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HomeMy WebLinkAboutExhibit 1 SUB4-/uite ?16 or; i-nal Cam he ) ot,t f- Concession Agreement between City of Miami and Deco Bike, LLC For a Self -Service Bicycle Rental & Sharing Program d roes- SECTION 1 DEFINITIONS 7 SECTION 2 TERM 9 2.1 Initial Term of Agreement 9 2.2 Extension of Agreement 10 2.3 Contract Year 10 SECTION 3. CONCESSION AREA(S) AND CONCESSION SERVICE ZONE 10 3.1 Concession Service Zone. 10 3.2 Concession Area (s) 10 SECTION 4. USE(S) 11 4.1 Bicycle Sharing & Rental Services 11 4.2 Rental Kiosks and Bicycle Racks 14 4.3 Operational Ceiling and Operational Minimum for Program 16 4.4 Hurricane Evacuation Plan 17 SECTION 5 CONCESSION FEES 17 5.1 Revenue Sharing 17 5.2 Interest for Late Payment 21 5.3 Sales and Use Tax 21 SECTION 6. MAINTENANCE AND EXAMINATION OF RECORDS. 21 SECTION 7. INSPECTION AND AUDIT 22 SECTION 8. TAXES, ASSESSMENTS 23 8.1 Concessionaire Tax Responsibility 23 8.2 Procedure If Ad Valorem Taxes Assessed. 23 SECTION 9. EMPLOYEES AND INDEPENDENT SUBCONTRACTORS 23 9.1 Concessionaire's Employees 23 9.2 Identification 24 9.3 Local Hiring 24 SECTION 10 HOURS OF OPERATION 24 SECTION 11 IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION 24 11.1 Improvements 25 11.2 Maintenance/Repair 26 11.3 Orderly Operation 27 11.4 No Dangerous Materials 27 11.5 Security 28 11.6 Inspection 28 SECTION 12 INSURANCE 29 SECTION 13 INDEMNITY 30 13.1 Indemnification 30 13.2 Force Majeure 31 Page 2 of 63 13.3 Labor Dispute 31 13.4 Waiver of Loss from Hazards 32 SECTION 14. DEFAULT AND TERMINATION 32 14.1 Bankruptcy 32 14.2 Default in Payment 32 14.3 Non -Monetary Default 32 14.4 City's Remedies for Concessionaire's Default 33 14.5 Default by the City 33 14.6 Surrender of Concession Areas / Removal by Concessionaire of Equipment/Improvements34 14.7 Substitute Performance 34 SECTION 15. PERFORMANCE BOND OR ALTERNATE SECURITY 34 SECTION 16. ASSIGNMENT 35 SECTION 17. INTELLECTUAL PROPERTY; SPONSORSHIPS; ADVERTISEMENT 35 17.1 Sponsorships Directly Relating to use of City Logo or Likeness• 35 17.2 Advertisements 36 SECTION 18 NO IMPROPER USE 37 SECTION 19 PRICE SCHEDULES 38 SECTION 20 NOTICES 38 SECTION 21 LAWS 39 21.1 Compliance 39 21.2 Governing Law 39 21.3 Equal Employment Opportunity 39 21.4 No Discrimination 39 SECTION 22 MISCELLANEOUS 39 22.1 No Partnership 40 22.2 Modifications 40 22.3 Complete Agreement 40 22.4 Headings 40 22.5 Binding Effect 40 22.6 Clauses 40 22.7 Severability 40 22.8 Right of Entry 40 22.9 Not a Lease 41 22.10 Signage 41 22.11 Procedure for Approvals and/or Consents 41 22.12 No Waiver 42 22.13 No Third Pary Beneficiary 42 22.14 Proposal Documents 42 SECTION 23 LIMITIATION OF LIABILITY 42 Page 3 of 63 SECTION 24 VENUE 43 SECTION 25 CITY'S CONTRIBUTION TO PROGRAM 43 EXHIBITS 46 Exhibit 2.2 (a) 47 Concession Zone (approximate) 47 Exhibit 2.2 (b) 48 Concession Areas List 48 Exhibit 2.2 (c) 53 Phase 1 Map 53 (Approximate boundaries) 53 Exhibit 3.1 54 Program Equipment: Bicycle Image & Specs 54 Rugged Tires/Tubes CPSC Compliant 1 or 2-Speed Securitized HardwareExhibit 3.1.1 54 Exhibit 3.1.1 55 Program Equipment: Kiosk Station Format 55 Exhibit 3.1.2 56 Program Equipment: Typical Site Plan for Parking Spaces 56 EXHIBIT 3.2.1 58 PRICE SCHEDULE 58 Exhibit 16.1 (a) 60 Bicycle Logo Sponsorship 60 Exhibit 16.1(b) 61 Kiosk Logo Sponsorship 61 Exhibit 16.2 (a) 62 On -Bicycle General Advertising Format 62 Exhibit 16.2 (b) 63 Kiosk General Advertising Format 63 Page 4 of 63 CONCESSION AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND DECO BIKE, LLC. FOR THE IMPLEMENTATION, MANAGEMENT AND OPERATION OF A SELF-SERVICE PUBLIC BICYCLE SHARING PROGRAM PURSUANT TO REQUEST FOR PROPOSALS NO. 275267 THIS Professional Services AGREEMENT entered into this day of , 2013, by and between the CITY OF MIAMI, Florida (City), a municipal corporation organized and existing under and by virtue of the laws of the State of Florida, 444 SW 2nd Ave, Miami, Florida 33130, and DECO BIKE, LLC., a Florida corporation, with offices at 41 NE 17 Terrace, Miami Florida 33132 (hereinafter called "Concessionaire"). WITNESSETH WHEREAS, self-service bicycle sharing programs are revolutionizing the way residents and tourists commute within cities in Europe and North America, and a self-service bicycle sharing program with public access has been determined by the City to be a desirable and valuable mode of alternative public transportation for the community; and WHEREAS, a self-service bicycle sharing program serves as a great health benefit to residents and tourists, alleviates parking and vehicular traffic congestion, and reduces vehicle emissions and reliance on fossil fuels, serving as a vital and integral part of the community; and WHEREAS, the City issued RFP # 275267 and the Concessionaire was recommended to the Commission as the most responsive and responsible Concessionaire to operate and manage this Program; WHEREAS, the City Manager accepted the findings and recommendation of the Request for Proposals ("RFP") Evaluation Committee, on September 19, 2011 allowing City staff to enter into negotiations with Concessionaire as the top -ranked responsive proposer; and WHEREAS, accordingly, the City and Concessionaire have negotiated the following Agreement for Concessionaire to be the exclusive firm for the implementation, management and operation of a self-service bicycle sharing program within the City (the "Program"). NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto as follows: Page 5 of 63 The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the right to operate the following described concession within the Concession Service Zones and upon the Concession Areas (both as defined herein) in conformance with the purposes and for the period stated herein and subject to all the terms and conditions herein contained and fairly implied by the terms hereinafter set forth. Page 6 of 63 SECTION 1 DEFINITIONS Alternative Site Locations — Defined as bike share stations placed on private property, in another municipality's right of way, or on a property that is controlled or managed by an entity other than City. Annual Equipment Loss Report — Defined as an annual report listing all equipment that has been stolen, vandalized, not returned or destroyed. Annual Station Displacement Report — Defined as a report detailing such instances including locations, duration of displacement, reason for displacement, name/position of staff that requested the removal, other relevant details and the total credit amount and shall be submitted to the City Manager or his designee for approval Average Program Usage ("APU") - Defined as the average number of bicycle trips/uses per day per kiosk operating in the program during a given calendar month. Average Theft -Vandalism Rate ("ATVR") — Defined as the average number of acts of theft or vandalism per kiosk operating in the program within a given calendar month. Contract Year - Defined as that certain 365 day period commencing on the date of Operational Rollout. Bicycle Sharing & Rental Station - Defined as the following items located on a predetermined physical site: docking structure, Payment Kiosk, map display and program bicycles. Bicycle Sharing & Rental Program — Defined as A bicycle sharing program is comprised of an automated system in which bicycles are made available for shared use to individuals who do not own them. The central concept of these programs is to provide affordable access to bicycles for short -distance trips in an urban area as an alternative to motorized public transportation or private vehicles, thereby reducing traffic congestion, parking congestion, noise, and air pollution. Bicycle sharing systems have also been cited as an advantageous way to solve the "last mile" problem and connect users to public transit networks. Public bike sharing programs address some of the primary disadvantages to bicycle ownership, including loss from theft or vandalism, lack of parking or storage, and maintenance requirements. Such programs are also a favorable amenity for visitors to utilize without the need for an automobile for both transportation and leisure excursions. City Commission - Defined as the local legislative body of the City of Miami. Page 7 of 63 City Manager - is defined as the Chief Executive Officer and Administrative Head of the City of Miami. In the context of this Agreement the word City without further specification shall mean the City Manager or the Manager's authorized designee. Concession Area (s) — Defined as the actual physical site locations for the program's bike sharing and rental kiosks to be located upon. Concession Service Zone - Defined as the geographical scope of the program, and shall include all the Concession Areas within the City limits of Miami. Contract Year — Defined as the 365 day period commencing on the date of Operational Rollout. Execution Date of this Agreement - Defined as the date this Agreement has been signed by both parties. General Advertising Branding — Defined as the branding that consists of graphic representations of people, products, scenes, or services (not limited to a graphic representation of a corporate name, logo and/or slogan). Gross Sales Receipts — Defined as the income retained or accrued as a result of sales activity, derived by the Concessionaire under the privileges granted by this Agreement, including without limitation, Concessionaire's short-term bicycle rentals available at program stations/kiosks, bicycle sharing program membership subscription sales, sponsorship and advertising sales, excluding amounts of any Federal, State, or City sales tax, or other tax, governmental imposition, assessment, charge or expense of any kind, collected by the Concessionaire from customers and required by law to be remitted to the taxing or other governmental authority. High -Risk Concession Area (s) - Defined as a Concession Area (s) that experiences a rate of theft and/or vandalism 50% higher than the Average Theft -Vandalism Rate; or as may otherwise be reasonably demonstrated by Concessionaire to the City Manager or his designee. Kiosk Displacement — Defined as something which occurs when a station must be moved from an existing and approved concession site for any reason beyond the control or request of Concessionaire. Membership Reciprocity — Defined as the permission granted to bike share membership subscribers (not walk-up renters) by Concessionaire to access other bike sharing programs operated by Concessionaire in other municipalities without additional charges to such subscribers. Membership Subscription — Defined as a one-time or recurring membership that provides a user access to the bike share program, typically ranging from one week to one Page 8 of 63 year in duration. Users with a membership subscription can access any station and any bike in the program as many times a day as they desire. Bike checkouts under a membership must be docked at stations within a specific time period that corresponds with their membership type to promote turnover of the bikes, typically ranging from 30 to 60 minutes. Operational Ceiling - Defined as the maximum number of bicycles permitted to be operating and available to the public at any time under the terms of this agreement. Operational Minimum — Defined as the minimum number of bicycles permitted to be operating and available to the public at any time under the terms of this agreement. Operational Rollout — Defined as the first date that access to bicycles in the program of that phase is generally available to the public on a large scale. Payment Kiosk- Defined as the physical structure and housing for the electronic payment terminal equipment that allows users to access the bike sharing program with a membership card or credit card. Underutilized Concession Area (s) -- Defined as a Concession Area that falls 50% below the Average Program Usage, or as may otherwise be reasonably demonstrated by Concessionaire to the satisfaction of the City Manager or his designee. SECTION 2 TERM 2.1 Initial Term of Agreement The initial term of this Agreement shall be for five (5) years, commencing on the date of Operational Rollout of Phase I. The "Operational Rollout" date for Phase I shall be defined as the earlier of: (i.) the first date that access to bicycles in the program of that phase is generally available to the public; or (ii.) nine (9) months from the Effective Date of this agreement. Concessionaire shall provide the City Manager or his designee with written notice of the Operational Rollout date no later than thirty (30) days prior to the commencement of said date. This date shall be documented in the official City file for this Agreement. Should Concessionaire experience delays beyond its control while attempting to obtain materials, permits or other needed governmental approvals, the Operational Rollout Date shall be extended as needed by the City Manager at Concessionaire's request upon Concessionaire providing documentation of such for a period not exceeding six(6) months in total . The collection of security deposits (if any) by Concessionaire prior to the Operational Rollout date, as a part of the member subscription registration Page 9 of 63 process for the program or any free public demonstration periods, shall not be used in determining the Operational Rollout date. The Operational Rollout date may be extended by the City Manager, in writing, at his sole discretion, upon written request from Concessionaire, which notice shall state the reason for the request and the anticipated period of time requested. 2.2 Extension of Agreement Upon the expiration of the initial term, this agreement shall automatically renew on an annual basis, utilizing up to a maximum of five (5) one-year renewal terms so long as Concessionaire is not in default. 2.3 Contract Year For purposes of this Agreement, a "Contract Year" shall be defined as that certain 365 day period commencing on the date of Operational Rollout. SECTION 3. CONCESSION AREA(S) AND CONCESSION SERVICE ZONE. The City hereby grants to the Concessionaire the right, during the Term of this Agreement, to operate the concession, as described herein, generally, in the following Concession Service Zone and, specifically, upon the following Concession Areas (hereinafter such areas shall be referred to individually as a Concession Area, or collectively as the Concession Areas): 3.1 Concession Service Zone. Concession Service Zone (s) shall be defined as the geographical scope of the program, and shall include all the Concession Areas (as defined below and in Exhibit 2.2) within the city limits of Miami. 3.2 Concession Area (s) The Concession Areas are the actual physical site locations for the program's bike sharing and rental kiosks, as shown on Exhibit 2.2 (b), which shall be deemed to be approved by the City Manager or his designee, and attached and incorporated as a part of this Agreement. In selecting the Concession Areas for this Agreement, the parties agree that on -street parking spaces may be needed to place bike kiosks upon and the parties shall give consideration to minimizing the impact upon such parking spaces when possible. The parties further agree that kiosks should be placed in highly -visible locations to promote the highest and best use of the bike sharing program. 3.2.1 In the event that a Concession Area(s) indicated on the approved Exhibit 2.2 (b) Concession Areas map/list is subsequently found to be unsuitable for a kiosk location, Concessionaire and the City shall use Page 10 of 63 reasonable efforts in mutually cooperating to find a replacement Concession Area, within a distance equal to one (1) city block (600 linear feet), within thirty (30) days, and Exhibit 2.2(b)) shall be amended accordingly. The same procedure shall be followed for the addition of new Concession Areas. 3.2.2 Underutilized Concession Area (s) Upon request by Concessionaire, the City Manager or his designee shall deem a Concession Area an "Underutilized" by Concessionaire presenting usage data for that Concession Area which indicates that the quantity of daily rentals or member uses originating from or returning to that Concession Area falls 50% below the Average Program Usage (as defined below); or as may otherwise be reasonably demonstrated by Concessionaire to the satisfaction of the City Manager or his designee. In the event a Concession Area is determined to be underutilized, the City Manager or his designee shall use reasonable efforts to cooperate with Concessionaire to transfer to or create a new Concession Area, and shall amend Exhibit 2.2(b) accordingly. 3.2.3 High -Risk Concession Area (s) The City Manager or his designee may deem a Concession Area a "High -Risk" Concession Area, upon written request by Concessionaire to the City Manager or his designee, when its incidence of theft and/or vandalism is 50% higher than the Average Theft -Vandalism Rate; or as may otherwise be reasonably demonstrated by Concessionaire to the City Manager or his designee. The "Average Theft -Vandalism Rate" ("ATVR") shall be defined as the average number of acts of theft or vandalism per kiosk operating in the program within a given calendar month. The Concessionaire shall present usage data for the Concession Area in question which indicates that the rate of theft and/or vandalism is 50% higher than the Average Theft/Vandalism. In the event that the City Manager or his designee determines that a Concession Area is a High -Risk Concession Area, the City shall use reasonable efforts to cooperate with Concessionaire to transfer to or create a new Concession Area and shall amend Exhibit 2.2(b) accordingly. SECTION 4. USE(S) The Concessionaire is hereby authorized to conduct the following kind(s) of program related businesses and provide the following kind(s) of program related services within the Concession Area(s), all at its sole cost and expense: 4.1 Bicycle Sharing & Rental Services Page 11 of 63 Concessionaire shall provide bicycle sharing services and rentals at automated, self-service kiosks in the Concession Areas, on a short-term rental and subscription basis. The City herein approves the: (i.) types of bicycles, as set forth in Exhibit 3.1, attached hereto; and (ii.) prices for rental and/or subscriptions for same, as set forth in Exhibit 3.2.1, attached hereto. Any amendments to Exhibits 3.1 and/or 3.2.1, whether as to type of bicycles to be rented, or as to changes in prices, must be approved in writing by the City Manager or his designee prior to such changes being implemented within the Concession Area(s), and the respective exhibit(s) will be amended accordingly. Bicycle rental and subscription services shall be offered daily to patrons at all times during the Concession Area(s) hours of operation, as set forth in Section 9 hereof. Concessionaire may elect to provide staff at certain Concession Areas at its sole expense for customer service and/or marketing purposes. Concessionaire shall be permitted to distribute safety, instructional, promotional materials and samples at Concession Areas. Concessionaire may desire to add new technologies or equipment which may be developed in the future and are not contemplated under the Agreement. In the event Concessionaire determines a new type of equipment or technology not originally contemplated in the agreement should be used in the program, Concessionaire shall make a request, in writing, to the City Manager or his designee outlining the proposed new equipment or technologies and the advantages resulting from their implementation. The City Manager or his designee shall use reasonable efforts to approve or deny such request within thirty (30) days. In the event such a request is denied, the City Manager or his designee shall provide a detailed explanation stating why such changes or addition of new equipment/technology should not be implemented. Concessionaire shall integrate any approved new equipment and/or technology at Concessionaire's sole cost and responsibility and at no cost to the City. 4.1.1 All respective equipment within an individual Concession Area including, without limitation, the kiosks, bicycle stations, and bicycles (all of which may be hereinafter referred to collectively as the Equipment) shall be placed substantially in accordance with the approved Site Plan as shown in Exhibit 3.1.2. The parties agree and acknowledge that stations are modular and can be expanded as needed on a site by site basis, and such expansion does not materially deviate from the site plans in Exhibit 3.1.2. Stations, in general, will range from a capacity of 16 to 32 docks/locking mechanisms. Concessionaire shall not materially deviate from the Page 12 of 63 approved Site Plan and Site List without the prior written consent of the City Manager or his designee. 4.1.2 It is the City's intent, and Concessionaire hereby agrees and acknowledges, developing and promoting a world class bicycle rental and sharing program that is comparable to those found at other world class communities similar to the City of Miami. The condition and quality of Concessionaire's Equipment shall at all times adhere to the highest responsible ongoing maintenance standards. Concessionaire shall maintain its bicycles in good working order and repair and useable condition. At a minimum, this shall require the following: chain in good working order and free of rust; all moving components lubed; bicycle frame and fork structurally sound and in a clean condition; lights and reflectors functioning as designed; pedals in functional order; brakes functioning properly; handlebars properly attached and functional; tires inflated and free of excessive wear; wheels/spokes functional and free of excessive wear; seat in proper working order; all bolts and nuts properly secured and functioning as designed. See Exhibit 3.1 Concessionaire shall maintain the rental kiosks, bicycles, and bicycle racks in the Concession Areas in a good, clean working order and repair, including without limitation, keeping them free of graffiti. In the event that a kiosk or rack is damaged for any reason, Concessionaire shall, at a minimum, commence repairs within forty- eight (48) hours upon receiving notice from City, and, in any event, complete repairs or (if irreparable) replace the damaged kiosk or rack so that same is fully operational, no later than ten (10) days from the date Concessionaire first becomes aware (or should be aware) of the damage. If it is necessary for Concessionaire to order replacement equipment or materials, it shall be granted an equal extension in its repair/replacement timeline for such items. In the event that a bicycle is damaged for any reason, Concessionaire shall, at a minimum, commence repairs within forty- eight (48) hours upon receiving notice from the City and, in any event, complete repairs or (if irreparable) replace the damaged bicycle(s) within ten (10) days from the first date of removal (at which time the fully repaired bicycle or a replacement bicycle shall be put back into service). Following the Effective Date, the City may, at its option, request that Concessionaire provide it with a full inventory of all program Equipment, including types and numbers (per item); dates of lease Page 13 of 63 and/or purchase; and initial condition (established as of the date of inventory). Many small/light maintenance items may be done on -site by Concessionaire and/or its sub Concessionaires at Concession Areas to eliminate or minimize unit downtime, while moderate to heavy maintenance may require Equipment to be removed from circulation and serviced at Concessionaire's repair center. 4.2 Rental Kiosks and Bicycle Racks Concessionaire shall erect, install, operate, and maintain, at its sole cost and expense, and at no cost to the City, all program equipment within the Concession Areas contemplated in Exhibit 2.2. Concessionaire shall not erect, install, operate, or maintain additional kiosks and bicycle racks (unless Concessionaire is undertaking the repair or replacement of an existing kiosk or bicycle rack in an approved Concession Area), nor identify additional or alternate locations for same (other than as identified in Exhibit 2.2), without the prior written approval of the City Manager or his designee. Concessionaire shall provide, at its sole cost and expense, any and all design services including, but not limited to, architectural and engineering. services, as reasonably required for the design of the kiosks and bicycle racks. This shall include, without limitation, the following (as may be required to obtain permits by the City/County): preparation of schematic design documents consisting of drawings, site plans, elevations, samples as required to show the scale and relationship of the components and the design concept as a whole; and, based upon the schematic design documents, as approved by the City, design development documents which may consist of, but not be limited to, drawings, outline specifications and other documents necessary to fix and describe the size and character of the kiosks and bicycle racks in terms of architectural, structural (if any), and electrical (if any) systems, construction finish materials, and such other elements as the City may deem reasonably necessary and appropriate. The City shall issue a centralized `blanket' permit to the extent allowed by applicable laws, rules, regulations and standard operating procedures of the City, that covers all Concession Areas, including but not limited to a Right of Way permit and/or building permit. Concessionaire shall not be required to apply/obtain a specific localized City permit for each individual Concession Area; however, Concessionaire shall be required to furnish a typical site plan for each location. With regard to the design of the kiosks and bicycle racks, the Concessionaire may be required to participate in a number of public Page 14 of 63 presentations, workshops, community meetings, etc., as required for review and approval from regulatory bodies, and as may otherwise be deemed necessary by the City Manager, in his reasonable discretion. The Concessionaire herein warrants and represents to the City that any architects utilized by Concessionaire shall be duly licensed and admitted to practice architecture in the State of Florida pursuant to Chapter 481, Florida Statutes, and additionally possess the requisite occupational licenses from the City and the County. Any and all engineers required herein shall also be duly licensed and certified by the State of Florida to engage in the practice of engineering in Florida and additionally possess the requisite occupational licenses from the City and the County. The Concessionaire shall, at its sole cost and expense, fabricate, construct, and install (or cause to be fabricated, constructed, and installed) the kiosks and bicycle racks, based on the City approved design. Concessionaire shall be responsible for preparation of any and all plans and specifications for same, and shall be responsible for obtaining all required governmental approvals. All kiosks, bicycle racks, and similar improvements made or caused to be made by the concessionaire shall comply with applicable provisions of the Florida Building Code, State Statutes, County and City Code provisions and any other applicable laws, rules regulations and standard operating procedures of the City. In the event any notice or claim of lien shall be asserted against the property or interest of the City on account of or arising from any work done by or for Concessionaire, or any person claiming by, through or under Concessionaire, or for improvements or work, the cost of which is the responsibility of Concessionaire, Concessionaire agrees to have such notice or claim of lien cancelled and discharged within thirty (30) days after notice to Concessionaire by City. In the event Concessionaire fails to do so, City may terminate this Agreement for cause without liability to City. City shall not be liable for any claims, losses or damages suffered by third parties arising from Concessionaire's or its officers, agents, employees or Concessionaires; fabrication, construction, and installation of the kiosks and bicycle racks, unless caused by City's gross negligence or willful misconduct. In addition to the preceding sentence, Concessionaire shall maintain, or require that its Concessionaire(s) contractors, agents, and sub- contractors maintain same limits of liability as required by this agreement, including worker's compensation insurance in at least the minimum amounts required by Florida law, and shall provide to City a certificate evidencing such coverage, and listing the City of Miami as an additional insured. 4.2.1 Concessionaire's Project Schedule / Project Implementation & Launch Page 15 of 63 Phase I: As referenced in Exhibit 2.2(a), Phase I Concession Zone to include, but not necessarily limited to, the following city of Miami areas: the DDA area and central business district, Mary Brickell Village area, Brickell, Omni, Little Havana, Midtown, Coconut Grove, Biscayne corridor, Bayfront Park, Bayshore Drive (North and South), Museum Park, Bayside, and specifically including the Concession Areas enumerated in Exhibit 2.2(b) and attached hereto. The initial Operational Ceiling shall be 500 bicycles for Phase I. A guaranteed minimum of 35 bicycle sharing stations will be deployed in Phase I. The size and scope of the program, Operational Ceiling and placement of stations, may be modified as needed upon mutual consent of Concessionaire and the City Manager or his designee. 4.2.1.1 Project Schedule Within thirty (30) days from the execution date of this agreement, Concessionaire and City shall mutually agree upon a detailed schedule for permitting and installation of the kiosks and bicycle racks leading up to the Operational Rollout date; Said schedule, when completed, shall be attached and incorporated as Exhibit 3.3.1.1 to this Agreement (the Project Schedule). It is estimated that deployment will occur in approximately six (6) to nine (9) months from the signing of this agreement; however, this assumes little or no delays in the permitting and government approval processes. The Project Schedule, or specific dates thereon, may be extended upon written request from the Concessionaire, which notice shall state the reason for the request and the anticipated period of time requested, and subject to approval by the City Manager or his designee, in writing, at his sole discretion. Such approvals shall not be unreasonably withheld. 4.3 Operational Ceiling and Operational Minimum for Program 4.3.1 The Operational Ceiling shall be 500 bicycles for Phase I. The Operational Minimum number available to the public for Phase I shall be 300 bicycles. 4.3.2 The City Manager or his designee may authorize an increase in the Operational Ceiling on a temporary basis for special events or conventions, specifying the number of additional bicycles permitted to be in operation and the dates for which the increase applies to. Such Page 16 of 63 increases shall be authorized in writing by the City Manager or his designee prior to allowing any additional bicycles. City Manager and Concessionaire may agree to add additional stations within the area of the Phase I if it is determined and agreed that there are not enough locations to meet demand. 4.4 Hurricane Evacuation Plan Concessionaire agrees that any and all Equipment not permanently affixed or designed to withstand hurricane conditions, must be removed within twelve (12) hours from the issuance of a Hurricane Warning by the Miami - Dade County Office of Emergency Management, and stored at a private, off -site storage facility. Concessionaire shall begin to restock the fleet into the Concession Areas only upon receiving verbal or written notice to do so from the City Manager or his designee, and said restocking shall be completed within five (5) business days. SECTION 5 CONCESSION FEES 5.1 Revenue Sharing Revenue Sharing based on Percentage of Gross Advertising -Sponsorship Sales ("PG") or Minimum Guarantee Payments: Contract Year 1: In consideration for a single Minimum Guarantee Payment of $25,000.00 by Concessionaire, Concessionaire shall be exempt from sharing any revenues during the first year of operations of Phase I. The Year 1 Minimum Guarantee Payment shall be due and payable within thirty (30) days following the completion of the first year of operations for Phase I. Contract Years 2 through 10: Concessionaire shall furnish the city with the greater value of either: (a) Revenue Sharing as outlined in this section, or (b) a Minimum Guarantee Payment for each year this agreement is in effect: Minimum Guarantee Payment Format Year: Minimum Guarantee Payment: 1 $ 25,000.00 2 $ 35,000.00 3 $ 35,000.00 4 $ 40,000.00 5 $ 40,000.00 6 $ 40,000.00 7 $ 40,000.00 8 $ 45,000.00 9 $ 45,000.00 Page 17 of 63 10 $ 45,000.00 TOTAL $ 390,000.00 Revenue Sharing for General Advertising on Program Bikes. Commencing with the second year of operations of Phase I, an amount equal to 17% PG of Concessionaire's gross sales receipts derived solely from Concessionaire's On -Bike General Advertising sales, shall become due and payable by Concessionaire to the City fifteen (15) days following the end of each calendar month, (during each contract year throughout the Term). Revenue Sharing for General Advertising on Program Kiosks/Stations. Commencing with the second year of operations of Phase I an amount equal to 17% PG of Concessionaire's gross sales receipts derived solely from Concessionaire's sale of general advertising on program kiosks/stations, shall become due and payable by Concessionaire to the City fifteen (15) days following the end of each calendar month, (during each contract throughout the Term). Revenue Sharing for Bicycle & Kiosk Sponsorship. Commencing with the second year of operations of Phase I an amount equal to 5% PG of Concessionaire's gross sales receipts derived solely from Concessionaire's Bike & Kiosk Sponsorship Program (limited to organization name and logo), shall become due and payable by Concessionaire to the City fifteen (15) days following the end of each calendar month, (during each contract throughout the Term). The term "gross sales receipts," for the purposes of this agreement, is understood to mean "all income retained or accrued as a result of sales activity, derived by the Concessionaire from sponsorship and advertising sales as defined in this agreement, excluding amounts of any Federal, State, or City sales tax, or other tax, collected by the Concessionaire from customers and required by law to be remitted to the taxing or other governmental authority." This section is subject to the following exceptions: Sales of rentals and membership subscriptions shall be exempt from revenue sharing/concession fees. Such revenues shall not be included as a part of the gross sales receipts for the purposes of calculating revenue sharing payments/concession fees. Fees or commissions charged by, or due to, outside agencies for assisting Concessionaire in obtaining sponsors or advertisers shall not be subject to revenue sharing. Such sums of gross revenues originated by outside agencies shall be reduced by the amount of any commissions or fees due Page 18 of 63 for the purposes of calculating the revenue share payable to City on each such transaction. Concessionaire shall provide supporting documents for each such occurrence detailing the applicable commissions/fees. To alleviate an undue burden for actions of the public that are beyond Concessionaire's control, Concessionaire shall be entitled to an annual credit equal to the total cost of such stolen, vandalized, not returned or destroyed equipment, to be used towards any revenue sharing balances payable to City. At the end of each operational year, Concessionaire shall provide an annual report ("Annual Equipment Loss Report") listing all equipment that has been stolen, vandalized, not returned or destroyed. Concessionaire shall include location identifying where the theft, vandalism, or destroyed bikes took place. City will not be required to provide for any theft, vandalized or damaged equipment that did not take place within the City, or at stations on private property (Alternate Site Locations). This report shall include the cost of each such item and outline the total credit amount and shall be submitted to the City Manager or his designee. This credit shall be capped at a maximum amount not to exceed 5% of Concessionaire's annual gross revenues which are subject to the revenue sharing provisions of this agreement. Kiosk Displacement: In the event that the City requests the removal of a kiosk from circulation that is already installed, operational and upon a Concession Area, for any reason (including construction, events or otherwise), one of the following shall apply: (a.) Concessionaire shall be entitled to a credit to be applied towards any revenue sharing balances owed to city in the amount of $100 per day per displaced kiosk, to offset lost revenues for the time that such kiosk(s) is displaced and until it is reinstalled if no other reasonable and suitable location is made available in the immediate area to serve users in the same capacity. Additionally, a revenue sharing credit in the amount of $750 will be provided to Concessionaire for each instance of either a removal or reinstallation of each kiosk to accommodate such displacements of program kiosks. (b.) The City may provide a reasonable alternate temporary location to serve users in the same capacity to offset the kiosk removal. A revenue sharing credit in the amount of $750 will be provided to Concessionaire for each instance of either a removal or reinstallation of each kiosk. If improvements below grade are required to accommodate a temporary displacement and relocation of a kiosk, Concessionaire shall be entitled to a credit against revenue sharing payments equal to the cost of such improvements. Page 19 of 63 (c.) Concessionaire may request a reasonable alternate temporary location from the City Manager or his designee to serve users in the same capacity to offset the kiosk removal (assuming it does not require improvements below grade or other infrastructure improvements to accommodate the kiosk). A revenue sharing credit in the amount of $750 will be provided to Concessionaire for each instance of either a removal or reinstallation of each kiosk. If improvements below grade are required to accommodate a temporary displacement and relocation of a kiosk, Concessionaire shall be entitled to a credit against revenue sharing payments equal to the cost of such improvements. (d.)In the event that Concessionaire requests bicycle stations to be placed in areas for special events on a temporary basis, the City shall not be responsible for costs associated with such requests, including installation or removal of such stations. Concessionaire shall submit an annual report ("Annual Station Displacement Report") detailing such instances including locations, duration of displacement, reason for displacement, name/position of staff that requested the removal, other relevant details and the total credit amount and shall be submitted to the City Manager or his designee for approval. City Manager or his designee will provide a response within thirty (30) days of submission and not be unreasonably withheld. Delays caused by Concessionaire shall not be grounds for additional credit, once displacement has been requested. In order to make the program available to as many residents, visitors and areas as possible and to effectuate regional mobility and connectivity, Concessionaire may place stations/kiosks as needed on private property, in another municipality's right of way, or on a property that is controlled or managed by an entity other than City ("Alternative Site Locations"), at its sole discretion, so long as such installations comply with all applicable municipal codes and approval processes. Concessionaire shall notify the City Manager or his designee of any Alternative Site Locations inside city limits within 30 days following installation. Any revenues generated at kiosks placed on Alternative Site Locations shall not be subject to revenue sharing. To enhance the community's multimodal transportation capacity, Concessionaire shall, at its option, be permitted to vend and dispense 3rd party tickets or passes through its existing kiosk system for taxis, trains, trams, water taxi, bus and other multimodal transportation functions. Such revenues, if any, shall not be subject to revenue sharing. Page 20 of 63 5.1.2 Concessionaire, at its sole option, may permit its membership subscribers (not walk-up renters) derived under this agreement with the City to access other bike sharing programs operated by Concessionaire in Miami -Dade County without additional charges to such subscribers ("Membership Reciprocity"). Additionally, Concessionaire's membership subscribers from other programs in Miami -Dade County that are outside the scope of this agreement will also be permitted to access the City's bike sharing program without incurring additional charges. 5.2 Interest for Late Payment Any payment which Concessionaire is required to make to City which is not paid on or before the respective date provided for in this Agreement shall be subject to interest at the rate of eighteen (18%) percent per annum, or the maximum interest allowable pursuant to Florida law, whichever is greater, from the due date of payment until such time as payment is actually received by the City. 5.3 Sales and Use Tax Any required Florida State Sales and Use Tax, or similar State tax, levy, assessment or imposition shall be paid by Concessionaire directly or added to payments and forwarded to the City as part of said payments. It is the City's intent that it is to receive all payments due from Concessionaire as net of such Florida State Sales and Use Tax. SECTION 6. MAINTENANCE AND EXAMINATION OF RECORDS. Concessionaire shall maintain current, accurate, and complete financial records (on an accrual basis) related to its sale of advertisements and sponsorships for its operations referenced herein. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit by the City Manager or his designee, upon reasonable prior notice, whether verbal or written, and during normal business hours. Such records and accounts shall include, at a minimum, a breakdown of gross receipts, expenses, and profit and loss statements. In the event Concessionaire accepts cash as a form of payment, it shall maintain accurate receipt -printing cash registers or the like which will record and show the payment for every sale made or service provided in the Concession Areas; and such other records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. A monthly report of gross advertising and sponsorship receipts must be submitted to the City, directly to the City Manager or his designee, to be received no later than thirty (30) days after the close of each month (during each contract year throughout the Term). Page 21 of 63 Concessionaire shall also provide city with a monthly report detailing ridership data including but not limited to number of rides logged, miles traveled by the bike fleet, carbon offset, average ride time, calories burned by riders, number of members and rentals. The City shall additionally have the Inspection and Audit rights and remedies specified in § §18-100, 18-101 & 18-102 City Code, which are deemed as being incorporated by reference herein. SECTION 7. INSPECTION AND AUDIT Concessionaire shall maintain its financial records pertaining to its sale of advertisements and sponsorships for a period of five (5) years after the expiration or other termination of this Agreement, and such records shall be open and available to the City Manager or his designee, as deemed necessary by them. Concessionaire shall maintain all such records at its principal office, currently located at 41 NE 17 Terrace, Miami, Florida, 33132, or, if moved to another location, all such records shall be relocated, at Concessionaire's expense, to a location in Miami Beach, within ten (10) days' notice (written or verbal) from the City. Records will be provided to the City Manager or his designee in a standard digital format. The City Manager or his designee shall be entitled to audit Concessionaire's records pertaining to its sale of advertisements and sponsorships, as often as he deems reasonably necessary throughout the Term of this Agreement, and four (4) times within the five (5) year period following termination of the Agreement (regardless of whether such termination results from the natural expiration of the Term or for any other reason). The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five (5%) percent or more in Concessionaire's statement of gross receipts for any year or years audited, in which case Concessionaire shall pay to the City, within thirty (30) days of the audit being deemed final by the City, the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest. Concessionaire shall submit at the end of each contract year (throughout the Term), an annual statement of gross receipts for the sale of all advertisements and sponsorships, in a form consistent with generally accepted accounting principles. Additionally, such statement shall be accompanied by a report from an independent CPA firm. It is Concessionaire's intent to stay informed of comments and suggestions by the City regarding Concessionaire's performance under the Agreement. Upon request by the City Manager of his designee, within thirty (30) days after the end of each contract year, Concessionaire shall meet with the City Manager or his designee to review Concessionaire's performance under the Agreement for the previous contract year. At the meeting, Concessionaire and City may discuss quality, operational, maintenance and any other issues regarding Concessionaire's performance under the Agreement. Page 22 of 63 The provisions of Miami City Code Sections §18-101("Inspections") and § 18- 102("Audits") apply as supplemental terms to this Agreement and are deemed as being expressly incorporated by reference herein. SECTION 8. TAXES, ASSESSMENTS 8.1 Concessionaire Tax Responsibility Concessionaire agrees and shall pay before delinquency all taxes (including but not limited to Resort Taxes) and assessments of any kind levied or assessed upon a Concession Area or the Concession Areas, and/or on Concessionaire by reason of this Agreement, or by reason of Concessionaire's business and/or operations within a Concession Area or Areas. Concessionaire will have the right, at its own expense, to contest the amount or validity, in whole or in part, of any tax by appropriate proceedings diligently conducted in good faith. Concessionaire may refrain from paying a tax to the extent it is contesting the imposition of same in a manner that is in accordance with law. However, if, as a result of such contest, additional delinquency charges become due, Concessionaire shall be responsible for such delinquency charges, in addition to payment of the contested tax, if so ordered. Concessionaire shall also be solely responsible (at its sole cost and expense) for obtaining and maintaining current any applicable licenses or permits, as required for the operations contemplated in this Agreement including, without limitation, any occupational licenses required by law for the proposed uses contemplated in Section 3 and for each Concession Area (if required). 8.2 Procedure If Ad Valorem Taxes Assessed. If ad valorem taxes are assessed against a Concession Area or the Concession Areas (or any portion thereof) by reason of Concessionaire's business and/or operations thereon, Concessionaire shall be solely responsible for prompt and timely payment of same. SECTION 9. EMPLOYEES AND INDEPENDENT SUBCONTRACTORS 9.1 Concessionaire's Employees 9.1.1 Concessionaire shall select, train and employ such number of employees, vendors and subcontractors as is necessary or appropriate for Concessionaire to satisfy its responsibilities hereunder. Concessionaire shall be the sole authority to hire, Page 23 of 63 terminate and discipline any and all personnel, vendors or subcontractors employed by Concessionaire 9.1.2 Concessionaire shall designate a competent full-time employee to oversee the day-to-day operations, and who shall act as the contract administrator for the program and serve as Concessionaire's primary point -person with the City. This individual shall have the requisite amount of experience in operating, managing, and maintaining the program and operations contemplated herein. The employee shall be accessible to the City Manager or his designee at all reasonable times during normal business hours to discuss the management, operation and maintenance of the program, and within a reasonable time frame during non -business hours in the event of emergency. Consistent failure by the employee to be accessible shall be reported to Concessionaire's principal(s), and if not rectified, shall be grounds for replacement of the employee. 9.2 Identification Concessionaire's employees and/or contractors shall wear identification badges and uniforms, during all hours of operation when such employee or contractor is acting within the scope of such employment or such contractor relationship. All employees and/or contractors shall observe all the graces of personal grooming. The Concessionaire shall hire people to work in its operation who are neat, clean, well groomed, and who shall comport themselves in a professional and courteous manner. 9.3 Local Hiring Concessionaire shall make good faith efforts to hire new employees and/or contractors for the program from among unemployed workers in the City of Miami workforce. SECTION 10 HOURS OF OPERATION All Concession Areas and operations thereon shall be open every day of the year, weather or events of force majeure permitting, and shall be open to the public 24 hours per day, 365 days per year. Concessionaire may temporarily modify or reduce hours of operation as needed for the purpose of preserving the safety of the public, members, customers or equipment, for a period of up to thirty (30) days upon providing immediate notice to the City Manager or his designee. SECTION 11 IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION The Concessionaire accepts the use of any and all Concession Areas provided in this Agreement "AS IS," "WHERE IS," and "WITH ALL FAULTS," existing of at the Commencement Date. Page 24 of 63 Concessionaire assumes sole responsibility and expense for maintenance of the Concession Areas and all Equipment thereon. 11.1 Improvements In addition to the specific procedures set forth in Section 3.3 for the design, fabrication, construction, and installation of the kiosks and bicycle racks, Concessionaire shall also be solely responsible (including cost) and shall pay for the design, fabrication, construction, and installation of any and all other improvements to a Concession Area or Areas. Any plans for such improvements shall be submitted to the City Manager or his designee for the City's written approval. All improvements (including any made pursuant to Section 3.3) intended to be permanent and fixed shall remain the property of the City upon termination and/or expiration of this Agreement (no station, kiosk, bicycle, or rack is intended to be permanently affixed). Upon termination and/or expiration of this Agreement, all personal property and non -permanent trade fixtures may be removed from the Concession Areas by Concessionaire. Concessionaire will permit no liens to attach to the Concession Areas arising from, connected with, or related to the design, fabrication, construction, and installation of any improvements. Moreover, any permitted construction shall be accomplished through the use of licensed, insured, and reputable contractors who are acceptable to the City. Any and all approvals, permits, and or licenses required for the design, construction, and/or installation of improvements shall be the sole cost and responsibility of Concessionaire unless otherwise provided for herein. Concessionaire shall permanently display a directory map at each kiosk showing the Concession Zones and locations where kiosks are operational. Additionally, Concessionaire may provide maps and related printed materials at the kiosks for riders to take with them at no cost. These directory maps serve as a guide for riders and members of the public for general way finding purposes to help navigate the local area. Directory map listings for local organizations and attractions may be displayed on the kiosk directory map to encourage commerce in the area. Maps will be updated from time to time by Concessionaire as station locations are modified. Concessionaire shall pay for the costs associated with printing, posting and updating the maps. Page 25 of 63 11.1.2 Upon termination and/or expiration of this Agreement any and all improvements erected or installed in the Concession Areas (not intended to be permanent or fixed, but subject to the City's election in immediately following sentence) shall be removed by Concessionaire, at its sole cost and expense, in accordance with Subsection 13.7 hereof. Additionally, Concessionaire may also be required to remove any permanent or fixed improvements at the City Manager's sole discretion, upon written request from the City Manager or his designee. Any such improvements shall be promptly removed by Concessionaire, at its sole cost and expense, and Concessionaire shall restore the Concession Area or Areas to its/their original condition prior to the improvements being made. Any improvements made below grade (such as concrete footers installed in asphalt -covered parking spaces) shall remain in place permanently and not subject to removal upon expiration of this agreement. 11.2 Maintenance/Repair The Concessionaire shall maintain, at its sole cost and expense, the Concession Areas and any Equipment thereon (as required to operate the program). 11.2.1 Concessionaire shall be solely responsible for the day to day operation, maintenance and repair of all Concession Areas. Concessionaire shall maintain the Concession Areas and any Equipment thereon in good working order and condition. Concessionaire shall keep all Equipment free of graffiti. 11.2.2 All damage of any kind to a Concession Area and any Equipment thereon shall be the sole obligation of Concessionaire, and shall be repaired, restored or replaced promptly by Concessionaire, at its sole cost and expense, to the reasonable satisfaction of the City Manager or his designee. In the event any Equipment is lost, stolen, or damaged, it shall be promptly replaced or repaired by Concessionaire no later than thirty (30) days from the date of loss, theft, or damage. If such materials are not typically stocked by Concessionaire, Concessionaire shall alternatively provide proof of ordering such materials within thirty (30) days. 11.2.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to or better than the original work (or Equipment) and shall be done in good and workmanlike manner. 11.2.4 If Concessionaire fails to make such repairs, restorations and/or replacements to a Concession Area and/or to any particular Equipment thereon, the same may be made by the City, at the City's sole option and discretion, but not its obligation. Concessionaire Page 26 of 63 shall be responsible for any reasonable costs associated therewith, and shall reimburse the City within ten (10) days after rendition of a bill or statement. This shall not apply to program bicycles and kiosks as they are Concessionaire's propriety equipment. 11.2.5 It shall be Concessionaire's sole obligation to insure that any renovations, repairs and/or improvements made by Concessionaire to the Concession Areas comply with all applicable building codes and life safety codes of governmental authorities having jurisdiction. 11.3 Orderly Operation The Concessionaire shall have a neat and orderly operation at all times and shall be solely responsible for the necessary housekeeping services to properly maintain the Concession Areas and any Equipment thereon. The Concessionaire shall make available all Equipment within a Concession Area for examination by the City Manager or his authorized representative, upon reasonable verbal and/or written notice from the City. 11.3.1 Concessionaire agrees, also at its sole cost and expense to pay for all garbage disposal generated by its operations and may erect refuse bins as needed. 11.3.2 Concessionaire agrees, at its sole cost and expense, to sweep the Concession Areas as needed in the event that street sweepers cannot operate in the constrained area in order to keep Concession Areas generally free of dirt and debris. 11.4 No Dangerous Materials The Concessionaire agrees not to use or permit the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida, on or within any of the Concession Areas, or on any City property and/or right of way. Concessionaire shall indemnify and hold City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by Concessionaire of any "hazardous substance" or "petroleum products" on, under, in or upon the Concession Areas as those terms are defined by applicable Federal and State Statute, or any environmental rules and environmental regulations promulgated thereunder; provided, however, Concessionaire shall have no liability in the event of the willful misconduct or gross negligence of the City, its agents, servants or employees. The provisions of this Subsection 10.5 shall survive Page 27 of 63 the termination or earlier expiration of this Agreement. 11.5 Security The Concessionaire shall be responsible, at its sole option, to employ or provide reasonable security measures, as it may deem necessary to protect the Concession Area and any Equipment thereon. Under no circumstances shall the City be responsible for the replacement of any stolen or damaged Equipment, nor shall City be responsible for the replacement of any stolen or damaged personal property of Concessionaire's employees, Concessionaires, agents, patrons, guests, invitees, and/or other third parties. Notwithstanding the preceding paragraph, Concessionaire shall not be obligated to have a duty to provide security services (whether manned or automated) to patrons using the program, as the program is contemplated as an unattended self-service and automated system. Concessionaire may employ video surveillance and recording as it deems practical and necessary for the safe protection of its equipment. City and Concessionaire understand that bicycle theft has been identified as a problem in other bicycle sharing programs. One of the potential causes for theft may be that the locking mechanism may leave inexperienced users of these types of bike sharing programs unsure of whether their bicycle is properly locked. Accordingly, in order to deter theft, Concessionaire shall prominently disclose on each kiosk, in visible, plain, easy to read/understand language and/or symbols, the proper procedure(s) for safely docking and locking a bike into the bike docking station. Similarly, Concessionaire shall utilize a locking system that clearly indicates to users when a bicycle has been fully and properly locked. Concessionaire shall also place a clearly visible, legible disclaimer on kiosks, and on patron/customer receipts, advising users that program bikes do not come equipped with individual locks and that neither City nor Concessionaire shall be liable or otherwise responsible to users if the bicycle is stolen while in use (including bicycles that are not properly locked at the conclusion of use). 11.6 Inspection The Concessionaire agrees that any Concession Area (including, without limitation, any Equipment thereon) may be inspected at any time by the City Manager or his designee, or by any other municipal, County, State officer, or officers of any other agency(ies) having responsibility and/or jurisdiction for inspections of such operations. The Concessionaire hereby waives all claims against the City for compensation for loss or damage sustained by reason of any interference with the concession operation as a result of inspection by any public agency(ies) or officials, (including, without Page 28 of 63 limitation, by reason of any such public agency or official in enforcing any laws, ordinances, or regulations as a result thereof). Any such interference shall not relieve the Concessionaire from any obligation hereunder. SECTION 12 INSURANCE Within ten (10) days after the execution of this Contract by both parties, and throughout the term of this Contract, the Concessionaire shall furnish Evidence of Insurance to the Purchasing Department, if applicable. Submitted evidence of coverage shall demonstrate strict compliance to all requirements listed on the Special Conditions entitled "Insurance Requirements." The City shall be listed as an "Additional Insured." This Contract is contingent upon the receipt of proper insurance documents required by this Contract. The Concessionaire shall furnish to the City of Miami c/o Risk Management, 444 SW 2nd Avenue, 9th Floor, Miami FL, 33130, Certificate(s) of Insurance which indicate that insurance coverage has been obtained which meet the requirements as outlined below: A. I. Commercial General Liability Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations $1,000,000 Personal and Advertising Injury $1,000,000 B. Endorsements Required: City of Miami included as an Additional Insured Contingent &Contractual Liability Premises/Operations Liability II. Business Automobile Liability (if applicable) A. Limits of liability Bodily Injury and Property Damage Liability combing single limit: Any auto including hired, borrowed or non -owned autos, any one accident $300,000 B. Endorsements required: City of Miami included as additional insured III. Worker's Compensation limits of liability statutory State of Florida Waiver of Subrogation A. Employer's Liability Limits of Liability • $100,000 for bodily injury caused by an accident, each accident. • $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following Page 29 of 63 qualifications, shall issue all insurance policies required above. Should Concessionaire fail to obtain, maintain or renew the policies of insurance referred to above, in the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums expended by City in obtaining said insurance, shall be repaid by Concessionaire to City, plus ten (10%) percent of the amount of premiums paid to compensate City for its administrative costs. If Concessionaire fails to repay City's expenditures within fifteen (15) days of demand such failure shall be deemed an event of default, and the total sum owed shall accrue interest at the rate of twelve (12%) percent until paid. SECTION 13 INDEMNITY 13.1 Indemnification Concessionaire shall hold harmless, indemnify and defend the City, its officers, agents, directors, and employees, from liabilities, damages, losses, judgments, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness, negligent act or omission, or intentional wrongful misconduct of Concessionaire and persons employed or utilized by Concessionaire in the performance of this Contract. Concessionaire shall, further, hold the City, its officials and employees, harmless for, and defend the City, its officials and/or employees against, any civil actions, statutory or similar claims, regarding injuries or damages arising in any way out of, or resulting from, the Concessionaire's performance of the professional services described in the Scope of Services, the permitted work required under this Contract, or the performance of this Contract, even if it is alleged that the City, its officials and/or employees were negligent. In the event that any action or proceeding is brought against the City by reason of any such claim or demand, Concessionaire shall, upon written notice from City, defend such action or proceeding by counsel satisfactory to City. The Concessionaire expressly understands and agrees that any insurance protection required by this Contract or otherwise provided by the Concessionaire shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents and instrumentalities as herein provided. The indemnifications provided above shall obligate Concessionaire to defend, at its own sole expense, to and through appellate, supplemental or bankruptcy proceeding, to provide for such defense, any and all claims of liability and all suits and actions of every name and description which may be brought against the City within the scope of the above -described indemnifications. These indemnifications will survive the cancellation or expiration of the Contract. These indemnifications will be interpreted under the laws of the State of Florida, including without limitation and interpretation, which Page 30 of 63 conforms to the limitations of §725.06 and/or §725.08, Fla. Statutes, as amended and as applicable. Concessionaire shall require all Sub -contractor agreements to include a provision that they will indemnify the City. The Concessionaire agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Concessionaire in which the City participated either through review or concurrence of the Concessionaire's actions. In reviewing, approving or rejecting any submissions by the Concessionaire or other acts of the Concessionaire, the City in no way assumes or shares any responsibility or liability of the Concessionaire or Sub -Contractors, under this Agreement. Ten dollars ($10) of the payments made by the City constitute separate, distinct, and independent consideration for the granting of these indemnifications, the receipt and sufficiency of which is acknowledged by the Concessionaire. 13.2 Force Maieure Neither party shall be obligated to perform hereunder and neither party shall be deemed to be in default if performance is prevented by: a. Any act or chain of related acts resulting in Equipment destruction, vandalism or theft which renders at least fifty (50%) percent of the Concessionaire Areas in the Concession Service Zone unusable at any one point in time and which is not caused by negligence of Concessionaire; b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil commotion occurring which renders at least fifty (50%) percent of the Concession Areas in the Concession Service Zone unusable. c. any law, ordinance, rule, regulation or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, or war which renders at least fifty (50%) percent of the Concession Areas in the Concession Service Zone unusable. 13.3 Labor Dispute In the event of a labor dispute which results in a strike, picket or boycott affecting at least fifty (50%) percent of the Concession Areas within the Concession Service Zone, Concessionaire shall not thereby be deemed to be in default or to have breached any part of this Agreement, unless such dispute shall have been caused by illegal labor practices or violations by Concessionaire of applicable collective bargaining Agreements (and there has been a final determination of such fact which is not cured by Concessionaire within thirty (30) days). Page 31 of 63 13.4 Waiver of Loss from Hazards The Concessionaire hereby expressly waives all claims against the City for loss or damage sustained by the Concessionaire resulting from any Force Majeure contemplated in Subsection 12.5 and Labor Dispute in Subsection 12.6 above, and the Concessionaire hereby expressly waives all rights, claims, and demands against the City and forever releases and discharges the City of Miami, Florida, from all demands, claims, actions and causes of action arising from any of the aforesaid causes. SECTION 14. DEFAULT AND TERMINATION Subsections 14.1 through 14.3 shall constitute events of default under this Agreement. An event of default by Concessionaire shall entitle City to exercise any and all remedies described as City's remedies under this Agreement, including but not limited to those set forth in Subsection 14.4 and Section 15. 14.1 Bankruptcy If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 14.2 Default in Payment In the event Concessionaire fails to submit any payment within five (5) days of its due date, there shall be a late charge of Fifty ($50.00) Dollars per day for such late payment, in addition to interest at the highest rate allowable by law. If any payment and accumulated penalties are not received within fifteen (15) days after the payment due date, and such failure continues fifteen (15) days after written notice thereof, then the City may, without further demand or notice, terminate this Concession Agreement without being prejudiced as to any remedies which may be available to it for breach of contract; and may begin procedures to collect the Performance Bond required in Section 14 herein. 14.3 Non -Monetary Default In the event that Concessionaire or the City fails to reasonably perform or Page 32 of 63 observe the non -monetary covenants, terms or provisions under this Agreement, and such failure continues ninety (90) days after written notice thereof from the other party hereto, such non -defaulting party may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. In the event that a default is not reasonably susceptible to being cured within such period, the defaulting party shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default, but in no event shall such extended cure period exceed ninety (90) days from the date of written notice thereof. In the event Concessionaire cures any default pursuant to this subsection, it shall promptly provide the City Manager with written notice of same. 14.4 City's Remedies for Concessionaire's Default If any of the events of default, as set forth in this Section, shall occur, the City may, after expiration of the cure periods, as provided above, at its sole option and discretion, institute such proceedings as in its opinion are necessary to cure such defaults and to compensate City for damages resulting from such defaults, including but not limited to the right to give to Concessionaire a notice of termination of this Agreement. If such notice is given, the term of this Agreement shall terminate upon the date specified in such notice from City to Concessionaire. On the date so specified, Concessionaire shall then quit and surrender the Concession Area(s) to City pursuant to the provisions of Subsection 13.7. Upon the termination of this Agreement, all rights and interest of Concessionaire in and to the Concession Area(s) and to this Agreement, and every part thereof, shall cease and terminate and City may, in addition to any other rights and remedies it may have, retain all sums paid to it by Concessionaire under this Agreement, including but not limited to, the Performance Bond in Section 15 herein. In addition to the rights set forth above, the City shall have the rights to pursue any and all of the following: a. the right to injunction or other similar relief available to it under Florida law against Concessionaire; and or b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Concessionaire's default. 14.5 Default by the City If an event of default by the City shall occur, the Concessionaire may, after expiration of the cure periods, as provided above, terminate this Agreement Page 33 of 63 upon written notice to the City. Said termination shall become effective upon receipt of a written notice of termination by the City, but in no event shall Concessionaire specify a termination date that is Tess than sixty (60) days from the date of the written termination notice. On the date specified in the notice, Concessionaire shall quit and surrender the Concession Area(s) to City pursuant to the provisions of Subsection 14.7. 14.6 Surrender of Concession Areas / Removal by Concessionaire of Equipment/Improvements Upon expiration, or earlier termination of this Agreement, Concessionaire shall surrender the Concession Areas in the same condition as the Concession Areas were prior to the Commencement Date, reasonable wear and tear accepted. Concessionaire shall, at its sole expense and at no charge to the City, remove all Equipment from the Areas, (as well as any other permanent or fixed improvements if so requested by the City Manager or his designee) no later than ninety (90) days after the conclusion of the Term, (or from the date of other termination of this Agreement) unless a longer time period is agreed to, in writing, by the City Manager). Concessionaire's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of any Concession Areas after termination of the Agreement shall constitute trespass by the Concessionaire, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City One Thousand ($1,000.00) Dollars per day per Area as liquidated damages for such trespass and holding over. If the Concessionaire fails to remove such equipment in accordance with the terms and conditions of this agreement, the City shall have the right to remove such equipment and supplies at the expense of Concessionaire. 14.7 Substitute Performance In the event that the Concessionaire fails to properly perform the removal of any Equipment and restoration of the Concession Areas to their original condition, except as otherwise provided herein, in accordance with the terms of the Agreement, then the City shall have the right to undertake and/or purchase, as the City Manager deems appropriate, any such supplies, materials, services, etc., covered herein and to charge Concessionaire for all reasonable costs thereby incurred by the City. Concessionaire shall be responsible for paying all of said costs. SECTION 15. PERFORMANCE BOND OR ALTERNATE SECURITY Concessionaire shall, on or before the Operational Rollout date, furnish to the City Manager or his designee a Performance Bond in the penal sum stated below for the Page 34 of 63 payment of which Concessionaire shall bind itself for the faithful performance of the terms and conditions of this Agreement. A Performance Bond, in the amount of Twenty Five Thousand ($25,000.00) Dollars, shall be provided by the Concessionaire in faithful observance of this Agreement. A cash deposit, irrevocable letter of credit, or certificate of deposit may also suffice, as determined by the City Manager or his designee, in his sole and reasonable discretion. The form of the Performance Bond or alternate security shall be approved by the City's Chief Financial Officer. In the event that a Certificate of Deposit is approved, it shall be a Twenty Five Thousand ($25,000.00) Dollar one-year Certificate of Deposit in favor of the City, which shall be automatically renewed, the original of which shall be held by the City's Chief Financial Officer. Concessionaire shall be so required to maintain said Performance Bond or alternate security in full force and effect throughout the Term of this Agreement. Concessionaire shall have an affirmative duty to notify the City Manager or his designee, in writing, in the event said Performance Bond or alternate security lapses or otherwise expires. All interest that accrues in connection with any financial instrument or sum of money referenced above shall be the property of Concessionaire, except in an event of default, in which case the City shall be entitled to all interest that accrues after the date of default. SECTION 16. ASSIGNMENT Concessionaire shall not assign all or any portion of its costs or obligations under this Agreement without the prior written consent of the City Manager, which may not be unreasonably withheld, conditioned, denied or delayed. The City has relied on Concessionaire's experience, skill, reputation, ability and knowledge in selecting it to operate this program and may refuse an assignee that does not meet the City's objectives in the sole opinion of the City Manager. Concessionaire shall notify the City Manager of any proposed assignment, in writing, at least sixty (60) days prior to the proposed effective date of such assignment. In the event that any such assignment is approved by the City Manager, the assignee shall agree to be bound by all the covenants of this Agreement required of Concessionaire and shall first execute an assignment and Assumption of this Agreement in a form satisfactory to the City Manager and City Attorney. SECTION 17. INTELLECTUAL PROPERTY; SPONSORSHIPS; ADVERTISEMENT 17.1 Sponsorships Directly Relating to use of City Logo or Likeness: The City reserves unto itself all present and future rights to negotiate all forms of endorsement and/or sponsorship agreements based on the marketing value of any City trademark, property, brand, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark property, brand, logo and/or reputation, shall belong exclusively to the City. Concessionaire shall be specifically prohibited from entering into, or otherwise creating any, sponsorships and/or endorsements with third parties which are based solely or in any part on the marketing value of a City Page 35 of 63 trademark, property, brand, logo and/or reputation. The prohibition on Concessionaire entering into such sponsorship and/or endorsement Agreements utilizing the City's property, trademark, logo, brand and reputation, as defined above in this Section, shall not be interpreted to include nor prohibit the Concessionaire's right to sell or obtain sponsorships relating to Concessionaire's own assets or intellectual property, or to rent, or use, exclusively, any particular brand or product that would be permitted for use, sale, or rental pursuant to this Agreement. Moreover, the City will not limit Concessionaire's ability to negotiate a reduced rate for purchase, from any vendor, whose product(s) Concessionaire uses or offers for sale or rent pursuant to this Agreement. Sponsorships Directly Relating to Concessionaire's Assets, Operations, Reputation, Equipment, Brand, Logos, Likeness and Intellectual Property: It is further acknowledged that the name, likeness, equipment, concepts, logos, program operations, designs and other intellectual property rights of Deco Bike, LLC. shall remain in the exclusive possession and control of Concessionaire at all times; provided, however, that Concessionaire hereby grants City an irrevocable license to use any DecoBike, LLC trademark, brand, and/or logo, for purposes of the City's promotion of the program and including, without limitation, the right to use such trademarks, brand, and/or logo in all media (for such public marketing purposes) whether now existing or as may exist in the future. Program Name: The right to name, re -name or create a program title to any of Concessionaire's bicycle sharing operations and programs is at the sole discretion of Concessionaire as it deems necessary, including but not limited to assigning title or naming rights to a 3rd party organization for a fee not subject to revenue sharing. Equipment Sponsorship: Concessionaire shall be permitted to offer sponsorships to organizations which would permit an organizational logo, name, and slogan to be placed upon program kiosks and/or bicycles. The City shall draft and approve ordinances, or modifications of ordinances, as needed to effectuate and protect this sponsorship program granted to Concessionaire under this agreement and in the format described in, and be subject to, the guidelines in Exhibit 16.1, attached hereto. 17.2 Advertisements To the extent it is allowed by applicable laws, codes, rules and regulations The City acknowledges that Concessionaire may in such case sell and display limited general commercial advertising upon program bicycles and kiosks. The City shall draft and approve ordinances, or modifications of ordinances, necessary to effectuate and protect the advertising rights granted to Concessionaire under this agreement and in the format Page 36 of 63 described in, and be subject to, the guidelines in Exhibit 16.2, attached hereto. Any advertisements displayed on program equipment shall comply with all Federal, State, Miami -Dade County, and City of Miami laws, rules, regulations, ordinances, and codes, including, but not limited to, those pertaining to and/or related to billboards, outdoor advertisements, and other related signage, as applicable. In addition, the construction, materials, content and appearance of any Advertisements to be installed on program equipment must be allowable and, if allowed, shall comply with such other and future requirements as Federal, State, County, and City authorities may from time to time impose, including, but not limited to, public safety, building and zoning requirements. Accordingly, any Advertisements failing to comply with any applicable Federal, State, County, and City provisions shall and must be removed by Concessionaire, at its sole cost and expense, within five (5) business days from receipt of written notice from the City Manager or his designee. In the event such Advertisements are not removed within said time period, the City may, at its sole option and discretion, fine Concessionaire $100 per day per each non -compliant advertisement until such advertisements are brought into compliance. This section shall not limit City's ability to seek other remedies as provided in this agreement. The permissible content of Advertisements shall not include firearms, tobacco products, or be of a sexually offensive nature. SECTION 18 NO IMPROPER USE The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, any Concession Areas or improvements on equipment thereon, for any illegal, improper, immoral or offensive purpose, or for any other purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. The Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officials, employees, contractors, and agents from and against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of the Concessionaire, or any official, director, agent, , or servant regarding the concession. In the event of any violation by the Concessionaire, or if the City or its authorized representative shall deem any conduct on the part of the Concessionaire to be objectionable or improper, the City shall have the right to suspend concession operation should the Concessionaire fail to correct any such violation, conduct, or practice to the Page 37 of 63 satisfaction of the City Manager or his designee within twenty-four (24) hours following written notice of the nature and extent of such violation, conduct, or practice. Such suspension to continue until the violation is cured to the satisfaction from the City Manager or his designee. SECTION 19 PRICE SCHEDULES Concessionaire agrees that prices charged for bicycle rentals and membership subscriptions will be consistent with the price schedule(s) (herein submitted by the Concessionaire and approved by the City), in Exhibit 3.2.1 attached hereto. All subsequent price approvals and changes must be approved in writing by the City Manager or his designee. The City shall have the final right of approval for all such price changes, but said approval shall not be arbitrarily or unreasonably exercised. Concessionaire shall be permitted to offer promotional membership and rental opportunities which shall not be restricted by the City or require city approval. SECTION 20 NOTICES All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to the Concessionaire at the following address: With copies to: Deco Bike, LLC. 41 NE 17 Terrace Miami, FL 33132 Attn: Ricardo Pierdant Ozzie Schindler, Esq. Greenberg & Traurig, LLP. 1221 Brickell Avenue Miami, FL 33131 All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested to the City of Miami at the following addresses: City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 Page 38 of 63 The Concessionaire and the City may change the above mailing address at any time upon giving the other party written notification. All notices under this Concession Agreement must be in writing. SECTION 21 LAWS 21.1 Compliance Concessionaire shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations, including but not limited to all applicable environmental City, County, State, and Federal ordinances, statutes, rules and regulations. 21.2 Governing Law This Agreement shall be interpreted and construed under the laws of the State of Florida, Miami —Dade County and the City of Miami regardless of choice of law principles.. Each party shall bear their own attorney's fees 21.3 Equal Employment Opportunity Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or pursuant hereto, will discriminate against any employee or applicant for employment because of race, creed, sex, color, national origin, sexual orientation, and disability (as defined in Title of ADA). Concessionaire will take affirmative steps to utilize minorities and females in the work force and in correlative business enterprises. 21.4 No Discrimination The Concessionaire agrees that there shall be no discrimination as to race, sex, sexual orientation, color, creed, national origin, familial status, religion or handicap, in the operations referred to in this Agreement; and, further, there shall be no discrimination regarding any use, service, maintenance, or operation within the Concession Areas. All operations and services offered in the Concession Areas shall be made available to the public, subject to the right of the Concessionaire and the City to establish and enforce reasonable rules and regulations to provide for the safety, orderly operation, and security of the Areas and improvements and equipment thereon. 21.4.1 Concessionaire by executing this Agreement, certifies that it does not discriminate in its membership or policies based on race, color, national origin, religion, sex, sexual orientation, familial status or handicap. 22.4.2 Equal Benefits Requirements SECTION 22 MISCELLANEOUS Page 39 of 63 22.1 No Partnership Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the City and Concessionaire. 22.2 Modifications This Agreement cannot be changed or modified except by Agreement in writing executed by all parties hereto. Concessionaire acknowledges that no modification to this Agreement may be agreed to by the City unless approved by the Mayor and City Commission except where such authority has been expressly provided herein to the City Manager or his designee. 22.3 Complete Agreement This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and Agreements of whatsoever nature or kind existing between the parties with respect to Concessionaire's operations, as contemplated herein. 22.4 Headings The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 22.5 Binding Effect This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 22.6 Clauses The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 22.7 Severability If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified shall. 22.8 Right of Entry Page 40 of 63 The City, at the direction of the City Manager, shall at all times during hours of operation, have the right to enter into and upon any and all parts of the Concession Area(s) for the purposes of examining the same for any reason relating to the obligations of parties to this Agreement. 22.9 Not a Lease It is expressly understood and agreed that no part, parcel, building, facility, equipment or space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that the Concessionaire's exclusive right to operate the concession and occupy the Concession Areas shall continue only so long as this Agreement remains in effect. 22.10 Signage Concessionaire shall provide, at its sole cost and expense, any signs utilized for its program. All signage and postings shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. Any signage posted by Concessionaire shall be subject to the prior approval of the City as to size, shape and placement of same, and no such approvals will be unreasonably withheld. City shall be responsible to provide, at its sole cost and expense, and as (or if) it deems necessary in its sole and reasonable judgment and discretion, any traffic, regulatory or public safety signs, whether related directly or indirectly to the program and/or other aspects of bicycle, vehicular or pedestrian safety. 22.11 Procedure for Approvals and/or Consents In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, it is acknowledged that such authority has been expressly provided herein to the City Manager or his designee by the Mayor and City Commission of the City. In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, Concessionaire shall send to the City Manager a written request (delivery via email, overnight courier or postal service is acceptable) for approval or consent (the "Approval Request"). The City Manager or his designee shall use reasonable efforts to provide written notice to Concessionaire approving of consent to, or disapproving of the request, within thirty (30) days from the date of Approval Request (or within such other time period as may be expressly set forth for a particular approval or consent under this Agreement). However, the City Manager or his designee's failure to consider such request within this time provided shall not be deemed a waiver, nor shall Concessionaire assume that the request is automatically approved and consented to. The City Manager or his designee shall not unreasonably withhold such approval or consent. This Subsection shall not Page 41 of 63 apply to approvals required herein by the Mayor and City Commission. 22.12 No Waiver 22.12.1 22.12.2 22.12.3 It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred, will not be considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. The receipt of any sum paid by Concessionaire to the City after breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupation, and not as rent, unless such breach be expressly waived in writing by the City. 22.13 No Third Pary Beneficiary Nothing in this Agreement shall confer upon any person or entity, including, but not limited to sub concessionaires, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. 22.14 Proposal Documents "Proposal Documents" shall mean Request For Proposals No. 275267 For a Self -Service Bicycle Sharing & Rental Program, issued by the City in contemplation of this Agreement, together with all amendments thereto, if any, and the Consultant's proposal in response thereto (Proposal), which is incorporated by reference in this Agreement and made a part hereof; provided, however, that in the event of an express conflict between the Proposal Documents and this Agreement, this Agreement shall prevail. SECTION 23 LIMITIATION OF LIABILITY The City desires to enter into this Agreement placing the operation and management of the Concession Area(s) in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action arising out of this Agreement, Page 42 of 63 so that its liability for any such breach never exceeds the sum of One Hundred Thousand ($100,000.00) Dollars. Concessionaire hereby expresses its willingness to enter into this Agreement with a One Hundred Thousand ($100,000.00) Dollar limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of One Hundred Thousand ($100,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be liable to Concessionaire for damages to Concessionaire in an amount in excess of One Hundred Thousand ($100,000.00) Dollars, for any action for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. SECTION 24 VENUE This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA(S). SECTION 25 CITY'S CONTRIBUTION TO PROGRAM 1. Provide permanent banners and links on city's website. 2. Provide ongoing PSA and promo video clips on city's television station. 3. Ongoing features in city magazines, newsletters, mailouts. 4. Promotional email blasts to staff at least quarterly. 5. City Permit fees to be waived. 6. Coordinate to provide dedicated loading sites for the temporary storage space for cargo containers to place bikes and stations in the event of hurricane, public unrest, act of god or other major disaster or threat to the safety of the equipment. Such location to be determined upon mutual agreement by Concessionaire and City. Storage and placement will be at Concessionaire's cost, the City will work to coordinate available locations to place containers. 7. Provide assistance and coordination to incorporate bike share kiosks at or near major events and conventions on a temporary basis to serve as alternative transportation, including but not limited to the Boat Show, Ultra, 4th of July celebrations, New Year's Eve celebrations, city birthday celebrations, Cirque de Soleil, any concerts at Bayfront and Bicentennial parks or other similar events. Page 43 of 63 8. Integrate bike share program in a promotional and/or PSA format into major city events and city -sanctioned events to increase marketing exposure including a display or booth at no charge (or any major event on city property). 9. Declare the bike sharing program to be an official "green" transportation system for the city. 10.City shall be responsible for the installation and maintenance of all bicycle safety and awareness signage inside the city. Concessionaire shall not be obligated to install or erect any such signage. 11.Provide program launch announcements, updates and safety awareness campaigns through digital billboards, bus shelter posters and other PSA/public event announcement mediums the city has cost-free access to when possible. Concessionaire to cover costs of printing and artistic development of any such campaigns. IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year first above written, indicating their Agreement. Attest: CITY OF MIAMI, FLORIDA Todd Hannon, CITY CLERK Johnny Martinez, P.E. CITY MANAGER Attest: DECO BIKE, LLC. Page 44 of 63 Signature/Secretary Ricardo Pierdant, PRESIDENT Print Name Approved as to Insurance: Calvin Ellis, Risk Management Director Approved as to Legal Form for the use and benefit of the City of Miami only: Julie O. Bru, City Attorney Page 45 of 63 EXHIBITS Page 46 of 63 Exhibit 2.2 (a) Concession Zone (approximate) Page 47 of 63 Exhibit 2.2 (b) Concession Areas List STATION LOCATION NUMBER Grand Ave & Main Highway Main Highway & Commodore Plaza Grand Ave & Fuller Street 2889 Mc Farlane Rd Virginia Street & Florida Ave Grand Ave & Mary Street Mary Street & Oak Ave S. Bayshore Drive & Pan American Rd Dinner Key @ Pier 7 S. Bayshore Drive & Darwin Street 2620 S Bayshore Drive 2167 S Bayshore Drive # OF LOCKS 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 24 SINGLE Page 48 of 63 13 14 32nd Rd & S. Bayshore Dr (VIZCAYA 24 ENTRANCE) SINGLE 25th Rd & SE Brickell Ave 15 2201 SW Brickell Ave 16 1915 SW Brickell Ave 17 1814 Brickell Ave (INSIDE PARK) 18 SE15th Rd & Brickell Ave 19 1440 Brickell Bay Dr 20 14th Street & SE Brickell Bay Dr 21 S Bayshore Dr & SE 12th Terr 22 14th Street & SE Brickell Ave 23 SE 14th Street & S Miami Ave 24 SW 13th Street & 2nd Ave 25 1250 S Miami Avenue 26 S Miami Ave & SW 9th Street 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 DOUBLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE Page 49 of 63 27 SE 10th Street & S Miami Ave SW 1st Ave btw 9th and 10th Street SW 9th Street & 1st Ave SW 1st Street & 1st Ave SW 3rd Ave & 7th Street SW 8th Street & 10th Ave SW 8th Street & 15th Ave SW 7th Street & 1st Court Brickell Bay Dr & SE 8th Street 28 32 33 36 Brickell Ave btw 7th and 8th Street (Heading North) 37 Brickell Ave btw 7th and 8th Street (Heading South) 38 39 40 Brickell Ave & 6th Street SE 5th Street btw Brickell Ave & S Miami Ave NW 20th Street & NW 7t" Ave 16 DOUBLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 24 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 24 SINGLE 16 SINGLE 16 SINGLE • 16 SINGLE 16 SINGLE • Page 50 of 63 41 42 Chopin Plaza & Biscayne Blvd SE 3rd Ave & 1st Street 43 E Flagler btw N Miami Ave & 1st Ave 44 Flagler St btw 1st Ave and Miami Ct 45 NW 1st Street & 1st Ave 46 NW 3rd Street & 1st Ave 47 NE 1st Ave & 4th Street 48 NE 3rd Street & 2nd Ave 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 49 NE 3rd Street & Biscayne Blvd 16 SINGLE 50 NE Biscayne Blvd btw 4th & 5th Street 16 SINGLE 51 Biscayne Blvd & NE 9th Street 16 SINGLE 52 1000 Venetian Way (IN FRONT OF THE 16 VENETIAN BLDG) SINGLE 53 NE 14th Terr & Biscayne Blvd 16 SINGLE 54 Biscayne Blvd & 15th Terr 16 SINGLE Page 51 of 63 55 NE 15th Street & Herald Plaza 56 N Bayshore Dr btw NE 17th & 18th Street 57 NE 19th Street & Biscayne Blvd 58 NW 2nd Ave & 24th Street 59 NE 25th Street & Biscayne Blvd 60 NE 30th Street & Biscayne Blvd Midtown Blvd btw 33rd & 34th Street 34th Street & N Miami Ave 61 62 24 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 16 SINGLE 63 Midtown Blvd & 35th Street 16 SINGLE 64 NE 39th Street & 1st Court 16 SINGLE 65 NE 1st Ave & 40th Street 16 SINGLE 66 50th Street & Biscayne Blvd (PUBLIX) 16 SINGLE 67 55th Street & Biscayne Blvd (ANDIAMOS 16 PIZZA) SINGLE Page 52of63 Exhibit 2.2 (c) Phase 1 Map (Approximate boundaries) NW me Wrisyitle .t d©`WstLie "H _ F R Valk. Way : AV 2, R fht. & @ 4 ,a Little Haiti @AMaReaE PHASE Page 53 of 63 RFID Tracking Basket Exhibit 3.1 Program Equipment: Bicycle Image & Specs Base Unit/Stock Image Shown, Subject to Modifications. DECOBIKE Bicycle Features Include, but are not limited to: Adjustable Seat Front/Rear Lights Unique Bike Number Rust -Buster Chain Mud Guards Bell Dynamo Docking Probe Reflectors Stainless Spokes Aluminum Frame Dual -Hand Brakes Kickstand Internal Roller Brakes Rugged Tires/Tubes CPSC Compliant 1 or 2-Speed Securitized Hardware LED Page 54 of 63 Exhibit 3.1.1 Program Equipment: Kiosk Station Format Stations are modular with a typical capacity range of 16 to 32 bikes. Each modular rail section size is indicated below and overall dimensions reflect the footprint. For Informational Purposes Only. Exact specs may vary should manufacturing processes change. 16 BIKE SINGLE 39 x E FEET WIDTH x'DEPTH F 23*H 16 BIKE DOUBLE 23 x 13 FEET WIDTH x DEPTH Eva 124 Page 55 of 63 Exhibit 3.1.2 Program Equipment: Typical Site Plan for Parking Spaces For Informational Purposes Only, Subject to permitting. Site plans will vary based on actual station capacity and placement. 6 uj Lif w 2 H 0 uu 6 Page 56 of 63 Program Equipment: Typical Site Plan for Open Spaces For Informational Purposes Only, Subject to Permitting. Site plans will vary based on actual station capacity and placement. BUILDING SIDEWALK MINIMUM F(. QIPRIN'r NEEDED: 21.58' (13.,0' SOLA 4" lix6`sW ANODIZED ALUMINUM RAII. COMPOSITE KIOSK HOUSING WITH COLORED MAFCHED GELCOAT FINISH (HIGH GLOSS) TYPICAL DOUBLE SIDED 16-BIKE LAYOUT PANEL LOCKING MECHANISM WITHIN RAN. 1/411 Page 57 of 63 EXHIBIT 3.2.1 PRICE SCHEDULE To promote flexibility in Concessionaire's marketing and sales efforts and be responsive to changes in revenues, this document establishes a range of suggested retail prices. Concessionaire may adjust as it deems appropriate inside this range and changes outside of these ranges require approval from the City Manager or his designee. Short -Term Bicycle Rentals: ■ Half Hour: $2 to $4.50 ■ One Hour: $3 to $6.95 ■ Multiple Hour rentals may be offered at discounted rate ■ Benefits: All short-term bicycle rentals provide the user access to any bike available in the program at any location. A member can pickup and return a bicycle to and/or from any kiosk location with docking space or inventory available. All members will enjoy the amount of time contracted for. Should a member not return their bicycle to a rack within that time, their credit card will continue to be charged in the same increments in which they chose to rent. ■ Additional Usage fees apply if bike not returned on time....$4 for each additional 30- minute period until returned, to a max of up to $75 ■ Fee if bike not returned within 24 hours: $800 Membership Subscriptions: ■ Standard Annual Membership- $90 to $150 ( $90-$100 Annual City Employee Membership) ■ Deluxe Annual Membership - $120 to $240 ■ Monthly Recurring Billing Standard Membership - $9 per month to $20 per month ■ Monthly Recurring Billing Deluxe Membership - $12 per month to $25 per month ■ Other Combinations of individual day, week or month memberships may be offered ■ Benefits: All membership subscriptions provide the user access to any bike available in the program at any location. A member can pickup and return a bicycle to and/or from any kiosk location with docking space or inventory available. All members will enjoy an unlimited amount of daily trips up to thirty minutes in length each (Deluxe gets 60min each trip). If the 30 or 60 minute time limit is exceeded, respectively, escalating late fees will be assessed to insure prompt returns. ■ The following free period and fees apply for memberships (different from rentals): 0 1st half-hour (or 1 HR for Deluxe) Free o Additional Usage $4 for each additional 30-minute period until returned, to a max of up to $75 per day o Fee if bike not returned within 24 hours $800 (All bikes are required to be returned within 24 hours) Patrons are required to operate the bicycles at their own risk while checked out. In the Page 58 of 63 event of bicycle theft while a patron has a bicycle checked out, such should be reported to the police and patrons shall be required to obtain a police report. Concessionaire may, at its sole option, choose to refund all or part of any patron's fees it deems appropriate on a case -by -case basis. Page 59 of 63 Exhibit 16.1 (a) Bicycle Logo Sponsorship Sponsorship logos shall be limited to bicycle surfaces, including the handlebar placard, fenders and/or basket consistent with the diagram below. (Red Cross logo used for educational/illustrational purposes only). Logo sponsorships are limited to corporate/organizational logo, name and/or likeness (not general advertising graphics such as actual product images): Page 60 of 63 Exhibit 16.1(b) Kiosk Logo Sponsorship Sponsorship logo name and/or slogan shall be permitted upon: (A) the rear panel of the kiosk opposite the keypad/screen display, and (B) side panels, consistent with the diagram below. (Red Cross logo used for educational/illustrational purposes only). Logo sponsorships are limited to corporate/organizational logo, name and/or likeness (not general advertising graphics such as actual product images): Sample A Sample B ALTERNATE SIDE PLACEMENT Concessionaire shall be permitted to utilize all surfaces of kiosk and/or docking rail for sponsor branding. City map may be displayed or attached elsewhere on the kiosk or concession site. Page 61 of 63 Exhibit 16.2 (a) On -Bicycle General Advertising Format General advertising on program bicycles shall be limited to bicycle surfaces including handlebar placard, basket and fender consistent with the diagram below. (Tag Heur logo used for educational/illustrational purposes only). General advertising may contain any graphical representation supplied by advertiser including images or descriptions of products and services: Page 62 of 63 Exhibit 16.2 (b) Kiosk General Advertising Format General advertising and Public Service Announcements on program kiosks shall be permitted upon: (A) the rear panel of the kiosk opposite the keypad/screen display to a maximum dimension of 81"x 23" or equivalent area, and (B) both side panels to a maximum of 14"x 48" each or equal area, consistent with the diagram below. General advertising may contain any graphical representation supplied by advertiser including images or descriptions of products and services: Concessionaire shall be permitted to utilize all surfaces of kiosk and/or docking rail for General Advertising. City map may be displayed or attached elsewhere on the kiosk or Concession Area. Page 63 of 63 Concession Agreement between City of Miami and Deco Bike, LLC For a Self -Service Bicycle Rental .& ' haring Program SECTION 1DEFINITIONS 7 SECTION 2TERM B 2.1 Initial Term ofAgreement 9 2.2 Extension ofAgreement 10 2.3 Contract Year / 10 SECTION 3. CONCESSION AREA(8)AND CONCESSION SERVICE ZONE 10 8.1 Concession Service Zone. 10 3.2 Concession Area (a) 10 SECTION 4.USE(G) 11 41 Bicycle Sharing & RentaServices 12 4.2 Rental Kiosks and Bicycle Racks 14 4.3 Operational Ceiling and Operational Minimum for Program 16 4.4 Hurricane Evacuation Plan 17 SECTION 5C{>NCEGG|ON FEES 17 5.1 Revenue Sharing 17 5.2 Interest for Late Payment 21 5.3 Sales and Use Tax 21 SECTION 6. MAINTENANCE AND EXAMINATION OF RECO - wS. 21 SECTION lINSPECTION AND AUDIT 22 SECTION 8.TAXES, ASSESSMENTS 23 8.1 Concessionaire Tax Responsibility 23 8.2 Procedure |fAdValorem Taxes Assessed. 23 SECTION S.EMPLOYEES AND INDEPENDENT GUxCONTRACTOR8 24 0.1 Concessionaire's Employees 24 9.2 Identification' 24 8.3 Local Hiring 24 SECTION 1OHOURS OFOPERATION 25 SECTION 11 IMPROVEMENTS, K8A|NtEN^ CE. REPAIR and OPERATION 25 11.1 Improvements 25 11.2 Maintenance/Repair 28 11.3 Orderly Operation 27 11.4 NoDangerous Materials 37 11.5 Security 28 11.6 Inspection 28 SECTION 12INSURANCE 23 SECTION 13INDEMNITY 80 18.1 Indemnification 30 13.2 Force [N ' une ! 31 Page 2 of 64 13.3 Labor Dispute 32 13.4 Waiver of Loss from Hazards 32 32 14,1 Bankruptcy 32 14.2 Default in Payment 33 14.3 Non -Monetary Default 33 14.4 City's Remedies for Concessionaire's Default 33 14,5 Default by the City 34 14,6 Surrender of Concession Areas / Removal by Concessionaire of Equipment/I provements34 14.7 Substitute Performance 35 SECTION 15. PERFORMANCE BOND OR ALTERNATE SECURITY 35 SECTION 16, ASSIGNMENT 35 SECTION 17. INTELLECTUAL PROPERTY; SPONSORSHIPS; ADVERTISEME 36 17.1 Sponsorships Directly Relating to use of City Logo or Likeness. 36 17.2 Advertisements 37 SECTION 18 NO IMPROPER USE 38 SECTION 19 PRICE SCHEDULES 38 SECTION 20 NOTICES 38 SECTION 21 LAWS 39 21.1 Compliance 39 21.2 Governing Law 39 21,3 Equal Employment Opportunity 39 21.4 , No Discrimination 40 SECTION 22 MISCELLANEOUS 40 22,1 No Partnership 40 22.2 Modifications 40 22.3 Complete Agreement 40 22.4 Headings 40 22.5 Binding Effect 41 22.6 Clauses 41 22.7 Severability 41 22,8. Right of Entry 41 22,9 Not a Lease 41 22.10 Signage 41 22.11 Procedure for Approvals and/or onsents 42 22,12 No Waiver 42 22,13 No Third Pary Beneficiary 43 22.14 Proposal Documents 43 SECTION 23 LIMITIATION OF LIABILITY 43 SECTION 14. DEFAULT AND TERMINATION Page 3 of 64 SECTION 24 VENUE 43 SECTION 25 CITY'S CONTRIBUTION TO PROGRAM 44 EXHIBITS 47 Exhibit 2.2 (a) 48 Concession Zone (approximate) 48 Exhibit 2,2 (b) 49 Concession Areas List 4 Exhibit 2.2 (c) 84 Phase 1 Map 54 (Approximate boundaries) 54 Exhibit 3.1 55 Program Equipment: Bicycle Image & Specs 55 Rugged Tires/Tubes CPSC Compliant 1 or 2-Speed Securitized HardwareExhibit 3,1:1 55 Exhibit 3,1 1 56 Program Equipment: Kiosk Station Format 56 Exhibit 3.1.2 57 Program Equipment: Typical Site Plan for Parking Spaces 57 EXHIBIT 3.2.1 59 PRICE SCHEDULE 59 Exhibit 16.1 (a) 61 Bicycle Logo Sponsorship 61 Exhibit 16.1(b) 62 Kiosk Logo Sponsorship 62 Exhibit 16,2 (a) 63 On -Bicycle General Advertising Format 63 Exhibit 16.2 (b) 64 Kiosk General Advertising Format 64 Page 4 of 64 CONCESSION AGREEMENT BETWEEN CITY OF MIAMI, FLORIDA AND DECO BIKE, LLC. FOR THE IMPLEMENTATION, MANAGEMENT AND OPERATION OF A SELF-SERVICE PUBLIC BICYCLE SHARING PROGRAM PURSUANT TO REQUEST FOR PROPOSALS NO. 275267 THIS Professional Services AGREEMENT entered into this day of 2013, byand between the CITY TY OF MIAMI, Florida (City), a municip corporation organized and .existing under and . by virtue . of thelaws of the S .ate of Florida, 444 SW 2nd Ave, Miami, Florida 33130, and DECO BIKE, LLC.,Florida corporation, with offices at 41 NE 17 Terrace, Miami Florida 33132 fter called "Concessionaire"). WITNESSETH WHEREAS, self-service bicycle sharing programs are revolutions mg the way residents and tourists commute within cities in Europe and North Amen a, and a self-service bicycle sharing program with public access has been determ r ed by the 'City to be a desirable and valuable mode of alternative public transportati for the community; and WHEREAS, a self-service bicycle sharing program serve as a great health benefit to residents and tourists, alleviates parking and vehicular tf'affic congestion, and reduces vehicle emissions and reliance on fossil fuels, serving gs a vital and integral part of the community; and WHEREAS, the City issued RFP # 275267 and t.e Concessionaire was recommended to the Commission as the most responsive and responsible Concessionaire to operate and manage this Program; WHEREAS, the City Manager acceptey/ the findings and recommendation of the Request for Proposals ("RFP") Evaluatiorn Committee, on September 19, 2011 allowing City staff to enter into negotiations wi .fi Concessionaire as the top -ranked responsive proposer; and WHEREAS, accordingly, the City and Concessionaire have negotiated the following Agreement for Concessionaire o be the exclusive firm for the implementation, management and operation of a elf -service bicycle sharing program within the City (the "Program"). NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained a d other good and valuable consideration, the receipt and adequacy of which are hery•y conclusively acknowledged, it is agreed by the parties hereto as follows: Page 5 of 64 The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the right to operate the following described concession within the Concession Service Zones and upon the Concession Areas (both as defined herein) in conformance with the purposes and for the period stated herein and subject to all the terms and conditions herein contained and fairly implied by the terms hereinafter set forth. Page 6 of 64 SECTION 1 DEFINITIONS Alternative Site Locations — Defined as bike share stations placed on private property, in another municipality's right of way, or on a property that is controlled or managed by an entity other than City. Annual Equipment Loss Report — Defined as an annual report listing all equipment that has been stolen, vandalized, not returned or destroyed. Annual Station Displacement Report — Defined as a report detailing such instancef including locations, duration of displacement, reason for displacement, name/position of staff that requested the removal, other relevant details and the total credit amount nd shall be submitted to the City Manager or his designee for approval Average Program Usage ("APU") - Defined as the average number of a'cycle trips/uses per day per kiosk operating in the program during a given calendar m th. Average Theft -Vandalism Rate ("ATVR") — Defined as the average number f acts of theft or vandalism per kiosk operating in the program within a given calendar onth. Contract Year - Defined as that certain 365 day period commencing o the date of Operational Rollout. Bicycle Sharing & Rental Station - Defined as the following items loca�d on a predetermined physical site: docking structure, Payment Kiosk, map did lay and program bicycles. Bicycle Sharing & Rental Program — Defined as A bicycle sharing program is comprised of an automated system in which bicycles are made a liable for shared use to individuals who do not own them. The central concept of thes programs is to provide affordable access to bicycles for short -distance trips in an urb n area as an alternative to motorized public transportation or private vehicles, thereby reducing traffic congestion, parking congestion, noise, and air pollution. ) ycle sharing systems have also been cited as an advantageous way to solve the "I st mile" problem and connect users to public transit networks. Public bike sharing yfograms address some of the primary disadvantages to bicycle ownership, including loss from theft or vandalism, lack of parking or storage, and maintenance requirem$nts. Such programs are also a favorable amenity for visitors to utilize without the need for an automobile for both transportation and leisure excursions. City Commission - Defined as the local legislative body of the City of Miami. Page7of64 City Manager - is defined as the Chief Executive Officer and Administrative Head of the City of Miami. In the context of this Agreement the word City without further specification shall mean the City Manager or the Manager's authorized designee. Concession Area (s) — Defined as the actual physical site locations for the program's bike sharing and rental kiosks to be located upon, Concession Service Zone - Defined as the geographical scope of the program, an shall include all the Concession Areas within the City limits of Miami. Contract Year — Defined as the 365 day periad commencing on the date of Operati al Rollout. Execution Date of this Agreement Defined as the date this Agreement ha . been signed by both parties. General Advertising Branding — Defined as the branding that consists of graphic representations of people, products, scenes, or services (not limited to graphic representation of a corporate name, logo and/or slogan). Gross Sales Receipts — Defined as the income retained or accrued as a r:sult of sales activity, derived by the Concessionaire under the privileges granted by thi. Agreement, including without limitation, Concessionaire's short-term bicycle renta - available at program stations/kiosks, bicycle sharing program membership subscription sales, sponsorship and advertising sales, excluding amounts of any Feder: I, State, or City sales tax, or other tax, governmental imposition, assessment, charge •r expense of any kind, collected by the Concessionaire from customers and req fired by law to be remitted to the taxing or other governmental authority. High -Risk Concession Area (s) - Defined as a Concession Are (s) that experiences a rate of theft and/or vandalism 50% higher than the Average Th; -Vandalism Rate; or as may otherwise be reasonably demonstrated by Concessionair ° to the City Manager or his designee, Kiosk Displacement — Defined as something which oc urs when a station must be moved from an existing and approved concession sij- for any reason beyond the control or request of Concessionaire. Membership Reciprocity — Defined as the p rmission granted to bike share membership subscribers (not walk-up renters) by oncessionaire to access other bike sharing programs operated by Concessionaire in other municipalities without additional charges to such subscribers. Membership Subscription — Defined as a one-time or recurring membership that provides a user access to the bike share program, typically ranging from one week to Page 8 of 64 f one year in duration. Users with a membership subscription can access any station and any bike in the program as many times a day as they desire. Bike checkouts under a membership must be docked at stations within a specific time period that corresponds with their membership type to promote turnover of the bikes, typically ranging from 30 to 60 minutes. Operational Ceiling - Defined as the maximum number of bicycles permitted to be operating and available to the public at any time under the terms of this agreement. Operational Minimum — Defined as the minimum number of bicycles permitted to be, operating and available to the public at any time under the terms of this agreement. Operational Rollout — Defined as the first date that access to bicycles in the progr of that phase is generally available to the public on a large scale. Payment Kiosk- Defined as the physical structure and housingfor the elec Fonic payment terminal equipment that allows users to access the bike sharing progra with a membership card or credit card. Underutilized Concession Area (s) -- Defined as a Concession Area that fall 50% below the Average Program Usage, or as may otherwise be reasonably demo strated by Concessionaire to the satisfaction of the City Manager or his designee. SECTION 2 TERM 2.1 Initial Term of Agreement The initial term of this Agreement shall be for five (5) ye: rs, commencing on the date of Operational Rollout of Phase I. The "O erational Rollout" date for Phase 1 shall be defined as the earlier of: (i. the first date that access to bicycles in the program of that phase is generally available to the public; or (ii.) nine (9) months from the E ective Date- of this agreement. Concessionaire shall provide the City Manage or his designee with written notice of the Operational Rollout date no ater than thirty (30) days prior to the commencement of said date. This d e shall be documented in the official City file for this Agreement. Should Concessionaire experience delay beyond its control while attempting to obtain materials, permits or other needed governmental approvals, the Operational Rollout Date s all be extended as needed by the City Manager at Concessionaire's request upon Concessionaire providing documentation of such for a period not exceeding six(6) months in total . Page 9 of 64 The collection of security deposits (if any) by. Concessionaire prior to the Operational Rollout date, as a part of the member subscription registration process for the program or any free public demonstration periods, shall not be used in determining the Operational Rollout date. The Operational Rollout date may be extended by the City Manager, in writing, at his sole discretion, upon written request from Concessionaire, which notice shall state the reason for the request and the anticipated period of time requested. 2.2 Extension of Agreement ' Upon the expiration of the initial term, this agreement shall automatically renew on an annual basis, utilizing up to a maximum of five (5) one-y'ar renewal terms so long as Concessionaire is not in default. 2.3 Contract Year For purposes of this Agreement, a "Contract Year" shall be defined s that certain 365 day period commencing on the date of Operational Rol but. SECTION 3. CONCESSION AREA S AND CONCESSION SERVICE ZONE The City hereby grants to the Concessionaire the right, during the erm of this Agreement, to operate the concession, as described herein, generally, i the following Concession Service Zone and, specifically, upon the following Con ession Areas (hereinafter such areas shall be referred to individually as a Conc ssion Area, or collectively as the Concession Areas): 3.1 Concession Service Zone, Concession Service Zone (s) shall be defined as the geographical scope of the program, and shall include all the Concession Areas (as defined below and in Exhibit 2.2) within the city limits of Mia i. 3.2 Concession Area (s) The Concession Areas are the actual physical site locations for the program's bike sharing and rental kiosks, as shown on Exhibit 2.2 (b), which shall be deemed to be approved b the City Manager or his designee, and attached and incorporated as/a part of this Agreement, In selecting the Concession Areas for this Ag eement, the parties agree that on -street parking spaces may be needed to place bike kiosks upon and the parties shall give consideration to minimizing the impact upon such parking spaces when possible. The Oiarties further agree that kiosks should be placed in highly -visible locations to promote the highest and best use of the bike sharing program. Page 10 of 64 3.2.1 In the event that a Concession Area(s) indicated on the approved Exhibit 2.2 (b) Concession Areas map/list is subsequently found to be unsuitable for a kiosk location, Concessionaire and the City shall use reasonable efforts in mutually cooperating to find a replacement Concession Area, within a distance equal to one 1) city block (600 linear feet), within thirty (30) days, and Ex ibit 2.2(b)) shall be amended accordingly. The same procedure hall be followed for the addition of new Concession Areas, 3.2.2 Underutilized Concession Area (s) Upon request by Concessionaire, the City Manager or his d signee shall deem a Concession Area an "Underutiliz d" by Concessionaire presenting usage data for that Concess} n Area which indicates that the quantity of daily rentals or me ber uses originating from or returning to that Concession Area alls 50% below the Average Program Usage (as defined below); or as may otherwise be reasonably demonstrated by Concession aire'to the satisfaction of the City Manager or his designee. In the event a Concession Area is determined to be underutili d, the City Manager or his designee shall use reasonable effo to cooperate with Concessionaire to transfer to or create a n w Concession Area, and shall amend Exhibit 2.2(b) accordingly. 3.2.3 High -Risk Concession Area (s) The City Manager or his designee may deem aConcession Area a "High -Risk" Concession Area, upon w itten request by Concessionaire to the City Manager or hi designee, when its incidence of theft and/or vandalism is 50% h' her than the Average Theft -Vandalism Rate; or as may othrwise be reasonably demonstrated by Concessionaire to th _ City Manager or his designee. The "Average Theft-Vandalis Rate" ("ATVR") shall be defined as the average number of acts of theft or vandalism per kiosk operating in the prograrn within a iven calendar month. The Concessionaire shall present usage d to for the Concession Area in question which indicates that the ra e of theft and/or vandalism is 50% higher than the Average The andalism. In the event that the City Manager or his designee determines that a Concession Area is a High -Risk Concession Area, the City shall use reasonable efforts to cooperate with Concessionaire to transfer to or create a new Concession Area and shall end Exhibit 2.2(b) accordingly. SECTION 4. USE(S) Page 11 of 64 The Concessionaire is hereby authorized to conduct the following kind(s) of program related businesses and provide the following kind(s) of program related services within the Concession Area(s), all at its sole cost and expense: 4.1 Bicycle Sharing & Rental Services Concessionaire shall provide bicycle sharing services and rentals at automated, self-service kiosks in the Concession Areas, on a short-term rental and subscription basis. The City herein approves the: (i.) types of bicycles, as set forth in Exhibit 3.1, attached hereto; and (ii.) prices for rental and/or subscriptions for same, as set forth in Exhibit 3.2.1, attached hereto. Any amendments to Exhibits 3.1 and/or 3.2.1, whether as to type of bicycles to be rented, or as to changes in prices, must be approved i writing by the City Manager or his designee prior to such changes bei g implemented within the Concession Area(s), and the respective exhibit s) will be amended accordingly. Bicycle rental and subscription services shall be offered daily to patr ns at all times during the Concession Area(s) hours of operation, as set orth in Section 9 hereof. Concessionaire may elect to provide staff a certain Concession Areas at its sole expense for customer servi and/or marketing purposes. Concessionaire shall be permitted to distribute safety, instructional, promotional materials and samples at oncession Areas. Concessionaire may desire to add new technologies or e uipment which may be developed in the future and are not contemp ated under the Agreement. In the event Concessionaire determines a new type of equipment or technology not originally contemplated in the 'agreement should be used in the program, Concessionaire shall make a request, in writing, to the City Manager or his designee outlini the proposed new equipment or technologies and the advantages resulting from their implementation. The City Manager or his designe shall use reasonable efforts to approve or deny such request within thirt, (30) days. In the event such a request is denied, the City Manager or his designee shall provide a detailed explanation stating why such cha •es or addition of new equipment/technology should not be implemen -d. Concessionaire shall integrate any appro ed new equipment and/or technology at Concessionaire's sole cost a responsibility and at no cost to the City. 4.1.1 All respective equipment withi ' an individual Concession Area including, without limitation, the kiosks, bicycle stations, and bicycles (all of which may be hereinafter referred to collectively as the Equipment) shall be placed substantially in accordance with the approved Site Plan as shown in Exhibit 3.1.2. The parties agree Page 12 of 64 and acknowledge that stations are modular and can be expanded as needed on a site by site basis, and such expansion does not materially deviate from the site plans in Exhibit 3.1.2. Stations, in. general, will range from a capacity of 16 to 32 docks/locking mechanisms. Concessionaire shall not materially deviate from the approved Site Plan and Site List without the prior written consent o the City Manager or his designee. 4.1.2 It is the City's intent, and Concessionaire hereby agrees .'nd acknowledges, developing and promoting a world class bic cle rental and sharing program that is comparable to those fou d at other world class communities similar to the City of Miami The condition and quality of Concessionaire's Equipment shall at all times adhere to the highest responsible ongoing maint-nance standards. Concessionaire shall maintain its bicycles in good wor ing order and repair and useable condition. At a minimum, this sr all require the following: chain in good working order and free of rust; all moving components lubed; bicycle frame and for structurally sound and in a clean condition; lights and reflectors/ unctioning as designed; pedals in functional order; brakes functioning properly; handlebars properly attached and functional; tires ' flated and free of excessive wear; wheels/spokes functional and ree of excessive wear; seat in proper working order; all bolts nd nuts properly secured and functioning as designed. See Exhi it 3.1 Concessionaire shall maintain the rental kiosks, bicycles, and bicycle racks in the Concession Areas in a good, clean working order and repair, including without limitat. n, keeping them free of graffiti. In the event that a kiosk or rack i damaged for any reason, Concessionaire shall, at a minimum, ommence repairs within forty- eight (48) hours upon receiving notice from City, and, in any event, complete repairs or (if irreparabl replace the damaged kiosk or rack so that same is fully operaonal, no later than ten (10) days from the date Concessionaire/first becomes aware (or should be aware) of the damage. If it is cessary for Concessionaire to order replacement equipment or aterials, it shall be granted an equal extension in its repair/replag merit timeline for such items. In the event that a�bicycle is damaged for any reason, a Concessionaire shall, minimum, commence repairs within forty- eight (48) hours upo) receiving notice from the City and, in any event, complete repairs or (if irreparable) . replacethe damaged Page 13 of 64 bicycle(s) within ten (10) days from the first date of remove (at which time the fully repaired bicycle or a replacement bicycle shall be put back into service). / Following the Effective Date, the City may, at its option, requ st that Concessionaire provide it with a full inventory of all prog am Equipment, including types and numbers (per item); dates of Ihase and/or purchase; and initial condition (established as of the dhte of inventory). / Many small/light maintenance items may be done on site by Concessionaire and/or its sub Concessionaires at C Incession Areas .to eliminate .or minimize unit downtime, while m derate to heavy maintenance may require Equipment to be re oved from circulation and serviced at Concessionaire's repair centOr. 4.2 Rental Kiosks and Bicycle Racks Concessionaire shall erect, install, operate, and maintain,/at its sole cost and expense, and at no cost to the City, all program egy,ipment within the Concession Areas contemplated in Exhibit 2.2. Concessionaire shall not erect, install, operate, or/maintain additional kiosks and bicycle racks (unless Concessionaire is ndertaking the repair or replacement of an existing kiosk or bicycle ack in an approved Concession Area), nor identify additional or alter ate locations for same (other than as identified in Exhibit 2.2), without the prior written approval of the City Manager or his designee. Concessionaire shall provide, at its sole cos and expense, any and all design services including, but not limited to, ., rchitectural and engineering services, as reasonably required for the deign of the kiosks and bicycle racks. This shall include, without limitati •n, the following (as may be required to obtain permits by the City/Co nty): preparation of schematic design documents consisting of drawings site plans, elevations, samples as required to show the scale and relati.. ship of the components and the design concept as a whole; and, b..ed upon the schematic design documents, as approved by the City, design development documents which may consist of, but not be limite• to, drawings, outline specifications and other documents necessary to fi and describe the size and character of the kiosks and bicycle racks in to s of architectural, structural (if any), and electrical (if any) systems, construction finish materials, and such other elements as the City m:y deem reasonably necessary and appropriate. The City shall issle a centralized 'blanket' permit to the extent allowed by applicable ;laws, rules, regulations and standard operating procedures, of the City, that covers all Concession Areas, Page 14 of 64 including but not limited to a Right of Way permit and/or building permit. Concessionaire shall not be required to apply/obtain a specific localized City permit for each individual Concession Area; however, Concessionaire shall be required to furnish a typical site plan for each location. With regard to the design of the kiosks and bicycle racks t g Y Concessionaire may be required to participate in a number of pu fie presentations, workshops, community meetings, etc., as required for review and approval from regulatory bodies, and as may otherwis be deemed necessary by the City Manager, in his reasonable discretion The Concessionaire herein warrants and represents to the City at any architects utilized by Concessionaire shall be duly licensed and dmitted to practice architecture in the State of Florida pursuant to Ch pter 481, Florida Statutes, and additionally possess the requisite o cupational licenses from the City and the County. Any and all engine s required herein shall also be duly licensed and certified by the State f Florida to engage in the practice of engineering in Florida and additio ally possess the requisite occupational licenses from the City and the Coylity. The Concessionaire shall, at its sole cost and expnse, fabricate, construct, and install (or cause to be fabricated, construc d, and installed) the kiosks and bicycle racks, based on the City pproved design. Concessionaire shall be responsible for preparation 9 any and all plans and specifications for same, and shall be respons',ble for obtaining all required governmental approvals. All kiosks, bicy le racks, and similar improvements made or caused to be made by t concessionaire shall comply with applicable provisions of the Florid Building Code, State Statutes, County and City Code provisions and y other applicable laws, rules regulations and standard operating procedures of the City. In the event any notice or claim of lien sh II be asserted against the property or interest of the City on account of r arising from any work done by or for Concessionaire, or any person aiming by, through or under Concessionaire, or for improvements or ork, the cost of which is the responsibility of Concessionaire, Canoe sionaire agrees to have such notice or claim of lien cancelled and scharged within thirty (30) days after notice to Concessionaire by City. in the event Concessionaire fails to do so, City may terminate this Agree rr) nt for cause without liability to City. City shall not be liable for any claim's, losses or damages suffered by third parties arising from Concessionaire's or its officers, agents, employees or Concessionaires; fabrication, construction, and installation of the kiosks and bicycle racks, unless caused by City's gross negligence or willful misconduct. In addition to the preceding sentence, Concessionaire shall maintain, or require that its Concessionaire(s) contractors, agents, and Page 15 of 64 sub -contractors maintain same limits of liability as required by this agreement, including worker's compensation insurance in at least the minimum amounts required by Florida law, and shall provide to City a certificate evidencing such coverage, and listing the City of Miami as an additional insured. 4.2.1 Concessionaire's Project Schedule / Project Implementation/ & Launch Phase I: As referenced in Exhibit 2.2(a), Phase I Concession Z 'ne to include, but not necessarily limited to, the following city of Miami areas: the. DDA area and central business district, Mary rickell Village area, Brickell, Omni, Little Havana, Midtown, oconut Grove, Biscayne corridor, Bayfront Park, Bayshore Dri e (North and South), Museum Park, Bayside, and specifically inc uding the Concession Areas enumerated in Exhibit 2.2(b) an attached hereto. The initial Operational Ceiling shall be 500 'cycles for Phase I. A guaranteed minimum of 35 bicycle sharin ; stations will be deployed in Phase I. The size and scope of the program, Operational Ceiling and. placement of stations, may be modified as ne -ded upon mutual consent of Concessionaire and the City Manag: or his designee. 4.2.1.1 Project Schedule Within thirty (30) days from the e ecution date of this agreement, Concessionaire and City s all mutually agree upon a detailed schedule for permitting an installation of the kiosks and bicycle racks leading up to th Operational Rollout date; Said schedule, when complete , shall be attached and incorporated as Exhibit 3.3.1.1 to this Agreement (the Project Schedule). It is estimated t t deployment will occur in approximately six (6) to nine (9) months from the signing of this agreement; however, this as mes little or no delays in the permitting and government ap royal. processes. The Project Schedule, or specific dates thereon, may' be extended upon written req est from the Concessionaire, which notice shall state the reas n for the request and the anticipated period of time requested, and subject to approval by the City Manager or his designee, in writing, at his sole discretion. Such approvals shall not be unreasonably withheld. 4.3 Operational Ceiling and Operational Minimum for Program Page 16 of 64 4.3.1 The Operational Ceiling shall be 500 bicycles for Phase I. The Operational Minimum number available to the public for Phase I shall be 300 bicycles. 4.3.2 The City Manager or his designee may authorize an increase in the Operational Ceiling on a temporary basis for special events or/ conventions, specifying the number of additional bicycles permitteI to be in operation and the dates for which the increase applies to. Such increases shall be authorized in writing by the City Manager or his designee prior to allowing any additional bicycles. City Manager. and. Concessionaire may agree to add additional stations within the area of the Phase I if it is determined and �gireed that there are not enough locations to meet demand. 4.4 Hurricane Evacuation Plan Concessionaire agrees that any and all Equipment not pe manently affixed or designed to withstand hurricane conditions, must b removed within twelve (12) hours from the issuance of a Hurricane W r�ning by the Miami -Dade County Office of Emergency Management, an stored at a private, off -site storage facility. Concessionaire shall begin o restock the fleet into the Concession Areas only upon receiving v rbal or written notice to do so from the City Manager or his designee, an, said restocking shall be completed within five (5) business days. SECTION 5 CONCESSION FEES 5.1 Revenue Sharing Revenue Sharing based on Percentage of Grossdvertising-Sponsorship Sales ("PG") or Minimum Guarantee Payments: Contract Year 1: In consideration for a Ingle Minimum Guarantee Payment of $25,000.00 by Concessionaire, Concessionaire shall be exempt from sharing any revenues during fhe first year of operations of Phase I. The Year 1 Minimum Guarant e Payment shall be due and payable within thirty (30) days following t e completion of the first year of operations for Phase I. Contract Years 2 through 10: Concessionaire shall furnish the city with the greater value of either: (a) Revenue%Sharing as outlined in this section, or (b) a Minimum Guarantee Payment for each year this agreement is in effect: Minimum Guarantee Payment Format Page 17 of 64 Year: Minimum Guarantee Payment: 1 $ 25,000.00 2 $ 35,000.00 3 $ 35,000.00 4 $ 40,000.00 5 $ 40,000.00 6 $ 40,000.00 7 $ 40,000.00 8 $ 45,000.00 9 $ 45,000.00 10 $ 45,000.00 TOTAL $ 390,000,00 Revenue Sharing for General Advertising on Program Bikes. Commencing with the second year of operations of Phase equal to 17% PG of Concessionaire's gross sales receipts from Concessionaire's On -Bike General Advertising sales due and payable by Concessionaire to the City fifteen (1 the end of each calendar month, (during each contract y Term). , an amount erived solely shall become days following r hroughout the t Revenue Sharin • for General Advertisin• on Pro • ra Kiosks/Stations. Commencing with the second year of operations of Phase I an amount equal to 17% PG of Concessionaire's gross sales receipts derived solely from Concessionaire's sale of general . dvertising on program kiosks/stations, shall become due and payab)e by Concessionaire to the City fifteen (15) days following the end of Bach calendar month, (during each contract throughout the Term). Revenue Sharing for Bicycle & Kiosk Sponsorship. Commencing with the second year °of perations of Phase I an amount equal to 5% PG of Concessionaire's ross sales receipts derived solely from Concessionaire's Bike & Kios Sponsorship Program (limited to organization name and logo), s aII become due and payable by Concessionaire to the City fifteen (15) days following the end of each calendar month, (during each contract throughout the Term). The term "gross sales receipts," for the purposes of this agreement, is understood to mean "all income retained or accrued as a result of sales activity, derived by the Concessionaire from sponsorship and advertising sales as defined in this agreement, excluding amounts of any Federal, State, or City sales tax, or other tax, collected by the Concessionaire from customers and required by law to be remitted to the taxing or other Page 18 of 64 governmental authority." This section is subject to the following exceptions: Sales of rentals and membership subscriptions shall be exempt from' revenue sharing/concession fees. Such revenues shall not be included 0 a part of the gross sales receipts for the purposes of calculating revert,oe sharing payments/concession fees. Fees or commissions charged by, or due to, outside agencies for as, fisting Concessionaire in obtaining sponsors or advertisers shall not be su ject to revenue sharing. Such sums of gross revenues originated by outside agencies shall be reduced by the amount of any commissions or ees due for the purposes of calculating the revenue share payable to Cit, on each such transaction. Concessionaire shall provide supporting doc rnents for each such occurrence detailing the applicable commissions/fee To alleviate an undue burden for actions of the public that are beyond Concessionaire's control, Concessionaire shall be entitled o an annual credit equal to the total cost of such stolen, vandalized, nit returned or destroyed equipment, to be used towards any revenue s :ring balances payable to City. At the end of each operational year, Concessionaire shall provide an annual report ("Annual Equipment Loss Ijhport") listing all equipment that has been stolen, vandalized, not returied or destroyed. Concessionaire shall include location identifying /where the theft, vandalism; or destroyed bikes took place. City Mil not be required to provide for any theft, vandalized or damaged equip ent that did not take place within the City, or at stations on private roperty (Alternate Site Locations). This report shall include the cost of e,ach such item and outline the total credit amount and shall be submitted to the City Manager or his designee. This credit shall be capped at a maximum amount not to exceed 5% of Concessionaire's annual gross revenues which are subject to the revenue sharing provisions of this agreemept. Kiosk Displacement: In the event that the City requests the removal of a kiosk from circulation that is already installed, operational and upon a Concession Area, for any reaso (including construction, events or otherwise), one of the following sha) apply: (a.) Concessionaire shall be ntitled to a credit to be applied towards any revenue sharing bal noes owed to city in the amount of $100 per day per displaced ki sk, to offset lost revenues for the time that such kiosk(s) is displaced and until it is reinstalled if no other reasonable and suitable location is made available in the immediate area to serve users in the same capacity. Additionally, a revenue sharing credit in the amount of $750 will be provided to Page 19 of 64 Concessionaire for each instance of either a removal or reinstallation of each kiosk to accommodate such displacements of program kiosks. (b.) The City may provide a reasonable alternate temporary location to, serve users in the same capacity to offset the kiosk removal. A revenue sharing credit in the amount of $750 will be provided to Concessionaire for each instance of either a removal or reinstallation of each kiosk. If improvements below grad are required to accommodate a temporary displacement and rel cation of a kiosk, Concessionaire shall be entitled to a credit against revenue sharing payments equal to the cost of such improv ments. (c.) Concessionaire may request a reasonable alternat f temporary location from the City Manager or his designee to sere /users in the same capacity to offset the kiosk removal (assumin it does not require improvements below grade or other infrastructure improvements to accommodate the kiosk). A revenu sharing credit in the amount of $750 will be provided to Conces ionaire for each instance of either a removal or reinstallation of each kiosk. If improvements below grade are required to accommodate a temporary displacement and relocation of a ki k, Concessionaire shall be entitled to a credit against revenue shot ing payments equal to the cost of such improvements. (d.)In the event that Concessionaire requests bicycle stations to be . placed in areas for special events on a t mporary basis, the City shall not be responsible for costs assoc ted with such requests, including installation or removal of such sations. Concessionaire shall submit an annul report ("Annual Station Displacement Report") detailing such nstances including locations, duration of displacement, reason for disV$acement, name/position of staff that requested the removal, other rel (rant details and the total credit amount and shall be submitted to the City Manager or his designee for approval. City Manager or his desi ee will provide a response within thirty (30) days of submission and Vot be unreasonably withheld. Delays caused by Concessionaire shall no be grounds for additional credit, once displacement has been requested In order to make the program vailable to as many residents, visitors and areas as possible and to a ectuate regional mobility and connectivity, Concessionaire may place tations/kiosks as needed on private property, in another municipality'srig, t of way, or on a property that is controlled or • managed by an entity other than City ("Alternative Site Locations"), at its Page 20 of 64 sole discretion, so long as such installations comply with all applicable municipal codes and approval processes. Concessionaire shall notify the City Manager or his designee of any Alternative Site Locations inside city limits within 30 days following installation. Any revenues generated at kiosks placed on Alternative Site Locations shall not be subject to reveny.� sharing. / To enhance the community's multimodal transportation cap 'city, Concessionaire shall, at its option, be permitted to vend and dispeniie 3`d party tickets or passes through its existing kiosk system for taxis,/trains, trams, water taxi, bus and other multimodal transportation functiorfi. Such revenues, if any, shall not be subject to revenue sharing. 5.1.2 Concessionaire, at its sole option, maypermit its hmbershi pp subscribers (not walk-up renters) derived under this agr ement with the City to access other bike sharing programs Aerated by Concessionaire in Miami -Dade County without addit)'onal charges to such subscribers ("Membership Reciprocity")/ Additionally, Concessionaire's membership subscribers from of/her programs in Miami -Dade County that are outside the scope gf this agreement will also be permitted to access the City's bike/sharing program without incurring additional charges. 5.2 Interest for Late Payment Any payment which Concessionaire is required to make to City which is not paid on or before the respective date provid d for in this Agreement shall be subject to interest at the rate of eig teen (18%) percent per annum, or the maximum interest allowable pursuant to Florida law, whichever is greater, from the duedate of ayment until such time as payment is actually received by the City. 5.3 Sales and Use Tax Any required Florida State Sales and U-e Tax, or similar State tax, levy, assessment or imposition shall be paid by Concessionaire directly or added to payments and forwarded to e City as part of said payments. It is the City's intent that it is to receive all payments due from Concessionaire as net of such Florid State Sales and Use Tax. SECTION 6, MAINTENANCE AND EXAMINATION OF RECORDS. Concessionaire shall maintain current, accur te, and complete financial records (on an accrual basis) related to its sale of advertis ments and sponsorships for its operations referenced herein. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to Page 21 of 64 inspection and audit by the City Manager or his designee, upon reasonable prior notice, whether verbal or written, and during normal business hours. Such records and accounts shall include, at a minimum, a breakdown of gross receipts, expenses, and profit and Toss statements. In the event Concessionaire accepts cash as a form of payment, it shall maintain accurate receipt -printing cash registers or the like which will record and show the payment for every sale made or service provided in the Concession Areas; and such other records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and Toss statement pursuant to generally accepted accounting principles. A monthly report of gross advertising and sponsorship receipts must be submitted to t City, directly to the City Manager or his designee, to be received no later than thirty ( 0) days after the close of each month (during each contract year throughout the Term)/ Concessionaire shall also provide city with a monthly report detailing p ridersh data including but not limited to number of rides logged, miles traveled by the bi a fleet, carbon offset, average ride time, calories burned by riders, number of mem ers and rentals. The City shall additionally have the Inspection and Audit rights and remed. s specified in § §18-100, 18-101 & 18-102 City Code, which are deemed as being incorporated by reference herein. SECTION 7. INSPECTION AND AUDIT Concessionaire . shall maintain its financial records pertain' g to its sale of advertisements and sponsorships for a period of five (5) years fter the expiration or other termination of this Agreement, and such records shall be open and available to the City Manager or his designee, as deemed necessary by th . Concessionaire shall maintain all such records at its principal office, currently Ioc ed at 41 NE 17 Terrace, Miami, Florida, 33132, or, if moved to another location, All such records shall be relocated, at Concessionaire's expense, to a location in Miami Beach, within ten (10) days' notice (written or verbal) from the City. Records will be provided to the City Manager or his designee in a standard digital format. The City Manager or his designee shall be entitled taudit Concessionaire's records pertaining to its sale of advertisements and sponsorships, as often as he deems reasonably necessary throughout the Term of this Agreement, and four (4) times within the five (5) year period following termination of the Agreement (regardless of whether such termination results from the natural expirationof the Term or for any other reason). The City shall be responsible. for paying all costs 'ssociated with such audits, unless the audit(s) reveals a deficiency of five (5%) percent or more in Concessionaire's statement of gross receipts for any year or years audited, 1 n which case Concessionaire shall pay to the City, within thirty (30) days of theaudit being deemed final by the City, the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus Page 22 of 64 interest. Concessionaire shall submit at the end of each contract year (throughout the Term), an annual statement of gross receipts for the sale of all advertisements and sponsorships, in a form consistent with generally accepted accounting principles. Additionally, such statement shall be accompanied by a report from an independent CPA firm. It is Concessionaire's intent to stay informed of comments and suggestions by the Cit regarding Concessionaire's performance under the Agreement. Upon request by t City Manager of his designee, within thirty (30) days after the end of each contract ye r, Concessionaire shall meet with the City Manager or his designee to rev}ew Concessionaire's performance under the Agreement for the previous contract yea/. At the meeting, Concessionaire and City may discuss quality, operational, maintenance and any other issues regarding Concessionaire's performance under the Agreem fit. The provisions of Miami City Code Sections §18-101("Inspections") and § 18- 102("Audits") apply as supplemental terms to this Agreement and are deeme• as being expressly incorporated by reference herein. SECTION 8. TAXES, ASSESSMENTS 8.1 Concessionaire Tax Responsibility Concessionaire agrees and shall pay before delinqu ncy all taxes (including but not limited to Resort Taxes) and assessments of any kind levied or assessed upon a Concession Area or the Concession Areas, and/or on Concessionaire by reason of this Agreemen or by reason of Concessionaire's business and/or operations within a oncession Area or Areas. Concessionaire will have the right, at its own xpense, to contest the amount or validity, in whole or in part, of an tax by appropriate proceedings diligently conducted in good faith. Conc ssionairemay refrain from paying a tax to the extent it is contesting the '- position of same in a manner that is in accordance with law. Howeve , if, as a result of such contest, additional delinquency charges beco e due, Concessionaire shall be responsible for such delinquency char• ems, in addition to payment of the contested tax, if so ordered. Concessionaire shall also be solely respo sible (at its sole cost and expense) for obtaining and maintaining curr-nt any applicable licenses or permits, as required for the operations cntemplated in this Agreement including, without limitation,'any occupational licenses required by law for the proposed uses contemplated in Se*'tion 3 and for each Concession Area (if required). 8.2 Procedure If Ad Valorem Taxes Assessed. Page 23 of 64 If ad valorem taxes are assessed against a Concession Area or the Concession Areas (or any portion thereof) by reason of Concessionaire's business and/or operations thereon, Concessionaire shall be solely responsible for prompt and timely payment of same. SECTION 9. EMPLOYEES AND INDEPENDENT SUBCONTRACTORS 9.1 Concessionaire's Employees 9.1.1 Concessionaire shall select, train and employ such numbe of employees, vendors and subcontractors as is necessa or appropriate for . Concessionaire -to satisfy its responsibilities hereunder. Concessionaire shall be the sole authority t hire, terminate and discipline any and all personnel, vendors or subcontractors employed by Concessionaire 9.1.2 Concessionaire shall designate a competent full-time employee to oversee the day-to-day operations, and who shall ct as the contract administrator for the program and serve as Concessionaire's primary point -person with the City. T is individual shall have the requisite amount of experience in operating, managing, and maintaining the program a d operations contemplated herein. The employee shall be acce sible to the City Manager or his designee at all reasonable tim s during normal business hours to discuss the manageme , operation and maintenance of the program, and within a rea unable time frame during non -business hours in the event of em -rgency. Consistent failure by the employee to be accessible shall be reported to Concessionaire's principal(s), and if not rec died, shall be grounds for replacement of the employee. 9.2 Identification Concessionaire's employees and/or contractors shall wear identification badges and uniforms, during all hours of op = ration when such employee or contractor is acting within the scope f such employment or such contractor relationship. All employees and or contractors shall observe all the graces of personal grooming. The Co cessionaire shall hire people to work in its operation who are neat, cle n, well groomed, and who shall comport themselves in a professional a d courteous manner, 9.3 Local Hiring Concessionaire shall make good faith efforts to hire new employees and/or contractors for the program from among unemployed workers in the City of Miami workforce. Page 24 of 64 SECTION 10 HOURS OF OPERATION All Concession Areas and operations thereon shall be open every day of the year, weather or events of force majeure permitting, and shall be open to the public 24 hour per day, 365 days per year. Concessionaire may temporarily modify or reduce hours bf operation as needed for the purpose of preserving the safety of the public, memb rs, customers or equipment, for a period of up to thirty (30) days upon providing imme9liate notice to the City Manager or his designee. SECTION 11 IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION The Concess.ionaire,accepts the use of anyand all Concession Areas provid td in this Agreement "AS IS," "WHERE IS, and "WITH ALL FAULTS," existing of at t Commencement Date. Concessionaire assumes sole responsibility and expense for maintenanc,of the Concession Areas and all Equipment thereon. 11.1 Improvements In addition to the specific procedures set forth it Section 3.3 for the design, fabrication, construction, and installat'/ n of the kiosks and bicycle racks, Concessionaire shall also lie solely responsible (including cost) and shall pay for th design, fabrication, construction, and installation of any and all ther improvements to a Concession Area or Areas. Any plans for such improvements shall be submitted to the City Manager or h's designee for the City's written approval. All improvements (including any ma a pursuant to Section 3.3) intended to be permanent and fixed all remain the property of the City upon termination and/or expi ation of this Agreement (no station, kiosk, bicycle, or rack i intended to be permanently affixed). Upon termination and/or xpiration of this Agreement, all personal property and non -permanent trade fixtures may be removed from the Concession Ar�as by Concessionaire. Concessionaire will permit no liens to attach to the Concession Areas arising from, connecteq with, or related to the design, fabrication, construction, and !installation of any improvements. Moreover, any permitted construction shall be accomplished through the use of licensed, insured, and reputable contractors who are acceptable to the City. Any and all approvals, permits, and or licenses required for the design, construction, and/or installation of improvements shall be the sole cost and responsibility of Page 25 of 64 Concessionaire unless otherwise provided for herein. Concessionaire shall permanently display a directory map at each kiosk showing the Concession Zones and locations where kiosks are operational. Additionally, Concessionaire may provide maps and related printed materials at the kiosks for riders to take with them at no cost. These directory maps serve as a guide for riders/ and members of the public for general way finding purposes to hp�Ip navigate the local area. Directory map listings for. I6cal organizations and attractions may be displayed on the/kiosk directory map to encourage commerce in the area. Maps,ll be updated from time to time by Concessionaire as station locations . are modified. Concessionaire shall pay for the costs ;associated with printing, posting and updating the maps. 11.1.2 Upon termination and/or expiration of this Agreem ht any and all improvements erected or installed in the Conces ion Areas (not intended to be permanent or fixed, but subject to lie City election in immediately following sentence) shall e removed by Concessionaire, at its sole cost and expense in accordance with Subsection 13.7 hereof. Additionally, Conce sionaire may also be required to remove any permanent or fixe improvements at the City Manager's sole discretion, upon writt n request from the City Manager or his designee. Any suc // improvements shall be promptly removed by Concessionaire, at'its sole cost and expense, and Concessionaire shall restore the t oncession Area or Areas to its/their original condition prior to th improvements being made. Any improvements made below grde (such as concrete footers installed in asphalt -covered parkin spaces) shall remain in place permanently and not subject to removal upon expiration of this agreement. 11.2 Maintenance/Repair The Concessionaire shall maintai , at its sole cost and expense, the Concession Areas and any Equiprent thereon (as required to operate the program). 11.2.1 Concessionaire shall bsolely responsible for the day to day operation, maintenanc and repair of all Concession Areas. Concessionaire shall maintain the Concession Areas and any Equipment thereon in good working order and condition. Concessionaire shall eep all Equipment free of graffiti. 11.2.2 All damage of any k'nd to a Concession Area and any Equipment thereon shall be the olt,cegation of Concessionaire, and shall be repaired, restored or replaced promptly by Concessionaire, at its Page 26 of 64 sole cost and expense, to the reasonable satisfaction of the City Manager or his designee. In the event any Equipment is lost, stolen, or damaged, it shall be promptly replaced or repaired by Concessionaire no later than thirty (30) days from the date of loss, theft, or damage. If such materials are not typically stocked by Concessionaire, Concessionaire shall alternatively provide proof of ordering such materials within thirty (30) days. 11.2.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to or better than the original work (or Equipment) and shall be done in good and workmanlike manner. 11.2.4 If Concessionaire fails to make such. repairs, restorations and/br replacements to a Concession Area and/or to any partic ar Equipment thereon, the same may be made by the City, a the City's sole option and discretion, but not its oblig tion. Concessionaire shall be responsible for any reasonable costs associated therewith, and shall reimburse the City within n (10) days after rendition of a bill or statement. This shall not apply to' program bicycles and kiosks as they are Concessionaire's propriety equipment. 11.2.5 It shall be Concessionaire's sole obligation to insre that any renovations, repairs and/or improvements made by ncessionaire to the Concession Areas comply with all applicable uilding codes and life safety codes of governmental authorities h ' ing jurisdiction. 11.3 Orderly Operation The Concessionaire shall have a neat and orderly oq'eration at all times and shall be solely responsible for the necessary hap sekeeping services to properly maintain the Concession Areas and any Equipment thereon. The Concessionaire shall make available all Equipment within a Concession Area for examination by the City M nager or his authorized w representative, upon reasonable verbal and/or /tten notice from the. City. 11.3.1 Concessionaire agrees, also at its sole ost and expense to pay for all garbage disposal generated by i operations and may erect refuse bins as needed. 11.3.2 Concessionaire agrees, at its sole cost and expense, to sweep the Concession Areas as needed i the event that street sweepers cannot operate in the constrain9d area in order to keep Concession Areas generally free of dirt an c /debris, 11.4 No Dangerous Materials / The .Concessionaire agrees not to/use or permit the storage and/or use of Page 27 of 64 gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida, on or within any of the Concession Areas, or on any City property and/or right of way. Concessionaire shall indemnify and hold City harmless from any Toss, damage, cost, or expense of the City, including, without limitation reasonable attorney's fees, incurred as a result of, arising from; sir connected with the placement by Concessionaire of any "hazard?, s substance" or "petroleum products" on, under-, in or upon the Concession Areas as those terms are defined by applicable Federal and State Sttute, or any environmental rules and environmental regulations promt� gated thereunder; provided, however, Concessionaire shall have no li 'bility in the event of the willful misconduct or gross negligence of th City, its agents, servants or employees. The provisions of this Subs9 tion 10.5 shall survive the termination or earlier expiration of this Agreement. 11.5 Security The Concessionaire shall be responsible, at its dole option, to employ or provide reasonable security measures, a it may deem necessary to protect the Concession Area and any E uipment thereon. Under no circumstances shall the City be responsible r the replacement of any stolen or damaged Equipment, nor shall City b responsible for the replacement of any stolen or damaged peg sonal property of Concessionaire's employees, Concessionaires, agents, patrons, guests, invitees, and/or other third parties. • / Notwithstanding the preceding paragraph, Co cessionaire shall not be obligated to have a duty to provide security s9 ices (whether manned or automated) to patrons using the program, ase program is contemplated as an unattended self-service and auto ted system. Concessionaire may employ video surveillance and recor ing as it deems practical and necessary for the safe protection of its a uipment. City and Concessionaire understand teat bicycle theft has been identified as a problem in other bicycle shari g programs. One of the potential causes for theft may be that t e locking mechanism may leave inexperienced users of these type,a of bike sharing programs unsure of whether their bicycle , is properly locked, Accordingly, in order to deter theft, Concessionaire shall prominently disclose on each kiosk, in visible, plain, easy to read/understand language and/or symbols, the proper procedure(s) for safely docking and locking a bike into the bike docking station. Similarly, Concessionaire shall utilize a locking system that clearly Page 28 of 64 $1,000,000 $2,000,000 $1,000,000 $1,000,000 indicates to users when a bicycle has been fully and properly locked. Concessionaire shall also place a clearly visible, legible disclaimer on kiosks, and on patron/customer receipts, advising users that program bikes do not come equipped with individual locks and that neither City nor Concessionaire shall be liable or otherwise responsible to users if the bicycle is stolen while in use (including bicycles that are not properly locked at the conclusion of use). 11.6 Inspection The Concessionaire agrees that any Concession Area (including, withou limitation, any Equipment thereon) may be inspected at any time by th, City Manager or his designee, or by any .other municipal, County, St fe officer, or officers of any other agency(ies) having responsibility an or jurisdiction for inspections of such operations. The Concessionaire her by waives all claims against the City for compensation for loss or da age sustained by reason of any interference with. the concession operati n as a result of inspection by any public agency(ies) or officials, (including, without limitation, by 'reason of any such public agency or off cial in enforcing any laws, ordinances, or regulations as a result there f). Any such interference shall not relieve the Concessionaire from any pbligatio.n hereunder. SECTION 12 INSURANCE Within ten (10) days after the execution of this Contract by bo li parties, and throughout the term of this Contract, the Concessionaire shall furnish Evidence of Insurance to the Purchasing Department, if applicable. Submitted evid=nce of coverage shall demonstrate strict compliance to all requirements listed on the pecial Conditions entitled "Insurance Requirements." The City shall be listed as an "additional Insured." This Contract is contingent upon the receipt of proper insurance.doruments required by this Contract. The Concessionaire shall furnish to the City of Miami c/o Risk Management, 444 SW 2nd Avenue, 9th Floor, Miami FL, 3 130, Certificate(s) of Insurance which indicate that insurance coverage has been otained which meet the requirements as outlined below: A. I. Commercial General Liability Commercial General Lability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. Endorsements Required: City of Miami included as an Additional Insured Contingent &Contractual Liability Premises/Operations Liability Page 29 of 64 II. Business Automobile Liability (if applicable) A. Limits of liability Bodily Injury and Property Damage Liability combing single limit: Any auto including hired, borrowed or non -owned autos, any one accident $300,000 B. Endorsements required: City of Miami included as additional insured III. Worker's Compensation limits of liability statutory State of Florida Waiver of Subrogation A. Employer's Liability Limits of Liability • $100,000 for bodily injury caused by an accident, each accident. • $100,000 for bodily injury caused by, disease, each employee $500,000 for bodily injury caused by disease, policy limit. The above policies shall provide the City of Miami with written notice of cance))(ation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with tie following qualifications, shall issue all insurance policies required above. Should Concessionaire fail to obtain, maintain or renew the polici "s of insurance referred to above, in the required amounts, the City may, at its sole iscretion, obtain such insurance, and any sums expended by City in obtaining said i surance, shall be repaid by Concessionaire to City, plus ten (10%) percent of the a ount of premiums paid to compensate City for its administrative costs. If Concessi naire fails to repay City's expenditures within fifteen (15) days of demand such failur shall be deemed an event of default, and the total sum owed shall accrue interes at the rate of twelve (12%) percent until paid. SECTION 13 INDEMNITY 13.1 Indemnification Concessionaire shall hold harmless, inde nify anddefend the City, its officers, agents, directors, and employe, s, from liabilities, damages, losses, judgments, and costs, includin / but not limited to reasonable attorney's fees, to the extent caused y the negligence, recklessness, negligent act or omission, or int ntional wrongful misconduct of Concessionaire and persons employ d or utilized by Concessionaire in the performance of this Contract. oncessionaire shall, further, hold the City, its officials and employees, armless for, and defend the City, its officials and/or employees again t, any civil actions, statutory or similar claims, regarding injuries or wages arising in any way out of, or resulting from, the Concessionaire's performance �of the professional services described in the Sco6e of Services, the permitted work required under this Contract, or the performance . of this. Contract, even if it is Page 30 of 64 alleged that the City, its officials and/or employees were negligent. In the event that any action or proceeding is brought against the City by r ason of any such claim or demand, Concessionaire shall, upon written otice from City, defend such action or proceeding by counsel satisfac ory to City. The Concessionaire expressly understands and agrees that any insurance protection required by this Contract or otherwise pro ided by the Concessionaire shall in no way limit the responsibility to i demnify, keep and save harmless and defend the City or its officers, ployees, agents and instrumentalities as herein provided. The indemnifications provided above shall obligate Con essionaire to defend, at its own sole expense, to and through appellat , supplemental. or bankruptcy proceeding, to provide for such defense, 4 y and all claims of liability and all suits and actions of every name an description which may be brought against the City within the scope of f e above -described indemnifications. These indemnifications will survive the cancella)on or expiration of the Contract. These indemnifications will be interpr ied under the laws of the State of Florida, including without limitation and interpretation, which conforms to the limitations of §725.06 and/o §725.08, Fla. Statutes, as amended and as applicable. Concession ire shall require all Sub- contractor agreements to include a provisiq that they will indemnify the City. The Concessionaire agrees and recogni s that the City shall not be held liable or responsible for any claims whi h may result from any actions or omissions of the Concessionaire in hich the City participated either through review or concurrence of he Concessionaire's actions. In reviewing, approving or rejecting any submissions by the Concessionaire or other acts of the Concessionaire, e City in no way assumes or shares any responsibility or liability of the Concessionaire or Sub -Contractors, under this Agreement. Ten dollars ($10) of the paymentmade by the City constitute separate, distinct, and independent con.ideration for the granting of these indemnifications, the receipt an• sufficiency of which is acknowledged by the Concessionaire. 13.2 Force Majeure Neither party shall be obliga ed to perform hereunder and neither party shall be deemed to be in defult if performance is prevented by: a. Any, act or chain of r-lated acts resulting in Equipment destruction, vandalism or theft hich renders at least fifty (50%) percent of the Concessionaire Areas in the Concession Service Zone unusable at any one point in time and which is not caused by negligence of Page 31 of 64 Concessionaire; b. earthquake; hurricane; flood; act of God; direct act of terrorism; orr civil commotion occurring which renders at least fifty (50%) percent of the Concession Areas in the Concession Service Zone unusabl c. any law, ordinance, rule, regulation or order of any public or milit ry authority stemming from the existence of economic or en gy controls, hostilities, or war which renders at least fifty (50%) per ent of the Concession Areas in the Concession Service Zone unus ble. 13.3 Labor Dispute In the event of.a labordispute which results •in a strike, picket or boycott affecting at least fifty (50%) percent of the Concession Areas wit in the Concession Service Zone, Concessionaire shall not thereby be de med to be in default or to have breached any part of this Agreement, unl ss such dispute shall have been caused by illegal labor practices or viol tions by Concessionaire of applicable collective bargaining Agreements and there has been a final determination of such fact which is not cured by Concessionaire within thirty (30) days). 13.4 Waiver of Loss from Hazards The Concessionaire hereby expressly waives all claims ainst the City for loss or damage sustained by the Concessionaire re ulting from any Force Majeure contemplated in Subsection 12.5 and abor Dispute in Subsection 12.6 above, and the Concessionaire hereb expressly waives ail rights, claims, and demands against the City and f rever releases and discharges the City of Miami, Florida, from all dem nds, claims, actions and causes of action arising from any of the aforesaj causes. SECTION 14. DEFAULT AND TERMINATION Subsections 14.1 through 14.3 shall constitute events of d ault under this Agreement. An event of default by Concessionaire shall entitle City to ercise any and all remedies described as City's remedies under this Agreement, including but not limited to those set forth in Subsection 14.4 and Section 15. 14.1 Bankruptcy If either the City or Concessionair shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or Page 32 of 64 insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 14.2 Default in Payment In the event Concessionaire fails to submit any payment within five (5) days of its due date, there shall be a late charge of Fifty ($50.00) Dollars per day for such late payment, in addition to interest at the highest rat allowable by law. If any payment and accumulated penalties are n6t received within fifteen (15) days after the payment due date, and s ch failure continues fifteen (15) days after written notice thereof, then the ity may, without further demand or notice, terminate this Conce sion Agreement without being prejudiced as to any remedies which m y be available to it for breach of contract; and may begin procedures to collect the Performance Bond required in Section,14 herein. 14.3 Non -Monetary Default In the event that Concessionaire or the City fails to reasonably perform or observe the non -monetary covenants, terms or provision under this Agreement, and such failure continues ninety (90) days after ritten notice thereof from the other party hereto, such non-defaulti r g party may immediately or at any time thereafter, and without fu er demand or notice, terminate this Agreement without being prejur'iced as to any remedies which may be available to it for breach of co ract. In the event that a default is not reasonably susceptible to bein cured within such period, the defaulting party shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatc and due diligence the curing of such default, but in no event shall su¢h extended cure period exceed ninety (90) days from the date of wri (en notice thereof. In the event Concessionaire cures any default pur ant to this subsection, it shall promptly provide the City Manager with ritten notice of same. 14.4 City's Remedies for Concessionaire's Default If any of the events of default, as set foh in this Section, shall occur, the City may, after expiration of the cure pieriods, as provided above, at its sole option and discretion, institute su$h proceedings as in its opinion are necessary to cure such defaults aril to compensate City for damages resulting from such defaults, includi, g but not limited to the right to give to Concessionaire a notice of termina ion of this Agreement. If such notice is given, the term of this Agreemen,tshall terminate upon the date specified in such notice from City to. Concessionaire. On the date so specified, Concessionaire shall then quit and surrender the Concession Area(s) to Page 33 of 64 City pursuant to the provisions of Subsection 13.7. Upon the termination of this Agreement, all rights and interest of Concessionaire in and to the Concession Area(s) and to this Agreement, and every part thereof, s cease and terminate and City may, in addition to any other rights n remedies it may have, retain all sums paid to it by Concessionaire u der this Agreement, including but not limited to, the Performance Bo d in Section 15 herein. In addition to the rights set forth above, the City shall have the to pursue any and all of the following: a. the right to injunction or other similar relief availabl7'to it under Florida law against Concessionaire; and or b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damage/ resulting from Concessionaire's default. 1.4.5 Default by the City If an event of default by the City shall occur, the C hcessionaire may, after expiration of the cure periods, as provided above, terminate this Agreement upon written notice to the City. Said termination shall become effective upon receipt of a written notice of ter, ination by the City, but in no event shall Concessionaire specify a termii ation date that is less than sixty (60) days from the date of the written t rmination notice. On the date specified " in the notice, Concessionaire hall quit and surrender the Concession Area(s) to City pursuant to th provisions of"Subsection 14.7. 14.6 Surrender of Concession Areas / Remoal by Concessionaire of Equipment/Improvements Upon expiration, or earlier terminatig of this Agreement, Concessionaire shall surrender the Concession reas in the same condition as the Concession Areas were prior to he Commencement Date, reasonable wear and tear accepted. Conce ionaire shall, at its sole expense and at no charge to the City, remove II Equipment from the Areas, (as well as any other permanent or fixed mprovements if so requested by the City Manager or his designee) o later than ninety (90) days after the conclusion of the Term, (o from the date of other termination of this Agreement) unless a longer time period is agreed to, in writing, by the City Manager). Concessionaire's oblig tion to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of any C ncession Areas after termination of the Agreement shall constitute trey) assby the Concessionaire, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City One Page 34 of 64 Thousand ($1,000.00) Dollars per day per. Area as liquidated damages for such trespass and holding over. If the Concessionaire fails to remove such equipment in accordance with the terms and conditions of this agreement, the City shall have the right to remove such equipment and supplies at the expense of Concessionaire. 14.7 Substitute Performance ,f In the event that the Concessionaire fails to properly perform the removal of any Equipment and restoration of the Concession Areas to then/original condition, except as otherwise provided herein, in accordance/with the terms of the .Agreement, then the City shall have the right to undertake and/or purchase, as the City Manager deems appropriate; any such supplies, materials, services, etc., covered herein anq' to charge Concessionaire for all reasonable costs thereby incurre. by the City. Concessionaire shall be responsible for paying all of said cysts. SECTION 15. PERFORMANCE BOND OR ALTERNATE SECURITY Concessionaire shall, on or before. the Operational Rollout date, furnish to the City Manager or his designee a Performance Bond in the penal sum stated below for the payment of which Concessionaire shall bind itself for the faithf I performance of the terms and conditions of this Agreement. A Performance Bond, i,, the amount of Twenty Five Thousand ($25,000.00) Dollars, shall be provided by the 9oncessionaire in faithful observance of this Agreement. A cash deposit, irrevocable le er of credit, or certificate of deposit may also suffice, as determined by the City Man er or his designee, in his sole and reasonable discretion. The form of the Performan9 Bond or alternate security shall be approved by the City's Chief Financial Officer. In ,the event that a Certificate of Deposit is approved, it shall be a Twenty Five Thousani ($25,000.00) Dollar one-year Certificate of Deposit in favor of the City, which shallf a automatically renewed, the original of which shall be held by the City's Chief Fine oial Officer. Concessionaire shall be so required to maintain said Performance Bond or alternate security in full force and effect throughout the Term of this Agreement. Conc ssionaire shall have an affirmative duty to notify the City Manager or his designee, in citing, in the event said Performance Bond or alternate security lapses or otherwise expires. All interest that accrues in connection with any financial instrument or sum f money referenced above shall be the property of Concessionaire, except in an event f default, in which case the City shall be entitled to all interest that accrues after the date of default. SECTION 16, ASSIGNMENT Concessionaire shall not assign all or ajiy portion of its costs or obligations under this Agreement without the prior written cdnsent of the City Manager, which may not be unreasonably withheld, conditioned, denied or delayed. The City has relied on Concessionaire's experience, skill, reputation, ability and knowledge in selecting it to Page 35 of 64 operate this program and may refuse an assignee that does not meet the City's objectives in the sole opinion of the City Manager. Concessionaire shall notify the City Manager of any proposed assignment, in writing, at least sixty (60) days prior t the proposed effective date of such assignment. In the event that any such assign ent is approved by the City Manager, the assignee shall agree to be bound by all the covenants of this Agreement required of Concessionaire and shall first exe ute an assignment and Assumption of this Agreement in a form satisfactory to he City Manager and City Attorney. SECTION 17. INTELLECTUAL PROPERTY; SPONSORSHIPS; ADVERTIS/EMENT 17.1 Sponsorships Directly Relating to use of City Logo or Likene s: The City reserves unto itself all present and future rights o negotiate all forms of endorsement and/or sponsorship agreements/ based on the marketing value of any City trademark, property, br Ind, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark property, brand, logo and/or reputation, shall belong exclusively to the City. Concessionaire shall be specifically prohibited/from entering into, or otherwise creating any, sponsorships and/or er) orsements with third parties which are based solely or in any part on he marketing value of a City trademark, property, brand, logo and/or rep ation. The prohibition on Concessionaire entering into such sponsor hip. and/or endorsement Agreements utilizing the City's property, tr demark, logo, brand and reputation, as defined above in this Sectio, shall not be interpreted to include nor prohibit the Concessionair rs right to sell or obtain sponsorships relating to Concessionaire's own assets or intellectual property, or to rent, or use, exclusively, ny particular brand or product that would be permitted for use, sale, or r ntal pursuant to this Agreement. Moreover, the City will not limit Conc ssionaire's ability to negotiate a reduced rate for purchase, from any vendor, whose product(s) Concessionaire uses or offers for sale or rent pursuant to this Agreement. Sponsorships Directly Relating to Concessionaire's Assets, Operations, Reputation, Equipment, Brand, Lo os, Likeness and Intellectual Property: It is further acknowledged that th name, likeness, equipment, concepts, logos, program operations, desig s and other intellectual property rights of Deco Bike, LLC. shall remain i the exclusive possession and control of Concessionaire at all times;lprovided, however, that Concessionaire hereby grants City an irrev cable license to use any DecoBike, LLC trademark, brand, and/or log, for purposes of the City's promotion of the program and including, without limitation, the right to use such trademarks, brand, and/or logo in all media (for such public marketing purposes) whether now existing or as may exist in the future. Page 36 of 64 Program Name: The right to name, re -name or create a program title t any of Concessionaire's bicycle sharing operations and programs is at t e sole discretion of Concessionaire as it deems necessary, including but of limited to assigning title or naming rights to a 3rd party organization f r a fee not subject to revenue sharing. / Equipment Sponsorship: Concessionaire shall be permitted tb offer sponsorships to organizations which would permit an organizatio/ial logo, name, and slogan to be placed upon program kiosks and/or bic /cles. The City shall draft and approve ordinances, or modifications of ordi, antes, as needed to effectuate and protect this sponsorship program granted to Concessionaire under this agreement and in the format descfibed in, and be subject to, .the guidelines in Exhibit 16.1, attached hereto 17.2 Advertisements To the extent it is allowed by applicable laws, codes, r 'les and regulations The City acknowledges that Concessionaire may in such case sell and display limited general commercial advertising upon rogram bicycles and kiosks. The City shall draft and approve ordinanc/s, or modifications of ordinances, necessary to effectuate and protec the advertising rights granted to Concessionaire under this agree ent and in the format described in, and be subject to, the guidelines in Exhibit 16.2, attached hereto. Any advertisements displayed on program equipment shall comply with all Federal, State, Miami -Dade County, aryl City of Miami laws, rules, regulations, ordinances, and codes, inclu ing, but not limited to, those pertaining to and/or related to billboards, outdoor advertisements, and other related signage, as applicable. In addition, the construction, materials, content and appearance of a y Advertisements to be installed on program equipment must be allow ble and, if allowed, shall comply with such other and future requireme is as Federal, State, County, and City authorities may from time to time moose, including, but not limited to, public safety, building and zoning regjiirements. Accordingly, any Advertisements ailing to comply with any applicable Federal, State, County, and City p °visions shall and must be removed by Concessionaire, at its sole cost a d expense, within five (5) business days from receipt of written notice fro the City Manager or his designee. In the event such Advertisements are not removed within said time period, the City may, at its sole optic), and discretion, fine Concessionaire $100 per day per each non-complint advertisement until such advertisements are brought into compliance./ This section shall not limit City's ability to seek other remedies as provided in this agreement. Page 37 of 64 The permissible content of Advertisements shall not include firearms, tobacco products, or be of a sexually offensive nature. SECTION 18 NO IMPROPER USE The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, any Concession Areas or improvements on equipment ereon, for any illegal, improper, immoral or offensive purpose, or for any other purp se in violation of any Federal, State, County, or municipal ordinance, rule, order or r ulation, or of any governmental rule .or regulation now in effect or hereafter enact d or adopted. The Concessionaire will protect, indemnify, and forever save and keep/ armless the City, its officials, employees, contractors, and agents from and against plamage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or in urred for any violation, or breach of any law, ordinance, rule, order or regulation occasi€ned by any act, neglect or omission of the Concessionaire, or any official, director, agent„ , or servant regarding the concession. In the event of any violation by the Concesgionaire, or if the City or its authorized representative shall deem any conduct on the Vart of the Concessionaire to be objectionable or improper, the City shall have the fight to suspend concession operation should the Concessionaire fail to correct a y such violation, conduct, or practice to the satisfaction of the City Manager or his esignee within twenty-four (24) hours following written notice of the nature and ext nt of such violation, conduct, or practice. Such suspension to continue until the violatjon is cured to the satisfaction from the City Manager or his designee. SECTION 19 PRICE SCHEDULES Concessionaire agrees that prices charge subscriptions will be consistent with the pri Concessionaire and approved by the Cit subsequent price approvals and changes Manager or his designee. The City shall h changes, but said approval shall not Concessionaire shall be permitted to opportunities which shall not be restricts, SECTION 20 NOTICES for bicycle rentals and membership e schedule(s) (herein submitted by the ), in Exhibit 3.2.1 attached hereto. All must be approved in writing by the City e the final right of approval for all such price be arbitrarily or unreasonably exercised. offer promotional membership and rental by the City or require city approval. All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to the Concessionaire at the following address: Page 38 of 64 With copies to: Deco Bike, LLC. 41 NE 17 Terrace Miami, FL 33132 Attn: Ricardo Pierdant Ozzie Schindler, Esq. Greenberg & Traurig, LLP. 1221 Brickell Avenue Miami, FL 33131 All. notices . from the Concessionaire to the City shall be deemed duly se ed upon receipt, if mailed by registered or certified mail return receipt requested to e City of Miami at the following addresses: City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 The Concessionaire and the City may change the above mailing addr=ss at any time upon giving the other party written notification. All notices under his Concession Agreement must be in writing. SECTION 21 LAWS 21.1 Compliance Concessionaire shall comply with all applicable Ci y, County, State, and Federal ordinances, statutes, rules and regulati ns, including but not limited to all applicable environmental City, Co ty, State, and Federal ordinances, statutes, rules and regulations. 21.2 Governing Law This Agreement shall be interpreted and const ued under the laws of the State of Florida, Miami —Dade County and th City of Miami regardless of choice of law principles.. Each party shall be r their own attorney's fees 21.3 Equal Employment Opportunity Neither Concessionaire nor ar►}}, affiliate of Concessionaire performing services hereunder, or py,fsuant hereto, will discriminate against any employee or applicant fir employment because of race, creed, sex,. color, national origin, sexual orientation, and disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to Page 39 of 64 utilize minorities and females in the work force and in correlative business enterprises. 21.4 No Discrimination The Concessionaire agrees that there shall be no discrimination as to race, sex, sexual orientation, color, creed, national origin, familial status, religion or handicap, in the operations referred to in this Agreement; and, further, there shall be no discrimination regarding any use, servic maintenance, or operation within the Concession Areas. All operations and services offered in the Concession Areas shall be made available, to the public, subject to the right of the Concessionaire and the City to establish and enforce reasonable rules and regulations to provide fqq,F the safety, orderly operation, and security of the Areas and improvement's and equipment thereon. 21.4.1 Concessionaire by executing this Agreement, certifies tht it does not discriminate in its membership or policies based on race, color, national origin, religion, sex, sexual orientation, famili, I status or handicap. 22.4.2 Equal Benefits Requirements SECTION 22 MISCELLANEOUS 22.1 No Partnership Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the City and Concessionaire. 22.2 Modifications This Agreement cannot be changed or modified -xcept by Agreement in writing executed by all parties hereto. Concessinaire acknowledges that no modification to this Agreement may be agr-ed to by the City unless approved by the Mayor and City Commission cept where such authority has been expressly provided herein to the Cit Manager or his designee. 22.3 Complete Agreement This Agreement, together with all exhibits 'ncorporated hereto, constitutes all the understandings and Agreement of whatsoever nature or kind existing between the parties with respe t to Concessionaire's operations, as contemplated herein. 22.4 Headings The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. Page 40of64 22.5 Binding Effect This Agreement shall be binding upon and inure to the benefit of the parties' hereto and their respective successors and permitted assigns. f I 22.6 Clauses %I The illegality or invalidity of any term or any clause of this Agreement/shall not affect the validity of the remainder of the Agreement, ar(d the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either :party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 22.7 Severability ;` If any provision of this Agreement or any portion of suc/h provision or the application thereof to any person or circumstance s, all be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no I anger be a part of this Agreement but the remainder of the Agreement, s/h provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modifidd shall. 22.8 Right of Entry The City, at the direction of the City Manag r, shall at all times during hours of operation, have the right to enter in and upon any and all parts of the Concession Area(s) for the purposes f examining the same for any reason relating to the obligations of parties, o this Agreement. 22.9 Not a Lease It is expressly understood and agreed t t no part, parcel, building, facility, equipment or space is leased to a Concessionaire, that it is a concessionaire and not a lessee; that/he Concessionaire's exclusive right to operate the concession and oupy the Concession Areas shall continue only so long as this Agreement remains in effect. 22.10 Signage Concessionaire shall provide, a its sole cost and expense, any signs utilized for its program. All sign ge and postings shall be in accordance with all applicable Municipal County, State and Federal laws and regulations. Any signage post9d by Concessionaire shall be subject to the prior approval of the City as to/size, shape and placement of same, and no such approvals will be unread onably withheld. City shall be responsible to provide, at its sole cost and expense, and as Page 41 of 64 (or if) it deems necessary in its sole and reasonable judgment an discretion, any traffic, regulatory or public safety signs, whether relat -d directly or indirectly to the program and/or other aspects of bicycle, vehicular or pedestrian safety. 22.11 Procedure for Approvals and/or Consents In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, it is ackn Wedged that such authority has been expressly provided herein to the City Manager or his designee by the Mayor and City Commission of he City. In each instance in which the approval or consent of the City Ma ager or his designee is allowed or required in this Agreement, Conces ionaire shall send to the City Manager a written request (delivery via e ail, overnight courier or. postal service is acceptable) for approval o consent (the "Approval Request"). The City Manager or his des! nee shall use reasonable efforts to provide written notice to Concession ire approving of consent to, or disapproving of the request, within thirty , 0) days from the date of Approval Request (or within such other time eriod as may be expressly set forth for a particular approval or onsent under this Agreement). However, the City Manager or his esignee's failure to consider such request within this time provided s II not be deemed a waiver, nor shall Concessionaire assume that the r quest is automatically approved and consented to. The City Manager o his designee shall not unreasonably withhold such approval or consentThis Subsection shall not apply to approvals required herein by the MOr and City Commission. 22.12 No Waiver 22,12.1 22.12.2 It is mutually covenanted and agreed by and between the parties hereto that the failure of the 9ity to insist upon the strict performance of any of the cgrnditions, covenants, terms or provisions of this Agreement, •f to exercise any option herein conferred, will not be conside ed or construed as a waiver, or relinquishment for the future if any such conditions, covenants, terms, provisions or options b t the same shall continue and remain in full force and effect. A waiver of any term exp-essed herein shall not be implied by any neglect of the City to de lare a forfeiture on account of the violation of such term if s h violation by continued or repeated subsequently and a/p express waiver shall_ not affect any term other than the one Specified in such waiver and that one only for the time and in the/manner specifically stated. 22.12.3 The receipt .of arny sum paid by Concessionaire to the City after breach of any condition, covenant, term or provision herein Page 42 of 64 contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use anal occupation, and not as rent, unless such breach be expressly waived in writing by the City. 22.13 No Third Pary Beneficiary Nothing in this Agreement shall confer upon any person or entity , including, but not limited to sub concessionaires, other than the parti s hereto and their respective successors and permitted assigns, any rig , is or remedies by reason of this Agreement. 22.14 Proposal Documents "Proposal Documents" shall mean RequestFor Proposals No. 2752 7 For a Self -Service Bicycle Sharing & Rental Program, issued by the City in contemplation of this Agreement, together with all amendments t ereto, if any, and the Consultant's proposal in response thereto (Propose I), which is incorporated by reference in this Agreement and made a •art hereof; provided, however, that in the event of an express conflict etween the Proposal Documents and this Agreement, this Agreement sh.II prevail. SECTION 23 LIMITIATION OF LIABILITY The City desires to enter into this Agreement placing the operation a d management of the Concession Area(s) in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action arising t of this Agreement, so that its liability for any such breach never exceeds the um of One Hundred Thousand ($100,000.00) Dollars. Concessionaire hereby expr sses its willingness to enter into this Agreement with a One Hundred Thousand ($10 -,000.00) Dollar limitation on recovery for any action for breach of contract. Accordingt , and in consideration of the separate consideration of One Hundred Thousand /$100,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall ngt be liable to Concessionaire. for damages to Concessionaire in an amount in excesfi of One Hundred Thousand ($100,000.00) Dollars, for any action for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or Isewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. SECTION 24 VENUE This Agreement shall be deemed to have een made and shall be construed and interpreted in accordance with the laws of th State of Florida. This Agreement shall be enforceable in Miami -Dade County, Florid , and if legal action is necessary by either party with respect to the enforcement ofany and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE Page 43 of 64 THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS. AGREEMENT OR THE CONCESSION AREA(S), SECTION 25 CITY'S CONTRIBUTION TO PROGRAM 1. Provide permanent banners and links on city's website. 2. Provide ongoing PSA and promo video clips on city's television station. 3. Ongoing features in city magazines, newsletters, mailouts. 4. Promotional email blasts to staff at least quarterly. 5.. City Permit fees to be waived. 6. Coordinate to provide dedicated loading sites for the temporary storage space for cargo. containers to place bikes and stations in the event of hurr cane, public unrest, act of god or other major disaster or threat to the safety of the equipment. Such location to be determined upon mutual agree ent by Concessionaire and City. Storage and placement will be at Concess'onaire's cost, the City will work to coordinate available locations to place cont iners. 7. Provide assistance and coordination to incorporate bike share ki•sks at or near major events and conventions on a temporary basis to serve as alternative transportation, including but not limited to the Boat Sho , Ultra, 4th of July celebrations, New Year's Eve celebrations, city birthday elebrations, Cirque de Soleil, any concerts at Bayfront and Bicentennial •-rks or other similar events. 8. Integrate bike share program in a promotional and/or PSA f• mat into major city events and city -sanctioned events to increase mar eting exposure including a display or booth at no charge (or any major even on city property). 9. Declare the bike sharing program to be an official "gren" transportation system for the city. 10.City shall be responsible for the installation and maintenance of all bicycle safety and awareness signage inside the city. Concessionaire shall not be obligated to install or erect any such signage. 11.Provide program launch announcements, update and safety awareness campaigns through digital billboards, bus shelter po ters and other PSA/public event announcement mediums the city has cost-fr a access to when possible. Concessionaire to cover costs of printing and arti tic development of any such campaigns. Page 44 of 64 IN WITNESS WHEREOF, the parties hereto have caused their names td/be signed and theft seals to be affixed, all as of the day and year first above written, indicating their Agreement. Attest: CITY OF MIAMI, FLORIDA Dwight S. Danie, MSL CITY CLERK Johnny Martinez, P.E. CITY MANAGER • Attest: DECO BIKE, AL LC, Signature/Secretary Ricardo Pierdant, PRESIDENT Print Name Approved as to Insurance: Calvin Ellis, Risk Management Director Approved as to Legal Form for the use aind benefit of the City of Miami only: Page 45 of 64 Julie O. Bru, City Attorney Page 46 of 64 EXHIBITS / Page 47 of 64 Exhibit 2.2 (a) Concession Zone (approximate) Page 48 of 64 rr �.a Exhibit 2.2 (b) Concession Areas List _.._........ ... .. _.... .t. - .......:.1..... ._:......,--`. ;.i Or '{ _:......v .. ..:t�.: Midtown Blvd NE between 33rd & 34th 1 16 25.8074"1 Street i SINGLE i i 9/ j 80.192 ............. _..... ... _........... _....... I . _....... 34th Street & N Miami Ave I I 16 125.8081 ! - I.SINGLE Midtown Blvd & 35th Street 1 16 i SINGLE 4 i 80.194 8 .......__.....f 5.8097 4 80,192 5 30th Street NE & Biscayne Blvd I 16 25.8053 - SINGLE j 3 80.189 l.._....t.............._..............._.!........._._._.. i......__._1......._...._.i i 25th Street NE & Biscayne Blvd j i 16 25.801 - SINGLE 1 80.188 9 19th Street NE & Biscayne Blvd j 16 1 25.7948 - SIN E ; I 5 i 80.188 4th Terrace NE & Biscayne Blvd j 6 I. 25.7890 SI GLE 1 8 80.188 7 N Bayshore Dr NE Between 1.7th & 18th , 1. j 16 i 25.8074 - Street l i TINGLE 1 9 80.192 Biscayne Blvd & 15th Terrace . l 16 1 25,7893 80.189 '.......SIN......................._....:..25.7903 GLE 1 2 • 1000 Venetian Causeway i , 16 I � 1 - SINGLE 1 1 80.173 ' 6 16 j 125.7828-80,189 SIN_ GLE 1 2 24 1 25.7771 SINGLE 7 80.187 5 Biscayne Blvd NE & 9th Street 1 3rd Street NE & Biscayne Blvd 8 Biscayne Blvd NE between 4th &.5th 24 1 25.7786 - Street I SINGLE 1 2 80.188 !, 8 1 15th Street NE & Herald Plaza f 1 16 1 ! 25.7897 , - 1 1 I SINGLE j 1 4 1 80.186 Page 49 of 64 1 1 [ 2 /.. 14th Street NE & N Bayshore Dr 16 I 1 25.7883 • - / SINGLE ' 1 8 I 80.78 '''''- tiiiCiYi6iiVa& E ''''''' 1J----ii6J"..---- ''''''''''''' - ''''' 16 j '' .. '' :461 ,-7.---- SINGLE I 2 1 8 .186 1 3rd Ave SE & 1st Street / L 16 I 25.7736 i -80.189 I SINGLE , 9 , 1 1 Miami Ct NW & 1st Street 16 ,. 1 25.774 SINGLE 1 4 80.194 i 6 rd Ave SE & 4th Street 16. 1 25.7 19 - • . DOUBL 1 9 80.188 • E 1. • • • 8 1 3rd Street NE & 2nd Ave 1 16 2.7771 - SINGLE 1 8 80.190 6 st Ave NE & 4th Street 16 1 25.7778 1 - SINGLE 6 80.191 I 9 , . 3rd Street NW & 1st Ave 16 , , 1 25.7771 - SING 1 , 80.194 6 1st Street NW & 1st Ave 1 1 25.7749 SINGLE 1 80.197 1 . 1 E Flager Street between N Miami Ave & 16 1 25.7741 -80.193 . 1st Ave INGL. L.1, 2 Chopin Plz & Biscayne Ave 16 25.7729 - SINGLE 1 8 80.185 8 5th Street SE between Brickell Ave & S 1. 16 I 25.7686 - Miami Ave SINGLE I 9 80.191 6 1 Brickell Ave & 6th Street 16 1 25.7677 - 1 , 1 DOUBL 1 1 80.190 1J. E i 4 Brickell Key & Claughton Island Dr 16 11 25.7664 1 - SINGLE 1 8 80.184 l,J 1 • 9 , I Brickell Bay Dr SE & 8th Street 16 1 25.7655 SINGLE 1 1 - • 80.189 •, , i r I 4 Brickell Ave between 7th Street & 8th . 16 1 25.7648 -80.191 1 i Page 50 of 64 Street 1 ! SINGLE 1 I 6 ! ......, ..... . ......... .. ...... ......_ .........._ ...... Brickell Ave Between 7th Street & 8th 16 : I 25.7651 Street SINGLE I 9 I 80. 90 I I ' 10th Street SE & S Miami Ave 24 1 25.7645 i SINGLE ' 2 : 0.193 1 4 1st Ave SW between 9th & 10th Street 16 1 25.7646 SINGLE I 4 80.195 I 11 , 1 9th Street SW & 1st Ave • 16 I 25.7 53 L - . I SINGLE I 80.195 8 16 I 2 .7656 - SINGLE I 1 80.193 S Miami Ave SW & 9th Street 8th Street SW between S Miami Ave & 24 1st Ave SINGLE Key Way Dr & Water Ave 16 SINGL 13th Street SW & 1st Ave 16 3 25.7664 -80.194 4 25.7709 - 2 80.194 8 25.7641 - SIN LE I 4 80.196 3 1250 S Miami Ave 16 1 25.7604 - INGLE I 4 80.193 . I 6 39th Street NE & 1st Ct 16 I 25.8126 - SINGLE i 6 1 80.192 5 7th Street SW & 1st Ct 16 1 25.7673 - SINGLE I 3 80.196 I 7 8th Street SW & 4st Ave 1 16 1 25.7662 - SINGLE i 4 80.201 :,•4: I I 2 25.7663 - 8th Street SW between 2nd Ave & 3rd 16 i ! 1 Ave SINGLE ! 2 80.198 I ' 5 3rd Ave SW & 7th Street 16 I 25.7673 - I SINGLE 1 8 80.199 14th Street SE & S Miami Ave 1 16! I 25.7604 SINGLE 4 1 80.193 6 Page 61 of 64 15th Rd SE & Brickell Ave 1. ' 16 25.7577 1 SINGLE ! 4 80.192 l . 5 4 1 • 1440 Brickell Bay Dr - 16 , 25.7571 SINGLE 5 80.18 4th Street SE & Brickell Bay Dr 16 25.7595 SINGLE 9 80/ S Bayshore Dr SE & 12th Terrace 16 25.7612 SINGLE 5 14th Street SE & Brickell Ave 1915 SW & Brickell Ave 16 25.7604 SINGLE 16 25.754 89 0.189 7 80.191 9 • SINGLE 6 80.198 2 2201 SW & Brickell Ave 1 16 SINGLE 25th Rd SE & Brickell Ave , 16 SINGLE ; 2167 S Bayshore Dr 24 SINGLE 2620 S Bayshore Dr 16 SING 2889 McFarlane Rd oconut Grove City Hall S Bayshore Dr & Panamerican Rd S Bayshore Dr & Darwin Street Main Hwy & Commodore Plaza 25.7 26 - 80.200 3j 2 7513 - 1 80.203 1 25.7358 - 5 80.228 3 25.7313 - 7 80.233 , 8 25.7268 - SfP4GLE 9 80.241 1 .7284 - SINGLE . 2 802344 2 16 25.7295 - 1 SINGLE 6 80.236 3 1 16 25.7309 - SINGLE 1 80,235 2 16 1 25.7265 SINGLE 7 80.234 I • 8 Page 52 of 64 Grand Ave & Main Hwy 16 I j 25.7280 SINGLE I I 5 ! 80.241 1 1 7 Virginia Street & Florida Ave 16 ; 125.7292 - SINGLE ' 4 80.241 . 5 rand Ave & Mary Street 16 i 25.7281 SINGLE ii 6 80.23 1. 16 j 25.7303 . SINGLE j 1 1 80. •i SINGLE 1 ; 8.244 ayfront Park i 16 ? 125.7765 SINGLE ' ' 1 80.184 ary Street & Oak Ave Grand Ave & Fuller Street Page 53 of 64 Exhibit 2.2 (c) Phase 1 Map (Approximate boundaries) 953 f',8th'6t :�,N1N b2nd'St yy 45fh�5II >7 31"f1taa�;1 sw'atn'sr Coral •; 3roves 11'14th %Section; Page 54 of 64 Exhibit 3.1 Program Equipment: Bicycle Image & Specs Base Unit/Stock Image Shown, Subject to Modifications. DECOBIKE Bicycle Features Include, but are not limited to: Adjustable Seat RFID Tracking Bask LED Front/Rear Lights Unique Bike Number Rust -Buster Chain Mud Guards Bell Dynamo Docking Probe Reflector. Stainless Spokes Aluminum Frame Dual -Hand Brakes Kickstand I ternal Roller Brakes Rugged Tires/Tubes CPSC Compliant 1 •r 2-Speed Securitized Hardware Page 55 of 64 Exhibit 3.1.1 Program Equipment: Kiosk Station Format Stations are modular with a typical capacity range of 16 to 32 bikes. Each modular fail section size is indicated below and overall dimensions reflect the footprint. Foi Informational Purposes Only. Exact specs may vary should manufacturing proc•-sses change. Erich rail sodion 104" 16 BIKE SINGLE 39 x 8 FEET. WIDTH x DEPTH h 23"1 16 BIKE DOUBLE 23 x 13 FEET WIDTH x DEPTH Eucii roil r+rclian 124" Page 56 of 64 Exhibit 3.1.2 Program Equipment: Typical Site Plan for Parking Spaces For Informational Purposes Only, Subject to permitting. Site plans will vary based on actual station capacity and placement. >- LLJ EFS _J 44: Page 57 of 64 Program Equipment: Typical Site Plan for Open Spaces For Informational Purposes Only, Subject to Permitting. Site plans will vary based on actual station capacity and placement. BUILDING SIDEWALK MINIMUM FOOTPRINT NEEDED:21,58'k13.0' r SOLA PANEL 41Hx6W ANODIZED ALUMINUM RAIL COMPOSITE KIOSK HOUSING WITH COLORED MATCHED GELCOAT KINISH (HIGH GLOSS) TYPICAL DOUBLE SIDED 16-BIKE LAYOUT 1/4"=1'-0" LOCK NG MECHANISM WITH N RAIL Page 58 of 64 EXHIBIT 3.2.1 PRICE SCHEDULE To promote flexibility in Concessionaire's marketing and sales efforts and be responsiv to changes in revenues, this document establishes a range of suggested retail prices. Concessionaire may adjust as it deems appropriate inside this range and changes outside of these ranges require approval from the City Manager or his designee. Short -Term Bicycle Rentals: ▪ Half Hour: $2 to $4.50 • One Hour: $3 to $6.95 • Multiple Hour rentals may be offered at discounted rate • Benefits: All short-term bicycle rentals provide the user access to any bik available in the program at any location. A member can pickup and return a bicyc) to and/or from any kiosk location with docking space or inventory available. All rriembers will enjoy the amount of time contracted for. Should a member not return t bir bicycle to a rack within that time, their credit card will continue to be charge • in the same increments in which they chose to rent. • Additional Usage fees apply if bike not returned on time....$4 for eac additional 30- minute period until returned, to a max of up to $75 • Fee if bike not returned within 24 hours: $800 Membership Subscriptions: • Standard Annual Membership- $90 to $150 ( $90-$100 Ann /al City Employee Membership) • Deluxe Annual Membership - $120 to $240 • Monthly Recurring Billing Standard Membership - $9 per month to $20 per month • Monthly Recurring Billing Deluxe Membership - $12 per mont to $25 per month • Other Combinations of individual day, week or month memb rships may be offered • Benefits: All membership subscriptions provide the user ac ss to any bike available in the program at any location. A member can pickup and return a bicycle to and/or from any kiosk location with docking space or inventory vailable. All members will enjoy an unlimited amount of daily trips up to thirty min tes in length each (Deluxe gets 60min each trip). If the 30 or 60 minute time li it is exceeded, respectively, escalating late fees will be assessed to insure prompt r turns. • The following free period and fees apply for members ips (different from rentals): O 1st half-hour (or 1 HR for Deluxe) Fr o Additional Usage .$ for each additional 30-minute period until returned, to a max of up to $75 p r day O Fee if bike not returned within 24 hours..... 800 (All bikes are required to be returned within 24 hours) Patrons are required to operate the bicycles at their own risk while checked out. In the Page 59 of 64 event of bicycle theft while a patron has a bicycle checked out, such should be reported to the police and patrons shall be required to obtain a police report. Concessionaire may, at its sole option, choose to refund all or part of any patron's fees it deems appropriate on a case -by -case basis. Page 60 of 64 Exhibit 16.1 (a) Bicycle Logo Sponsorship Sponsorship logos shall be limited to bicycle surfaces, including the handlebar plagard, fenders and/or basket consistent with the diagram below. (Red Cross logo us-0 for educational/illustrational purposes only). Logo sponsorships are limit to corporate/organizational logo, name and/or likeness (not general advertising graphics such as actual product images): Page 61 of 64 Exhibit 16.1(b) Kiosk Logo Sponsorship Sponsorship logo name and/or slogan shall be permitted upon: (A) the rear panel Of the kiosk opposite the keypad/screen display, and (B) side panels, consistent with the diagram below. (Red Cross logo used for educational/illustrational purposes only. Logo sponsorships are limited to corporate/organizational logo, name and/or liken=ss (not general advertising graphics such as actual product images): ALTER ATE /SIDE PLA MERIT Sample A Concessionaire shall be permitted to utilize all su ces of kiosk and/or docking rail for sponsor branding. City map may be displayed or ttached elsewhere on the kiosk or concession site. Page62of64 Exhibit 16.2 (a) On -Bicycle General Advertising Format General advertising on program bicycles shall be limited to bicycle surfaces including handlebar placard,basket and fender consistent with the diagram below. (Tag H ur logo used for educational/illustrational purposes only). General advertising may cord ain any graphical representation supplied by advertiser including images or descriptio s of products and services: Page 63 of 64 Exhibit 16.2 (b) Kiosk General Advertising Format General advertising and Public Service Announcements on program kiosks shall be permitted upon: (A) the rear panel of the kiosk opposite the keypad/screen display to maximum dimension of 81"x 23" or equivalent area, and (B) both side panels to a maximum of 14"x 48" each or equal area, consistent with the diagram below. Gen ral advertising may contain any graphical representation supplied .by advertiser inclu ing images or descriptions of products and services: Concessionaire shall be permitted to utiliz- all surfaces of kiosk and/or docking rail for General Advertising. City map may be displayed or attached elsewhere on the kiosk or Concession Area. Page 64 of 64