum by the product of the
total number of hours in the month and the number of Stations that month.
Station Operability does not apply during any period in which the entire
System is down. (8) The System website must be operational 100% of the time every year (i.e., every hour of every day, 24 hours per day, 7 days per week, measured
annually) excluding (i) scheduled downtime, and (ii) any period when the
Computer Hardware for the System and/or Software is, and remains,
damaged through Hacking. In any circumstances where Operator is required to perform cleaning services under this Continuation Agreement, Operator shall use the most environmentally friendly cleaning
solutions and chemicals available for these purposes.
3.3 Availability of Bicycles. Operator shall ensure that at least 90% of bicycles in the
Fleet are operational, on-the-street and available for public use. The number of available bicycles will be recorded once each Day of the month between the hours of 11:00 AM and 3:00 PM.
203215669.16 A-1-5
3.4 Distribution of Bicycles. Operator shall re-distribute Bicycles among Sites and
place the Bicycles in operable Docks throughout the day from 6 am to 10 pm during each day of
operation. Such distribution shall be critically timed to increase the probability that each Site, at
all times, contains a sufficient number of empty Docks for Bicycles to be returned and occupied Docks containing Bicycles available for subscribers. All Bicycles placed in operational Docks
shall be in acceptable operating condition. Operator shall ensure that, during any day, no Site has
all empty Docks or all full Docks for more than three hours between the hours of 6 am and 10
pm. If during any month the average usage of a Site is greater than 2.5 Trips per day per Dock
or less than 0.75 Trips per day per Dock, then this service level does not apply for such Site for such month.
3.5 Operator’s Call Center. Operator shall provide to MTC, all subscribers, and the
public at large, a toll-free telephone number for Operator’s call center. The call center shall be in
continuous operation 24 hours per day, 7 days per week, and 365 days per year. Not less than
80% of telephone calls to Operator’s call center each month must be answered by a person within 90 seconds or less. Operator shall conspicuously post a notice on each Station advising
the general public that they may direct their complaints and comments to Operator’s call center.
Operator shall ensure that the call center can handle calls in English, Spanish, Mandarin
and Cantonese, using operators fluent in those languages. The operators at the call center shall be
fully competent and knowledgeable to answer questions and provide information concerning, among other things, subscription process, subscription prices, billing, Crashes, comments,
complaints, malfunction problems, location of Sites, directions to nearest Site that has Bicycles
available for use and/or available Docks for returns, directions to helmet sales location(s), and
instructions on how to fit a helmet. The call center manager shall be knowledgeable about all
service areas. The call center operators shall keep accurate and complete written records of each such call in a Customer Service Log as hereinafter required, including the primary reason for
each call and the status of the call (e.g., “no further action”, “requires reimbursement”).
3.6 Email Response Time. Not less than 95% of emails to Operator’s public
information email address must be answered within 1 business day.
3.7 Comments and Complaints. Operator shall establish and maintain during the Term prompt and efficient procedures for handling complaints from the public for which
Operator receives a Notification. Such procedures shall be consistent with all applicable laws,
rules and regulations and the provisions of this Section. Such procedures shall be set forth in
writing and copies thereof shall be maintained at Operator’s office and shall be available to the
public and the Pilot Cities upon request.
3.8 System Website. Operator shall create and maintain a System website the content
of which shall address, at a minimum, the following:
(1) Eligibility requirements;
(2) Subscription information and rate, schedules;
(3) Payment information and subscription processing; (4) Method for subscribers to log in, update required information, and track individual usage data compiled by the system;
203215669.16 A-1-6
(5) Subscriber Agreement and acceptance of terms;
(6) Map with the entire regional network of Sites and real-time availability of
Bicycles at each Site, both for a standard computer screen and mobile phone;
(7) Frequently Asked Questions; (8) Safety requirements and information (including notification in the event of malfunction or Crash);
(9) Encouragement of helmet use for subscribers and a listing of nearby locations
where users may purchase or lease helmets;
(10) Merchandise page; (11) Permitted links to other Bay Area based bike programs and events; (12) A listing of nearby bike rental shops, locations and contract information;
(13) Safety video (supplied by the Air District or others) addressing safe use of
bicycles, helmets, and California Vehicle Code and local laws pertaining to
bicycle riders; and (14) A webpage that contains links to MTC- approved information (i.e. links to partner websites and notices).
Operator, at all times, shall keep the website information updated, current, and accurate
on a regular basis.
3.9 Operator Staffing Levels. Operator, at all times, shall provide sufficient staff to efficiently and promptly provide the services set forth in this Continuation Agreement.
3.10 Personnel and Staffing Requirements. Operator shall deliver to MTC copies of all
written personnel policies that, at a minimum, address employee conduct and qualifications.
3.11 Relocation, Resizing, and/or Reconfiguration of Stations.
(1) By Operator. In the event that Operator wishes to remove, relocate, resize, and/or reconfigure any Station, other than those Stations whose locations are
fixed pursuant to the terms of a grant or sponsorship agreement, due to under-
utilization or lack of profitability, it must notify MTC in writing, providing
sufficient detail and description of the proposed relocation site and reasons
therefore, prior to removal. Assuming that MTC does not disapprove the request within ten business days, Operator may remove, relocate, resize,
and/or reconfigure the Station consistent with Operator’s notice of same to
MTC and subject to local review and permitting requirements.
(2) By MTC. MTC shall provide Operator with 48 hours advance notice of any
relocation or reconfiguration of Stations to accommodate construction, special events, or other reasons. The fee payable by MTC (or the applicable
Pilot City) to Operator for any such relocation or reconfiguration shall be
determined in accordance with Attachment A-4.
3.12 Interruption of Service.
(1) Intentional Interruption of Service. If, at any time, Operator intends, or is required, to temporarily interrupt all or a portion of the service, for any
reason beyond Operator’s reasonable control, including, without limitation,
weather, safety, or other event or circumstance where continued service
203215669.16 A-1-7
would be unsafe, unavailable, impractical, or impossible , then Operator shall
contact MTC by telephone and by email at least 24 hours before the
interruption of service and specifically describe the reason, proposed
duration, Operator’s proposed actions to correct the cause of the interruption (if possible), minimize the interruption, and Operator’s plans to resume service.
Operator promptly shall notify the subscribers of the cause and expected duration of the
proposed interruption of service by posting notice on the website, via email, and Terminals
(electronic message).
(2) Unintentional Interruption of Service. If, at any time, a System malfunction
or an event or circumstance occurs where continuous service would be unsafe
or unavailable for reasons beyond Operator’s reasonable control, and this
causes or will cause a temporary interruption of service, then Operator shall
immediately contact MTC by telephone and by email and specifically describe the reason, estimated duration, Operator’s proposed actions to
correct the cause of the interruption (if possible), efforts to minimize the
interruption, and Operator’s plans to resume service.
Operator promptly shall notify the subscribers of the cause and expected duration of the
interruption of service by posting notice on the website, via email, and Terminals (electronic message).
In the case of both Intentional and Unintentional Interruptions of Service, Operator shall
be obligated to perform all necessary and appropriate acts to restart the service as soon as
possible.
3.13 Safety Training: On at least a quarterly basis, Operator shall provide safety training on proper use of bicycles and applicable rules and regulations of the road to current
and/or potential users in each city.
203215669.16 A-2-1
Attachment A-2, Subscriber Related Fees
1. Annual and Monthly Subscription and Usage Fees
a) Annual Subscription Fee - One-time payment of $88
b) Annual and Monthly Subscription Usage Fees:
i. No charge for up to 30 minute use of a Bicycle per session,
ii. $4.00 for 31-60 minutes,
iii. $7.00 for each additional 30 minutes
A usage fee will be tracked and charged to credit accounts within one hour (or based on
normal credit card operating procedures) of any occurrence of continuous usage exceeding
thirty (30) minutes.
c) Annual Memberships may be purchased at a discounted rate for promotional purposes
and may be purchased in bulk at a discounted rate
2. Other Subscription and Usage Fees
a) Short-term Subscription Fees
i. Three day Subscription fee - $22,
ii. One day Subscription fee - $9
b) Other Subscription Usage Fee:
a. No charge for up to 30 minute use of a Bicycle per session,
b. $4.00 for 31-60 minutes,
c. $7.00 for each additional 30 minutes
A usage fee will be charged to credit accounts at the time any continuous usage exceeding 30 minutes is determined.
3. Bicycle Loss Fee - $1,200.
4. Operator reserves the right, in its sole discretion, to increase or decrease the fees
under 2(a) and 2(b) above.
203215669.16 A-3-1
Attachment A-3, New Subscriber-Related Fees
1. General. At Operator’s election, after June 30, 2016, Membership Fees and
Initial Ride Periods shall be consistent with Section 2, the Membership Fee for users eligible for
the affordability subscription specified in Section 3 shall be as described in said Section 3, the
maximum Bicycle usage charge shall be consistent with Section 4 and the fees for damaged, lost, stolen or otherwise unreturned Bicycles shall be consistent with Section 5 initially charged by Operator shall be consistent with this Section. A “Membership Fee” is an amount that entitles
the purchaser of the membership (a “member”, for the period of such purchased membership) to
check out (as defined below) one or more Bicycle(s) at a time, for the length of time described
below, provided that the member shall be charged a usage fee associated with the time period the Bicycle is checked out beyond the Initial Ride Period. A Bicycle is “checked out” for the period from the time it is removed from a Dock to the time it is returned to a Dock. A member may
check out and return a Bicycle from or to any Dock at any Station in the System, for an unlimited
number of times, at any time during the period of the member’s membership, with the usage fee
applicable to each such checkout and return sequence being calculated separately (so, for example, an annual member may, within the member’s membership period, check out a Bicycle and return it within the first 30 minutes after checkout, and then subsequently check out a
Bicycle and return that Bicycle with the first 30 minutes after that checkout, without incurring
any usage fee for either checkout period).
2. Membership Fees, New Ridership Programs/Arrangements, and Initial Ride Periods:
2.1 Operator shall offer an annual membership (“Annual Membership”)
for a fee (the “Annual Membership Fee”) in an amount not to exceed the Annual Membership
Fee Cap in effect from time to time. The Annual Membership Fee Cap shall be $149 for a one-
year period. The period of an Annual Membership shall run from the day the annual membership is activated until the first anniversary of the date on which the Annual Membership had been activated (but a membership purchased on February 29 shall expire on March 1 of the
following year). At the end of the Term, each member can elect whether to roll his or her
Annual Membership into the BABS Program. Such election can be made by contacting the call
center. If a member elects not to roll into the BABS Program, then if the Annual Membership Fee has been paid in advance for a full 12 months, the prorated amount for the portion of an Annual Membership period that is beyond the Term shall be reimbursed to or credited to the
credit card account of the Annual Member;
2.2 Annual Memberships may be paid in 12 equal monthly instalments at
a price not greater than 120% of the Annual Membership Fee;
2.3 All memberships will include a free period of usage (the “Initial Ride Period”), which is the length of time at the beginning of each individual Trip to which additional
usage fees will not be applied. For Annual Memberships and Affordability Memberships, the
Initial Ride Period is 30 Minutes. Usage fees will be applied to all Trips that exceed the Initial
Ride Period; and
203215669.16 A-3-2
2.4 For monthly, weekly and daily memberships, and for usage of the
System by non-members, Operator will determine the applicable fees, usage fees, and periods of
use for members beyond the Initial Ride Period in its sole discretion.
2.5 Nothing in the foregoing shall limit the right of Operator to offer premium memberships featuring an Initial Rider Period longer than 30 minutes for an Annual Membership Fee greater than $149.
3. Affordability Option:
3.1 Notwithstanding the permitted rate for an Annual Membership set
forth in set forth in Section 2.2.1, Operator shall charge those eligible for an “affordability subscription” no more than $60 per annum (excluding sales tax) as the Annual Membership Fee, or $5.00 per month for a 12-month membership.
3.2 Persons who were entitled to affordability memberships under the
Pilot Program shall be entitled to affordability memberships for the System. Members of
households enrolled in the Utility Lifeline Programs (also known as California Alternative Rates for Energy (CARE)) available in the MTC Area are also eligible for affordability memberships. Within 10 days following the Effective Date, Operator shall propose, for MTC’s review and
approval, procedures for verifying enrollment in CARE. In San Francisco, those who meet Muni
Lifeline income requirements as determined by the City of San Francisco’s Human Services
Agency are also eligible for the affordability membership. Upon mutual agreement of the Parties, eligibility may expand to include other categories of persons so long as the eligibility is determined by third parties.
3.3 Members enrolling through the affordability program shall be entitled
to the same rights and privileges as all other Annual Membership holders.
3.4 The usage fees for affordability members shall not exceed the rate charged to general annual members.
4. The checkout period for the purposes of calculating usage fees shall always
commence with the time a Bicycle is actually removed from a Dock, and it shall not be based on
the time of insertion of a payment or identification card.
5. The maximum Bicycle usage charge initially charged with respect to any member shall be $100 per 24 hour period, not including charges for damaged, lost, stolen or otherwise unreturned Bicycles.
6. Fees for damaged, lost or otherwise unreturned Bicycles initially charged shall
be (i) $1,200, if not returned, or (ii) if returned, the sum of all direct costs of the repair, including
all labor and parts, as determined by Operator in its reasonable discretion, plus a 10% administrative fee; provided, however, that the fees charged to affordability members for unreturned or damaged Bicycles shall be not more than 33% of the fees set forth in the preceding
clauses (i) and (ii). Notwithstanding the foregoing, Operator shall waive such fees for stolen
Bicycles or Bicycles that are damaged in connection with a crime against the rider or in a
collision with a motor vehicle, so long as an appropriate police report is filed for the incident.
203215669.16 A-3-3
7. Operator shall at all times post on all Stations and on Operator’s website a
complete and up-to-date fee description that sets forth each and every current membership and
usage fee offered by Operator, the methods of purchasing memberships and paying fees,
available discounts on such fees, the applicability and terms of such discounts and, to the extent applicable, how to apply for or qualify for such discounts, and fees associated with damaged, lost, stolen or otherwise unreturned Bicycles. Operator shall furnish written copies of such
material to the public upon request.
8. Operator shall accept credit card and debit card payments online and at all
Stations but in the case of debit cards only those that have a Visa or Mastercard logo on them. Operator may employ such other methods of payment as it may determine.
9. All required state sales and use taxes with respect to membership and usage
fees shall be collected and paid by Operator, as required by applicable law.
10. Operator shall be permitted to create System pricing discount programs,
which may be targeted in connection with marketing and outreach efforts, and in connection with Sponsorship or Advertising programs, to expand or enable System use among different communities or for other lawful purposes.
11. At any time and from time to time, Operator shall have the right:
11.1 To adjust the amount of the Annual Membership Fee specified in
Section 2 downwards at any time and upwards on each anniversary of the Effective Date by an amount not to exceed the Annual Membership Fee Cap then in effect;
11. 2 To adjust in its sole discretion all other fees, time periods and
charges specified hereunder other than those fees, time periods and charges specified in Section
2 and Section 3; and
11.3 To adjust upward the duration of the Initial Ride Period.
203215669.16 A-4-1
ATTACHMENT A-4 FEE SCHEDULE FOR
STATION DEACTIVATION, DE-INSTALLATION AND ADJUSTMENT
As stated in Section 3.11(2) of Attachment A-1 of this Continuation Agreement, the following is the fee
schedule for Station Deactivation, De-Installation, and Adjustments (each as defined below). (Capitalized
terms used but not otherwise defined herein shall be defined as provided below.))
Section 1: For Public Works, Other Special Events and Public Safety Emergencies there is no charge to
the Pilot City. In addition, for each Pilot City, there is no charge for the first 2 Discretionary Requests
by the Pilot City.
Section 2: For (a) Private property owners or contractors doing private construction on public or
private property, (b) event producers or organizers of For Profit and Political Special Events, and (c)
Discretionary Requests by a Pilot City after the first 2 Discretionary Requests by the Pilot City, the
following fee schedule applies:
1. Deactivation: Station is deactivated but not removed; Bicycles are removed and cannot be
returned by customers:
$500/Station + $10/Dock/day of Deactivation. (Each of the foregoing amounts is subject to CPI
Adjustment.)
2. De-installation and Reinstallation: Station is completely removed from the location and returned
to same location:
$1,000/Station + $20/Dock + $10/Dock/day of Deactivation. (Each of the foregoing amounts is
subject to CPI Adjustment.)
3. Adjustment: Property owners and utilities may seek permanent or temporary changes to a
Station’s size or configuration, and changes to Street Treatments and Street Markings as
necessitated by such, without changes to the Station location:
$1,000/Station + $20/Dock that is adjusted. (Each of the foregoing amounts is subject to CPI
Adjustment.)
4. Temporary Relocation Followed by Reinstallation: Property owners and utilities who need to De-
install or Deactivate a Station for a period greater than 15 business days must pay for the
temporary relocation of the Station during the event or construction, which allows for
continuous operation of the Station, and must also pay for the reinstallation of the Station at
the original location after completion of the event or construction:
203215669.16 A-4-2
$5,000/Station + $40/Dock. (Each of the foregoing amounts is subject to CPI Adjustment.)
Defined Terms:
“Adjustment” shall mean permanent or temporary changes to a Station’s size or configuration,
and changes to Street Treatments and Street Markings as necessitated by such, without changes
to the Station location.
“CPI” shall mean the Consumer Price Index for the Consolidated Metropolitan Statistical Area
covering San Francisco-Oakland-San Jose, as measured by the Consumer Price Index for All
Urban Consumers, as published from time to time by the Bureau of Labor Statistics, U.S.
Department of Labor.
“CPI Adjustment” shall mean, with respect to a specific cost, that such cost is subject to annual
adjustment each January 1 based on changes in the CPI from the Effective Date to the date of
adjustment.
“Deactivation” shall mean, at a minimum, shut-down of Terminal (or display of messaging on a
Terminal screen indicating that Station is out of service) removal of all Bicycles present,
installation of physical barriers on all Docks that prevent docking of Bicycles, and designation of
the Station as “Out of Service” on the System website, app, and all other real-time data sources.
A Deactivation event is not over until the Station has been reactivated.
“De-Installation” shall mean, at a minimum, (i) the temporary or permanent full removal of the
Station and its associated Street Treatments, and, (ii) the designation of the Station as “Out of
Service” on, or removal of the Station from, the System website, app, and all other real-time
data sources.
“Discretionary Request” shall mean any De-Installation and/or Re-Installation or Station
Adjustment requested by the Pilot City that is not related to Public Works, Other Special Events,
or Public Safety Emergencies.
“For Profit and Political Special Events” shall mean temporary events permitted by the Pilot City
that (i) have entry fees for participation (e.g., road races, cycling tours); or (ii) have the purpose
of selling products (e.g., street fairs, food festivals, holiday fairs, film festivals, film shoots); or
(iii) have a title sponsor; or (iv) are political events.
“Other Special Events” shall mean temporary events permitted by the Pilot City other than For
Profit and Political Special Events (e.g., heritage or cultural parades).
“Public Safety Emergency” shall mean an instance when (i) Equipment is damaged or in an
unsafe state so as to cause an immediate danger to the public; or (ii) circumstances or situations
203215669.16 A-4-3
immediately surrounding Equipment create an imminent danger to the public; or (iii) the area
around a Station becomes unsafe or is required by police department or other emergency
responders of a Pilot City in order to respond to a natural disaster or avoid a calamity.
“Public Works” shall mean all instances where a Pilot City (including a utility owned by a Pilot
City) or its contractors (including any private contractors hired by a Pilot City) are undertaking
construction, maintenance, repairs or other public improvements.
“Street Marking(s)” shall mean thermoplastic paint markings and/or striping on the pavement
for the express purpose of demarcating a Station.
“Street Treatments” shall mean the three-dimensional objects used to demarcate the Station,
and protect it from adjacent parking and moving traffic. Such objects may include, but are not
limited to, delineators and wheel stops.
PROGRAM AGREEMENT TO OPERATE
BIKE SHARE IN PALO ALTO
This Program Agreement to Operate Bike Share in Palo Alto (this “Agreement”) is entered into as of July 1, 2016 (the “Effective Date”), by and between Bay Area Motivate, LLC, a Delaware limited liability company (the “Operator”), and the City of Palo Alto, a California chartered
municipal corporation (the “City”), having an office at 250 Hamilton Avenue, Palo Alto,
California 94301. Capitalized terms used herein and not otherwise defined shall have the same
meanings as set forth in the MTC Agreement (as defined below). Operator and the City are referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, the original operator of the Bay Area Bike Share Pilot Program, Alta Bicycle Share, Inc. was acquired in December 2014 by the owner of Bay Area Motivate, LLC;
WHEREAS, the Operator and the Metropolitan Transportation Commission (“MTC”)
have entered into that Bay Area Bike Share Program Agreement (“MTC Agreement”) as of
December 31, 2015, attached hereto as Exhibit A, for the design, build, operation, maintenance
and marketing of a network of publicly available bicycles in a pilot bike share program in the Bay Area;
WHEREAS, Bay Area Bike Share includes 70 stations and 700 bicycles throughout the
San Francisco Bay Area with five stations located in the City of Palo Alto;
WHEREAS, simultaneously with the MTC Agreement, Operator and the MTC entered
into that Agreement to Continue Pilot Bike Share Program (as amended from time to time, the “Continuation Agreement”) for the continuation of a pilot program of existing bike share operations in certain cities;
WHEREAS, the Term of the Continuation Agreement as to the City of Palo Alto will be
extended on or before the Effective Date to November 30, 2016;
WHEREAS, the City Council of the City of Palo Alto provided direction to approve a
Program Agreement with Bay Area Motivate, LLC to maintain and operate the City’s five existing bike share stations that were part of the original Bay Area Bike Share Pilot Program; and
WHEREAS, the Operator and the City desire to extend the Pilot Program with respect to
bike share operations in Palo Alto.
NOW THEREFORE, in consideration of the premises and the mutual covenants herein
contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Program Agreement to Operate Bike Share in Palo Alto
2
AGREEMENT
1. Services. Operator shall operate the portion of the System currently in existence
in Palo Alto (“Palo Alto System”) according to the terms and conditions of the Continuation Agreement except as otherwise stated herein, during the Term. The size of the Palo Alto System may not be increased during the Term, whether by an increase in the number of Bicycles, Docks,
Kiosks, Stations or otherwise.
2. Operating Fee. From the Effective Date to the end of the Term, the City shall pay to Operator, monthly, (i) the “Cost to operate and maintain the Equipment” in the Pilot Cities, and (ii) if Operator upgrades the AD Equipment, the “Cost to upgrade AD Equipment,” each as
set forth in Appendix B of the MTC Agreement, to cover Operating Expenses in Palo Alto.
Amounts owed by City under this Section 2(ii) will be prorated for the month in which upgrade
of the AD Equipment occurs. 3. Payments. Motivate may invoice the City on the first day of each month in
advance for the Operating Fee described in Section 2 and any other fees owing and due to
Motivate. City shall remit payment by check to Bay Area Motivate, LLC, 5202 Third Avenue,
Brooklyn, NY 11220, Attn: Accounts Receivable or by electronic transfer, within thirty (30) days of the date of the invoice for such payment.
4. Term. This Agreement will commence on the Effective Date and remain in effect
until November 30, 2016, unless earlier terminated in accordance with the terms hereof (the
“Term”). Either Party may terminate the Agreement for convenience upon sixty (60) days’ written notice to the other Party.
5. Expansion Planning. The City shall be solely responsible for any plans, and their
associated costs, to expand the Palo Alto System after the expiration of the Term, including the
ordering and purchasing of new Equipment. For the avoidance of doubt, Operator’s obligations under this Agreement do not include placement of purchase orders for new Equipment unless otherwise agreed to by the Parties.
6. Sponsorship. The City may secure Sponsorships and place recognition thereof on
one side of one Map Frame (as defined in the Continuation Agreement) at each Station in the
Palo Alto System, provided that such Sponsorships may not be in the same category as the Title Sponsor. The City will have no rights to determine System naming or branding of Bicycles or
any other physical assets besides one side of each Map Frame, or to share in any revenue
therefrom. Such naming and branding will be determined by Operator and Title Sponsor in
compliance with local advertising regulations, and are subject to change at any time.
7. Notices. Except as otherwise provided herein, all notices, requests, demands and
other communications which are required or may be given under this Agreement shall be
provided in the manner set forth in this section. Notice to a Party shall be delivered to the
attention of the person listed below, or to such other person or persons as may hereafter be
designated by that Party in writing. Notice shall be in writing sent by e-mail or regular first class mail. In the case of e-mail communications, valid notice shall be deemed to have been delivered
Program Agreement to Operate Bike Share in Palo Alto
3
upon sending, provided the sender obtained an electronic confirmation of delivery. E-mail
communications shall be deemed to have been received on the date of such transmission,
provided such date was a business day and delivered prior to 4:00 p.m. PST. Otherwise, receipt
of e-mail communications shall be deemed to have occurred on the following business day. In the case of regular mail notice, notice shall be deemed to have been delivered on the mailing date and received five business days after the date of mailing.
If to City:
City of Palo Alto 250 Hamilton Ave
Attention: Joshuah Mello, Chief Transportation Official
Email: Joshuah.Mello@CityofPaloAlto.org
If to Operator:
Bay Area Motivate, LLC
5202 Third Avenue
Brooklyn, New York 11220 Attention: Justine Lee, Vice President and General Counsel Email: justinelee@motivateco.com
Bay Area Motivate, LLC
2200 Jerrold Avenue, Unit J San Francisco, California 94124 Attention: Emily Stapleton, General Manager
Email: emilystapleton@motivateco.com
8. Entire Agreement; Amendments and Waivers. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the
Parties. No supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the Party to be bound thereby. No waiver of the provisions of this
Agreement, or any breach thereof, shall constitute a waiver of any prior, concurrent or
subsequent breach of the same or any other provisions hereof, or shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
9. Assignment. Operator shall not assign, transfer, convey, sublet, or otherwise
dispose of any award, or any or all of its rights, obligations, or interests under this Agreement, without the prior written consent of the City, except the preceding clause shall not limit
Operator’s rights to enter into subcontracts for the provision of services hereunder.
10. Governing Law. This Agreement shall be governed in all respects, including
validity, interpretation and effect, and construed in accordance with, the laws of the State of
Program Agreement to Operate Bike Share in Palo Alto
4
California, irrespective of conflict of laws principles, as applicable to contracts entered into and
to be performed entirely within the State of California.
11. Severability. The clauses and provisions of this Agreement are intended to be severable. If any clause or provision is declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such
provision shall be deemed a separate, distinct, and independent portion, and such declaration
shall not affect the validity of the remaining portions hereof, which other portions shall continue
in full force and effect, but only so long as the essential terms underlying this Agreement are not undermined.
12. Counterparts. This Agreement may be executed in one or more counterparts
which, when taken together, shall constitute one and the same.
[Signature page follows]
Signature Page to Program Agreement to Operate Bike Share in Palo Alto
5
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
written above.
OPERATOR: BAY AREA MOTIVATE, LLC
By: Jay Walder, President & CEO
CITY: CITY OF PALO ALTO
By: Name:
Title:
Exhibit A to Program Agreement to Operate Bike Share in Palo Alto
6
Exhibit A
MTC Agreement
See attached.