Memorandum

To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Jessica Hyink, Transportation & Mobility Coordinator CC: Johanna Leonard, Community Development Director Subject: Resolution 121-R-19, Authorizing the City Manager to Execute an Agreement with Motivate International, Inc. for the Divvy Bicycle Program Date: November 11, 2019

Recommended Action: Staff recommends the City Council adoption of Resolution 121-R-19, Authorizing the City Manager to execute an agreement with Motivate International, Inc., for a period of 5 years to expand the Evanston Divvy Bikeshare Program ("Divvy Program") and to remove the financial cost to the City.

Funding Source: Staff anticipates the budgeted amount for Divvy expenses will be cost neutral for the length of the contract.

Council Action: For Action

Summary: On September 17, 2018, City Council approved the authorization of the City Manager to negotiate a three (3) year contract extension with the operator of the Divvy Program. Since that time, Divvy was acquired by Lyft and staff has completed further negotiations and established an Amended and Restated Agreement ("Agreement"). Negotiated items of the Agreement include:

1. Reduction of 2019 costs to meet the City's goal of a cost neutral Divvy Program in 2019; 2. Elimination of Divvy Program expenses in the new Agreement; 3. Revenue share in an amount equal to 5% of the excess of user revenues over $250,000 each calendar year; 4. Ninety (90) electric assist bicycles with "lock-to" functionality (capable of being locked to a Divvy station or bicycle parking infrastructure); 5. Bicycle upgrades to existing Divvy Program bicycles as needed; 6. Software upgrades to modernize the Divvy user experience; and 7. Integration of the Program with the Ventra card to allow users to initiate a rental with a transit card.

The negotiated items will result in a significant investment by Motivate into the Evanston Program, therefore Motivate is asking for a five (5) year Agreement, with a five year extension option, to ensure these costs can be recovered. Moreover, a five year Agreement will provide additional time for Motivate to expand Evanston-based ridership and for the City to expand the Divvy for Every Evanstonian subsidy program.

The benefits of the Program include first and last mile connections to transit, reduction of greenhouse gas emissions, and a more equitable access to a community asset, as the lock- to electric assist bicycles will be able to reach all of Evanston.

Background: The Divvy Program launched in late June of 2016. The Program was made possible through a grant from the Illinois Department of Transportation provided in 2015. The City matched this grant with $80,000 in 2015 as part of a larger growth of the Divvy bike network in Chicago and Oak Park. Sponsorships and station advertisement from Northwestern University, NorthShore University HealthSystem, Valli Produce, and Presence Saint Francis have helped in the initial set-up of the stations.

Evanston currently has 14 Divvy stations distributed throughout Evanston. The locations are designed to serve as part of the larger network of Divvy and are located near large employers and points of interest (Evanston Township High School and Northwestern University) and CTA and Metra stations.

Equity: On August 23, 2018, the City launched the Divvy for Every Evanstonian program to provide $5.00 Divvy memberships to income qualifying residents. Evanston residents ages 16 and older with an annual household income at or below 185 percent of the Federal Poverty Guidelines or who receive SNAP, WIC, LIHEAP or public housing benefits now qualify for the discounted annual memberships. All annual memberships include unlimited rides of 45 minutes or less anywhere within Divvy's network. The Divvy network includes stations at grocery stores and other shopping destinations, train stations, business districts, Evanston Township High School, and Northwestern University. Having lock-to electric assisted bicycles within the Program would expand the reach of the Divvy for Every Evanstonian program.

Legislative History: Resolution 87-R-14 Accepting Participation in the Divvy Bike Share Expansion and Authorizing the City Manager to Negotiate an Intergovernmental Agreement with City of Chicago to Implement the Program Staff recommends City Council adoption of a cost match in the amount of $80,000 to match funding provided by the State of Illinois Department of Transportation is budgeted for FY 2015 in the Parking Fund Account BU: 505.19.7005.62603.

Page 2 of 27

Resolution 5-R-16 – aExecute and to Manager n Negotiate the Authorizing City Intergovernmental Agreement with the City of Chicago for the operation of Divvy Bike Stations in Evanston.

Resolution 14-R-16 – Authorizing the City Manager to Execute an Operator Agreement with Motivate International, Inc. for the operation of the Divvy Bike Share System in the City of Evanston.

On September 17, 2018, the City Council approved as Business of the City by Motion to authorize the City Manager to enter into a three (3) year contract extension with the program operator of Divvy Bikes and to purchase three (3) Divvy stations.

Attachments: Resolution 121-R-19 MTV Evanston Amended and Restated Program Agreement

Page 3 of 27 10/30/2019

121-R-19

A RESOLUTION

Authorizing the City Manager to Execute an Amended and Restated Program Agreement with Motivate International, Inc.

NOW BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF

EVANSTON, COOK COUNTY, ILLINOIS:

SECTION 1: The City Manager is hereby authorized and directed to sign

the Amended and Restated Program Agreement (the “Agreement”) by and between the

City and Motivate International, Inc. (“Motivate”) for a term that expires on January 24,

2023, and also includes a five (5) year option for Motivate to extend the contract. The

Agreement is attached hereto as Exhibit 1 and incorporated herein by reference.

SECTION 2: The City Manager is hereby authorized and directed to

negotiate any additional conditions or terms of the Agreement with Motivate as may be

determined to be in the best interest of the City.

SECTION 3: This resolution shall be in full force and effect from and after

its passage and approval, in the manner provided by law.

______Stephen H. Hagerty, Mayor

Attest: Approved as to form:

______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel

Adopted: ______, 2019

Page 4 of 27 121-R-19

EXHIBIT 1

Proposed AGREEMENT with

- 2 -

Page 5 of 27 AMENDED AND RESTATED AGREEMENT

FOR

EVANSTON BIKE SHARE PROGRAM

This AMENDED AND RESTATED AGREEMENT (this “Agreement”) is entered into by and between Motivate International Inc., a Delaware corporation, having an office at 185 Berry Street, Suite 5000, San Francisco, CA 94107 (“Motivate”) and the City of Evanston, a municipal corporation and home rule unit of local government existing under the Constitution of the State of Illinois, acting through its City Manager’s Office at Evanston, Illinois (“City”). Motivate and City are referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, the City and Motivate entered into that Operator Agreement dated as of March 2016 (“Original Program Agreement”) whereby Motivate undertook to operate a bicycle share program in the municipal boundaries of Evanston (the “Program”); and

WHEREAS, Motivate has successfully operated the Program since its launch; and

WHEREAS, the Parties desire to extend the term of the Original Program Agreement and amend it in certain respects and by this Agreement the Parties amend, restate, supersede and replace the Original Program Agreement in its entirety;

WHEREAS, the City desires a bike share system that is interoperable, at all times, with the Chicago Program (as defined below);

WHEREAS, the City has passed all resolutions necessary to authorize it to enter into this agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby agree as follows:

1. DEFINITIONS

Defined Terms. As used herein, the terms below have the following meanings. Any of such terms, unless the context otherwise requires, may be used in the singular or plural, depending upon the reference.

“Bikeshare System” means a program offering a fleet of ten (10) or more bicycles (including non-electric bicycles, electric bicycles, or both) to users on a self-service basis which involves use of property under jurisdiction or ownership of the City.

“Chicago Program” means the portion of the Divvy bicycle share program operated in the City of Chicago that is interoperable with the Program.

Page 6 of 27 “City” has the meaning set forth in the Recitals.

“Confidential Information” has the meaning set forth in Section 13.1.

“Disclosing Party” has the meaning set forth in Section 13.1.

“Effective Date” has the meaning set forth in Section 2.2.

“Event of Force Majeure” means a delay, suspension or interruption due to strike or other labor unrest; war or act of war (whether an actual declaration of war is made or not); terrorism; insurrection; riot; injunction; acts of legislative, executive, or administrative authorities; fire, flood, earthquake, severe inclement weather or similar act of providence; power failures, electrical power surges or current fluctuations; or other similar causes or events to the extent that such causes or events are beyond the control of Motivate.

“Existing Equipment” means the deployed capital equipment of the Program as of the Effective Date, including bicycles and Stations.

“Indemnified Party” or “Indemnified Parties” has the meaning set forth in Section 12.1.

“Indemnifying Party” has the meaning set forth in Section 12.1.

“Indemnity Claim” has the meaning set forth in Section 12.1

“License” has the meaning set forth in Section 3.1.

“PBSC Equipment” has the meaning set forth in Section 4.1.

“Program” has the meaning set forth in the Recitals.

“Program Revenues” has the meaning set forth in Section 5.1.

“Receiving Party” has the meaning set forth in Section 13.1.

“Station” means a designated area in which users of the Program may end a ride, and which may include equipment to which bicycles are able to be locked.

“Term” has the meaning set forth in Section 2.2.

2. SERVICES; TERM, DELIVERABLES

2.1. Services. Motivate hereby agrees to provide the services related to operating the Program in the City of Evanston as set forth in Attachment A during the Term (the “Services”), subject to the terms and conditions of this Agreement. Motivate shall be responsible for all costs of performing the Services.

2.2. Term. The term will begin on the execution of this Program Agreement (the “Effective Date”) and shall run until January 24, 2023 (the “Initial Term”). Motivate may, at its

Page 7 of 27 sole option by written notice to the City, elect to extend the Agreement for a period of five (5) years if Motivate’s agreement with the City of Chicago to operate the Chicago Program is renewed or extended (such period together with the Initial Term, the “Term”).

2.3. Deliverables. In carrying out the Services, the Operator must prepare or provide to the City various deliverables as further described in Attachment A. The City may reject Deliverables that do not conform to the specifications in this Agreement or reasonably necessary for the purpose for which the City made this Agreement. If Motivate fails to comply with the foregoing standards, the City has thirty (30) days from its discovery of the failure to notify Motivate thereof. If Motivate does not correct the failure, if it is possible to do so, within thirty (30) days after receipt of notice from the City specifying the failure, then the City, by written notice, may treat the failure as material breach.

3. EXCLUSIVITY

3.1 Exclusivity. The City shall enforce all micromobility licensing and permitting restrictions to the full extent permitted by law. The City shall notify Motivate of any changes to its City Code related to the permitting and licensing requirements for micromobility providers forty-five (45) days prior to the effective date of the change. In the event of any such change, or if the City fails to enforce any licensing or permitting restriction in its City Code, then Motivate may terminate this Agreement upon thirty (30) days’ written notice to the City.

3.2 Other Shared Micromobility. If, during the Term, the City desires to license, authorize, or permit an entity other than Motivate or its affiliates to operate a shared micromobility program offering a fleet of ten (10) or more scooters or other micromobility vehicles (including non-electric vehicles, electric vehicles, or both), other than bicycles, to users on a self-service basis which involves use of property under jurisdiction or ownership of the City, then the City shall offer Motivate the right to obtain the first license or permit for such micromobility option. If the City fails to provide Motivate an offer of first refusal, or if Motivate accepts such offer and the City nevertheless licenses, authorizes or permits another micromobility operator to operate a shared micromobility program, then Motivate may terminate this Agreement upon thirty (30) days’ written notice to the City.

4. PROGRAM UPGRADES; OWNERSHIP

4.1. Software Upgrade. Motivate will, at its cost, convert the Program’s existing backend software and from the PBSC platform to Motivate’s backend software, and Motivate will replace any components of the Existing Equipment necessary to effect such conversion, including Station kiosks and dock cassette boards (collectively, the “PBSC Equipment”) during the 2019 riding season. City will transfer the PBSC Equipment to Motivate upon Motivate’s performance of the backend software conversion. Motivate will reasonably cooperate with the City in connection with the City’s transfer of the PBSC Equipment.

4.2. Bicycle Upgrades. During the Term, Motivate may in its reasonable discretion upgrade or replace any bicycle in the Program with a bicycle of equal or greater functionality and condition and dispose of replaced bicycles at its sole cost and in its reasonable discretion.

Page 8 of 27 4.3. E-Bikes. Motivate intends to deploy bicycles with electric assist and “lock-to” (i.e., capable of being locked outside of a Station to traditional bicycle racks or other infrastructure) functionalities in the Chicago Program. Motivate will deploy at least ninety (90) such bikes within the City of Evanston, and Motivate will make commercially reasonable efforts to deploy such bicycles by the end of April 2020. City acknowledges and agrees that because the Program is interoperable with the Chicago Program, subscribers may operate such bicycles within the boundaries of the City and in conjunction with the Program equipment, including the Existing Equipment.

4.4. Ownership. City will retain ownership of Existing Equipment. Motivate will retain ownership of any new bicycles deployed in the Program.

5. PROGRAM REVENUES

5.1. Operating Costs Under Original Program Agreement. Motivate hereby reduces any outstanding invoices from January 1, 2019 to the Effective Date payable by the City to Motivate for operating costs under the Original Program Agreement, to an amount equal to the sum of any amounts received or receivable by City pursuant to City’s sale of sponsorship or advertising on capital equipment and other Program assets during the period from January 1, 2019 to the Effective Date.

5.2. Program Revenues. Subject to Section 5.3, Motivate will collect and retain all revenues generated by the Program, including user revenue and sponsorship revenue (collectively, “Program Revenues”).

5.3. Revenue Share. Within 120 days following the end of each calendar year during the Term, Motivate will pay to the City an amount equal to 5% of the excess of user revenues for such calendar year over $250,000.

5.4. Sponsorship. City hereby grants to Motivate the exclusive rights throughout the Term to (i) sell and place sponsorship and advertising on all capital equipment and other Program assets, and (ii) collect all revenues generated by such sponsorship and advertising activities. On or before the Effective Date, City will assign to Motivate all amounts receivable to City under the NorthShore Hospital Ad Panel Agreement dated [______] between City and NorthShore Hospital after the Effective Date.

6. SUBSCRIPTIONS AND PRICING

6.1. Pricing. Motivate will offer, to members of the public, subscriptions to the Program in forms and at pricing to such subscribers consistent with those offered in the Chicago Program. Motivate shall notify the City of any price changes no fewer than fifteen (15) days prior to the effective date of the change.

Page 9 of 27 7. INTELLECTUAL PROPERTY

7.1. Copyright. The copyright to any work developed under this Agreement by Motivate will be the exclusive property of Motivate. Motivate does not convey to City, nor does City obtain, any copyright to any works owned by Motivate.

7.2. Patent. If during the Term Motivate creates for use in the Program any patentable items, processes or inventions (other than any intellectual property of Motivate existing as of the Effective Date), then Motivate shall own such patentable item, process or invention as its Intellectual Property. Motivate does not convey to City, nor does City obtain, any right to any patentable items, processes or inventions utilized or owned by Motivate.

7.3. Use of Data. All data generated by the Program will be owned by Motivate. Motivate will grant City a non-exclusive, royalty-free, irrevocable, perpetual license to use, for non-commercial purposes and on a real-time basis (including to publish on the City’s website), all data generated by the Program, other than (a) personally-identifiable information that can identify individual users, their addresses, their credit card information or other personal information about users, and (b) trade secret or proprietary data or information including Motivate’s Confidential Information.

7.4. Publication. Motivate will publish aggregate Program ridership data on a monthly basis. Non-personally identifiable Program data will be made accessible online in General Bikeshare Feed Specification (GBFS) in JSON and XML format.

8. REPRESENTATIONS AND WARRANTIES

8.1. Motivate. Motivate hereby represents and warrants that:

8.1.1. Motivate has full power and authority to enter into and perform this Agreement in accordance with its terms and does not require the consent of any third party that has not been secured, and all requisite action has been taken by Motivate in connection with entering into this Agreement and that no further consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental authority or other party is required;

8.1.2. this Agreement is a valid, legally binding obligation of and enforceable against Motivate in accordance with its terms and execution of this Agreement by Motivate will not cause a breach of any other agreement to which Motivate is a party;

8.1.3. Motivate will perform the Services in a good and workmanlike manner, in conformance with this Agreement, and in accordance with customary professional and/or industry standards;

8.1.4. Motivate warrants that each of Motivate’s employees assigned to perform the Services have the proper skill, training, and background to be able to perform the Services in a competent, timely, and professional manner and that all Services will be so performed;

8.2. City. City hereby represents and warrants that:

Page 10 of 27 8.2.1. City has full power and authority to enter into and perform this Agreement in accordance with its terms and does not require the consent of any third party that has not been secured, and all requisite action has been taken by City in connection with entering into this Agreement and that no further consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental authority or other party is required;

8.2.2. this Agreement is a valid, legally binding obligation of and enforceable against City in accordance with its terms and execution of this Agreement by City will not cause a breach of any other agreement to which City is a party;

8.2.3. City will perform its obligations hereunder in a good and workmanlike manner, in conformance with this Agreement, and in accordance with customary professional and/or industry standards; and

8.2.4. City maintains insurance with coverage types and amounts reasonably necessary to satisfy its obligations and liabilities in connection with this Agreement and the Program.

9. TERMINATION

9.1. Failure or Breach. If either Party materially breaches this Agreement, then the non-breaching Party will give the breaching Party written notice of such breach and 90 days to cure such breach. If the breaching Party fails to cure such breach by the expiration of such 90- day period, then the non-breaching Party will have the right to give the breaching Party a written notice of termination, including the date when the termination will be effective, which date shall be at least 30 days after the date of such notice.

9.2. Chicago Program. The following shall constitute material breaches of this Agreement: (a) the Program’s being incompatible with the Chicago Program for more than thirty (30) days, or (b) Motivate’s ceasing to hold an agreement with the City of Chicago to operate the Chicago Program.

9.3. Contest. If the breaching Party in good faith contests any such breach, then such termination will be suspended pending the outcome of such contest in accordance with the Dispute Resolution Process.

9.4. Sole Remedies. Notwithstanding anything to the contrary herein, the sole remedy of City against Motivate for breach of this Agreement, excluding a breach of Article XII, or for failure to provide the Services satisfactorily, is to terminate this Agreement in accordance with Article IX. In no event will Motivate be liable for damages of any kind for breach of this Agreement, other than a breach of Article XII, or for failure to provide the Services satisfactorily.

10. DISPUTE RESOLUTION

10.1. In the event of a dispute between the Parties, such dispute will be addressed and resolved in accordance with the following (the “Dispute Resolution Process”): Except for a claim relating to intellectual property or breach of confidentiality provisions, the parties, through

Page 11 of 27 their respective project managers, will attempt to settle any dispute arising from this Agreement through consultation and good faith negotiation. If the project managers are unable to resolve the issue, the parties will declare a 30-day resolution period in which the issue will be escalated to the City Manager, or his designee, and to the President of Motivate, or his designee. The parties agree to timely respond to reasonable requests for information required to establish facts related to the dispute that they are not prohibited by law or policy to produce. At the end of the 30-day period, the a party shall give notice to the other party of disputes or claims the noticing believes cannot be resolved before the noticing party files any claim with a court of proper jurisdiction.

11. INSURANCE

11.1. Motivate must provide and maintain at Motivate’s own expense, during the term of this Agreement and any time period following expiration if Motivate is required to return and perform any of the Services or additional Services under this Agreement, the insurance coverages and requirements specified in Exhibit C of this Agreement, insuring all operations related to this Agreement.

12. INDEMNIFICATION AND LIMITATION OF LIABILITY

12.1. Precautions. Motivate and the City shall take all reasonable precautions to protect all persons and the property of the City and others from damage, loss or injury caused by operations of Motivate or its subcontractors under this Agreement.

12.2. Indemnification. Motivate shall defend, indemnify and hold City and its commissioners, officers and employees (each, an “Indemnified Party,” and collectively, “Indemnified Parties”) harmless, to the fullest extent permitted by law, from any and all claims of, or judgments for, a third-party for (i) damages on account of any injuries or death to such third-party or damage to any property of such third-party, or (ii) economic, pecuniary or financial losses of such third-party, together with costs and expenses to which such Indemnified Party may be subjected on account of such claims or judgments, to the extent arising out of the negligence or intentional misconduct by Motivate or its subcontractors or a violation of law by Motivate or its subcontractors (collectively, “Operator Actions”); provided, however, that Motivate shall not be responsible for any negligence of Indemnified Parties or their respective agents or contractors or for any damages caused by Indemnified Parties or their respective agents or contractors (together with matters covered by the following sentence, “Indemnified Party Actions”). In addition, and notwithstanding anything to the contrary in the foregoing, Motivate’s obligations under this paragraph shall not apply to liability to the extent arising from Motivate’s complying with the directives or requirements of the City. Insofar as the facts or law relating to any claim would preclude an Indemnified Party from being completely indemnified by Motivate, such Indemnified Party shall be partially indemnified by Motivate.

12.3. Intellectual Property Indemnification. Motivate shall defend, indemnify and hold the Indemnified Parties harmless from any and all claims (even if the allegations of the lawsuit are without merit) or judgments for damages and from costs and expenses to which the Indemnified Parties may be subject to or which the Indemnified Parties may suffer or incur allegedly arising out of or in connection with any infringement by Motivate of any copyright, trade secrets, trademark or patent rights or any other similar intellectual property right of any

Page 12 of 27 third party by Motivate or its subcontractors in the performance of this Agreement. Motivate shall defend, indemnify, and hold the Indemnified Parties harmless regardless of whether or not the alleged infringement arises out of compliance with the Agreement’s scope of services/scope of work. Insofar as the facts or law relating to any claim would preclude an Indemnified Party from being completely indemnified by Motivate, such Indemnified Party shall be partially indemnified by Motivate.

12.4. Indemnification Procedure. Upon receipt by an Indemnified Party of actual notice of a proceeding against such Indemnified Party in respect of a matter for which such Indemnified Party is entitled to indemnification under this Article 12 (a “Proceeding”), such Indemnified Party shall notify Motivate with respect thereto. In addition, an Indemnified Party shall notify Motivate after any Proceeding is commenced (by way of service with a summons or other legal process giving information as to the nature and basis of the claim) against such Indemnified Party. Failure to promptly notify Motivate shall relieve Motivate from any liability that Motivate may have on account of this indemnity to the extent Motivate has been prejudiced by such failure. Motivate shall assume the defense of a Proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Party and the payment of the fees and expenses of such counsel, in which event, except as provided below, Motivate shall not be liable for the fees and expenses of any other counsel retained by such Indemnified Party in connection with such Proceeding. In any such Proceeding in which Motivate assumes the defense, such Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) Motivate and such Indemnified Party have mutually agreed in writing to the retention of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include Motivate and such Indemnified Party and representation of both parties by the same counsel would, in the reasonable opinion of counsel to Motivate, be inappropriate due to actual or potential differing interests between Motivate and such Indemnified Party, in which case the reasonable fees and expenses of counsel for an Indemnified Party shall be borne by Motivate, provided that such Indemnified Party’s selection of counsel has been approved by Motivate, which approval shall not be unreasonably withheld or delayed. Motivate will not settle any Proceeding to which such Indemnified Party is a party without the consent of such Indemnified Party unless such settlement includes an unconditional release of such Indemnified Party from all claims made against such Indemnified Party in connection with such Proceeding without any admission of liability or wrongdoing. Notwithstanding anything to the contrary in this Article 12, if any judgment or settlement establishes that the personal injury, property damage or financial loss underlying any Proceeding arose from Indemnified Party Actions, then such Indemnified Party shall reimburse Motivate for the legal fees and costs incurred by Motivate in defending such Indemnified Party, or if such personal injury, property damage or financial loss arose from both Operator Actions and Indemnified Party Actions, then such Indemnified Party shall reimburse Motivate for such Indemnified Party’s share of Motivate’s legal fees and costs based such Indemnified Party’s share of the liability for such personal injury, property damage or financial loss.

12.5. No Right of Action. The provisions of this Agreement shall not be deemed to create any right of action in favor of third parties

Page 13 of 27 12.6. Limitation of Liability. To the maximum extent permitted by any applicable law, in no event will any Party be liable to the other Party in any manner whatsoever for any indirect, incidental, special, consequential, exemplary, punitive or aggravated damages, losses or liabilities (including, without limitation, any loss of profit or loss of goodwill) howsoever caused arising out of the obligations hereunder or otherwise relating to or in connection with this Agreement, whether in contract, tort (including negligence) or any other statutory or common law basis, notwithstanding that such Party has, or its directors, officers, employees, subcontractors, suppliers or agents have, been advised of the possibility of such damages, losses or liabilities.

13. MISCELLANEOUS

13.1. Confidentiality. Subject to the terms and conditions herein and all laws, each Party (a “Receiving Party”) agrees that it shall not, directly or indirectly, use, make available, sell, disclose, disseminate, or otherwise communicate to any person, in whole or in part, other than in the course of such Party’s performance of its obligations hereunder, either during the Term or any time thereafter, any Confidential Information. The foregoing shall not apply to any information that: (i) was known to the public prior to its disclosure by the Receiving Party; or (ii) the Receiving Party is required to disclose by law, regulation or legal process. As used herein, “Confidential Information” means with respect to each Party, the finances, agreements, business operations, trade secrets, plans, proceedings, market strategies, media and promotional activities or other non-public information of the Party disclosing such information (the “Disclosing Party”), whether disclosed orally, in writing, or through another medium, by the Disclosing Party’s officers, employees, agents or other persons.

13.2. Governing Law. This Agreement will be governed exclusively by the internal laws of the United States and of the State of Illinois applicable to contracts made, accepted and performed wholly within said State, without regard to application of principles of conflict of laws.

13.3. Survival. All provisions of this Agreement that by their terms survive the expiration or any termination of this Agreement, together with all other provisions of this Agreement that may be reasonably construed as surviving the expiration or any termination of this Agreement, will survive the expiration or any termination of this Agreement.

13.4. Notices. Except as otherwise provided herein, all notices, requests, demands and other communications which are required or may be given under this Agreement will be provided in the manner set forth in this section. Notice to a Party will be delivered to the attention of the person listed below, or to such other person or persons as may hereafter be designated by that Party in writing. Notice will be in writing sent by e-mail or regular first class mail. In the case of e-mail communications, valid notice will be deemed to have been delivered upon sending, provided the sender obtained an electronic confirmation of delivery. E-mail communications will be deemed to have been received on the date of such transmission, provided such date was a business day and delivered prior to 4:00 p.m. CT. Otherwise, receipt of e-mail communications will be deemed to have occurred on the following business day. In the case of regular mail notice, notice will be deemed to have been delivered on the mailing date and received five business days after the date of mailing.

Page 14 of 27 If to City: City of Evanston 2100 Ridge Avenue Evanston, IL 60201 Attn: City Manager

If to Motivate: Motivate International Inc. 185 Berry Street, Suite 5000 San Francisco, CA 94107 Attn: LBS Legal Email: [email protected]

13.5. Entire Agreement; Amendments and Waivers. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. No supplement, modification or waiver of this Agreement will be binding unless executed in writing by the Party to be bound thereby. No waiver of the provisions of this Agreement, or any breach thereof, will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, or will be deemed or will constitute a waiver of any other provision hereof (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided.

13.6. Counterparts; Severability. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Parties may rely upon a scanned copy of any Party’s signature as an original for all purposes. In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein, will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision of this Agreement or any other such instrument and the remaining provisions will remain in full force and effect. To the extent permitted by applicable law, any such provision will be restricted in applicability or reformed to the minimum extent required for such provision to be enforceable. This provision will be interpreted and enforced to give effect to the original written intent of the Parties prior to the determination of such invalidity or unenforceability.

13.7. Construction; Incorporation. The headings of the articles, sections, and paragraphs of this Agreement are inserted for convenience only and will not be deemed to constitute part of this Agreement or to affect the construction hereof. All sections and article references are to this Agreement, unless otherwise expressly provided. As used in this Agreement, (a) “hereof”, “hereunder”, “herein” and words of like import will be deemed to refer to this Agreement in its entirety and not just a particular section of this Agreement, and (b) unless the context otherwise requires, words in the singular number or in the plural number will each include the singular number or the plural number, words of the masculine gender will include the feminine and neuter, and, when the sense so indicates, words of the neuter gender will refer to any gender. The Parties acknowledge and agree that: (i) this Agreement is the result of negotiations between the Parties and will not be deemed or construed as having been drafted by any one Party, (ii) each Party and its counsel have reviewed and negotiated the terms and provisions of this Agreement (including, without limitation, any exhibits and schedules attached hereto) and have contributed

Page 15 of 27 to its revision, (iii) the rule of construction to the effect that any ambiguities are resolved against the drafting Party will not be employed in the interpretation of this Agreement, and (iv) the terms and provisions of this Agreement will be construed fairly as to both Parties and not in favor of or against either Party, regardless of which Party was generally responsible for the preparation of this Agreement.

13.8. Relationship of the Parties. Motivate is an independent contractor and neither Motivate nor its employees will, under any circumstances, be considered employees, servants, or agents of City, nor will City or its agents or employees be considered employees, servants, or agents of Motivate. At no time during the Term or otherwise will Motivate, its employees, or agents, represent to any person or entity that Motivate and its employees are acting on behalf of, or as an agent of, City or any of its employees. City will not withhold payments to Motivate for any federal or state unemployment taxes, federal or state income taxes, Social Security tax, or any other amounts for benefits to Motivate. City will not provide to Motivate any insurance coverage or other benefits, including Workers’ Compensation, normally provided by City for its employees. This Agreement does not constitute and will not be construed as constituting a partnership or joint venture or grant of a franchise between the Parties.

13.9. Cooperation. The Parties agree to execute such further instruments and to take such further action as may reasonably be necessary or helpful to carry out the intent of this Agreement.

13.10. Failure or Delay in Performance. Motivate will not be held responsible for failure to perform the duties and responsibilities imposed by this Agreement if such failure is due to Event of Force Majeure, beyond the control of Motivate, that make performance impossible or illegal, unless otherwise specified in this Agreement; provided that Motivate (in order to not be held responsible for failure to perform) will have given City written notification of such Event of Force Majeure as soon as reasonably practicable after the occurrence of such Event of Force Majeure.

13.11. Assignment. Neither Party may assign, transfer, convey, sublet, or otherwise dispose of any award, or any or all of its rights, obligations, or interests under this Agreement without the prior written consent of the other Party; provided, however, that Motivate may assign this Agreement to an affiliate of Motivate without City’s consent.

13.12. Publicity. Subject to the terms hereof, Motivate may make press releases, public statements and responses to media inquiries regarding this Agreement and the Program with City’s prior approval, which approval shall not be unreasonably withheld; provided, however that, (a) in the event of any operational matters pertaining to the Program that are time-sensitive and outside of the usual course (such as closing for weather), Motivate will have the right to make announcements to subscribers and on the Program website/mobile application regarding such matters without the prior approval of City, (b) Motivate will have the right to publish information regarding performance under this Agreement, or of the results and accomplishments attained in such performance, and (c) nothing contained herein will limit Motivate’s right, in the performance of its obligations hereunder, to make announcements and issue statements to promote the Program, Program-related events (e.g. new station opening) and promotions for the purpose of promoting the Program.

Page 16 of 27 13.13. Northwestern University.

13.13.1. Within thirty (30) days of executing this agreement, Motivate agrees to meet with Northwestern University to discuss a mutually agreeable plan for bicycle distribution and/or geo-fenced parking locations for on Northwestern’s Campus.

13.13.2. Motivate will coordinate with Northwestern University to establish geo-fenced parking locations for electric-assist bicycles on the Campus.

13.13.3. Motivate will meet annually with Northwestern to review ridership, station locations, and any other improvements to the Program related to operating on Northwestern University’s Campus.

[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]

Page 17 of 27 IN WITNESS WHEREOF, Motivate and City have executed this Agreement as of the date last set forth below.

MOTIVATE:

MOTIVATE INTERNATIONAL INC.

By: Date: Name: Title:

CITY:

CITY OF EVANSTON

By: Date: Name: Title:

Page 18 of 27 ATTACHMENT A

Description of Services

1. Description of Services. Motivate will operate and maintain the Program according to the description of Services set forth in this Attachment. Motivate shall provide all technical expertise, qualified personnel, equipment, tools, and material to safely and competently accomplish all of the Services.

1.1 Project Management. The Program shall have the same Project Managers as the Chicago Program. The City Project Manager shall serve as the primary point of contact for Motivate with respect to this Agreement. The Motivate Project Manager shall have overall responsibility for day-to-day management and administration of the Services provided under this Agreement and shall serve as the primary contact for the City with respect to this Agreement. Where specifically stated in this Agreement, Motivate shall obtain from the City Project Manager prior written approval of specified activities. However, it shall be the responsibility of Motivate to manage the details of the execution and performance of the Services under this Agreement. The Motivate Project Manager shall, at the reasonable request of City, attend any meeting of the management personnel of the City related to this Agreement, the Program or the Services.

1.2 Staffing. Motivate must, upon receiving a fully executed copy of this Agreement, assign and maintain during the term of this Agreement and any extension of it a staff of competent personnel that is fully equipped, licensed as appropriate, available as needed, and qualified to perform the Services in this Agreement.

2. The Program. The Program comprises the following two components: Stations and Bicycles (which include bicycles with electric assist functionality).

2.1 All components of the Program shall retain interoperability with the Chicago Program.

2.2 All software to operate the Program shall retain interoperability with the Chicago Program.

2.3 Motivate will maintain, and include the Program in, the website created pursuant to the Chicago Program.

2.4 Motivate will include the Program in its operation of the call center required by the Chicago Program.

3. Equipment Deployment.

3.1 Motivate will inspect and store all new equipment prior to deployment.

3.2 Motivate will be responsible for deployment of all equipment.

Page 19 of 27 3.3 Motivate shall deploy ninety (90) bicycles with electric assist functionality, as described in Section 4.3 of the Agreement, in Evanston.

3.4 Motivate shall work with Northwestern University to deploy a mutually agreed upon number of bikes on its campus to support student ridership.

3.5 Motivate shall work with the City to ensure bicycles, including bicycles with electric assist functionality, are located in an efficient and equitable manner.

4. Subscriber Information/Relations.

4.1 Age Requirement for Program Subscribers. Subscriptions will only be issued to individuals 16 years of age and older.

4.2 Bicycle Rental Agreement. Motivate shall use the same user agreement for the Program as Motivate uses for the Chicago Program.

4.3 Divvy for Everyone – Evanston. Motivate shall continue to offer affordable and accessible pricing to qualifying residents while the Program is in operation by managing, funding, and operating the Divvy for Everyone – Evanston (D4EE) program. Motivate and the City shall mutually agree upon eligibility requirements for the D4EE program.

5. Operations

5.1 Continuous Operation and Management. Except as otherwise stated herein, and subject to scheduled downtime, the Program will commence operating on the Effective Date and will remain in operation 24 hours per day, 365 days per year.

5.2 Inspection and Maintenance.

(1) Motivate will, at all times, follow and comply with the manufacturer’s requirements, warranties, and recommendations for assembly, maintenance, storage and repair of all Program equipment.

(2) Motivate will perform regular maintenance checks for each bicycle, with deficient elements repaired or replaced as necessary.

(3) Motivate will clean each Station of dirt and, debris

(4) Motivate will remove conspicuous graffiti promptly after notification.

(5) Motivate will remove conspicuous accumulations of litter from Stations promptly after notification.

5.3 Snow Removal: Recognizing that each snow event will differ in duration, start and end times as well as level of customer activity, the following describes the actions that will be undertaken:

Page 20 of 27 (1) Motivate will clean any accumulation of snow or ice from Motivate Stations within forty eight (48) hours after a storm if there is an accumulation of four (4) inches or more of snow or 1 inch of ice.

(2) On an ongoing basis, the solar panels will be cleaned or brushed off. This is imperative as they are very sensitive to sunlight.

(3) Motivate regularly visits the stations in order to perform routine maintenance and cleaning and to rebalance the number of bicycles parked at each station. During the winter months these regular visits will also include routine checks for snow and ice accumulation.

(4) Staff will only be dispatched to clean the stations when it is safe to do so. Each member will be required to wear all safety gear including traffic vests for high visibility.

(5) Each vehicle will be provided with shovels, brooms and traffic cones to complete the required tasks. This list must be confirmed by staff before departing the yard.

(6) Snow removed from the stations will not be piled onto the roadway or onto the cleared pedestrian path.

(7) A minimum clear path of four (4) feet width will be maintained on all sidewalks. Snow removed from Motivate stations will not be placed in an area that obstructs entrances or exits to/from adjacent buildings or access to above-ground utilities/services/street furniture in the right-of-way.

(8) Snow removed from stations on Parks property will not be piled onto Park pathways or obstruct access to the Park or Park facilities.

(9) Procedures during light snowfalls (less than four (4) inches)

(a) During ongoing operations, staff would visit the stations and clean the stations as required using heavy brooms or shovels. The area around the station will be closed off with pylons during snow removal.

(b) An area, four (4) feet wide around the station, will be maintained clear of snow.

(c) The solar panels, stations and ground area will be cleaned as part of the visit.

(10) Procedures during heavy snowfalls (greater than four (4) inches)

(a) During heavy snowfalls, the system will be temporarily shut down if it is anticipated to be a snow fall of more than four (4) inches. Once the snow

Page 21 of 27 subsides and it is safe for staff to be on the roads, the following will occur:

(1) Stations and solar panels will be cleaned using heavy brooms or shovels. The area around the station will be closed off with pylons during snow removal activities.

(2) An area, four (4) feet wide around the station, will be maintained clear of snow.

(3) Every station must be visited and inspected before the system will be reopened.

5.4 Distribution of Bicycles. Motivate will re-distribute bicycles within the Program service area throughout the day during each day of operation. All bicycles placed in service will be in acceptable operating condition. Motivate shall work with the City to ensure bicycles, including bicycles with electric assist functionality, are redistributed in an efficient and equitable manner.

5.5 Motivate’s Call Center. Motivate will provide to all subscribers, and the public at large, the toll-free telephone number and other contact information for Motivate’s customer service center. The customer service center for the Chicago Program shall also provide service to the Program.

5.6 Comments and Complaints. Motivate will establish and maintain during the Term prompt and efficient procedures for handling complaints from the public for which Motivate receives a notification. Such procedures will be consistent with all applicable laws, rules and regulations and the provisions of this section.

5.7 Program Website. Motivate will maintain a Program website.

5.8 Motivate Staffing Levels. Motivate, at all times, will provide sufficient staff to efficiently and promptly provide the services set forth in this Agreement.

5.9 Transit Integration. Motivate will commence integrating with the Ventra card in 2019 to allow users to initiate a rental with a transit card.

5.10 Relocation, Resizing, and/or Reconfiguration of Stations.

(1) By Motivate. In the event that Motivate wishes to remove, relocate, resize, and/or reconfigure any Station, other than those Stations whose locations are fixed pursuant to the terms of a grant or sponsorship agreement, due to under-utilization or lack of profitability, Motivate may remove, relocate, resize, and/or reconfigure the Station subject to City approval and permitting requirements. All Program stations will remain in Evanston.

(2) By City. If City requires that a Station or parts thereof be relocated to accommodate unexpected commuting patterns, construction or other reasons, then at the request of City, Motivate will adjust the placement or configuration of up to two Stations per year at no

Page 22 of 27 cost. For Station relocation or configuration beyond two Stations, City will compensate Motivate as set forth in Attachment B to this Agreement.

(3) By Private Property Owner. Private property owners or contractors doing private construction on public or private property may request that a Station or parts thereof be relocated to accommodate such construction or other reasons. At the request of the property owner, Motivate will adjust the placement or configuration of a Station. The property owner will compensate Motivate as set forth in in Attachment B to this Agreement. Motivate will invoice and collect payment from a private property owner prior to any such moves.

5.11 Interruption of Service.

(4) Intentional Interruption of Service. If, at any time, Motivate intends, or is required, to temporarily interrupt all or a portion of the service, for any reason beyond Motivate’s reasonable control, including, without limitation, weather, safety, or other event or circumstance where continued service would be unsafe, unavailable, impractical, or impossible, then Motivate will notify City at least 24 hours before the interruption of service.

(5) Unintentional Interruption of Service. If, at any time, a Program malfunction or an event or circumstance occurs where continuous service would be unsafe or unavailable for reasons beyond Motivate’s reasonable control, and this causes or will cause a temporary interruption of service, then Motivate will immediately notify City.

6. Reporting. On a monthly basis, the Operator shall provide final reports including the following minimum metrics:

6.1 Performance Metrics:

(1) YTD Count of active registered members by type at the end of the reporting month

(2) YTD Count of unique casual memberships initiated at the end of the reporting month

(3) Number of new members by type who signed up during the reporting month, by week/month

(4) Number of cancellations and/or expirations of registered members by type during the reporting month

6.2 Ridership:

(1) Trips per day by member type

(2) Total trips per month and YTD per member type

(3) Average number of trips per day of week and hour of the day for weekdays and weekends during the reporting month

Page 23 of 27 (4) Average duration of trips by member type

(5) Average and total length of trips (Straight line distance) by member type

(6) Total and average calories burned per week/month by member type. Based on calculation using total and average trip durations.

(7) Carbon offset per week/month. Based on calculation using total miles traveled (straight line distance)

(8) Average carbon offset per member by type for the month. Based on “total members/total carbon offset”

6.3 Financial Performance:

(1) Operating revenues

Page 24 of 27 ATTACHMENT B

Fee Schedule for Station Relocation, Resizing and/or Reconfiguration

SCENARIO #1 - TEMPORARY CLOSURE OF STATION

Station remains in place but all bikes are removed and docks are covered with hoods; bike share users cannot check out or return bikes to the station.

Station Closure Fee = $500 flat fee + $15 per dock, per day of closure  Example for a 31 dock station, for a 2 day closure: $500 + {$15 * 31 * 2} = $1,430.00

SCENARIO #2 - TEMPORARY CLOSURE WITH FULL REMOVAL OF STATION

Entire station and all bikes are removed for the duration of project; station and all bikes will be returned upon completion of project.

Station Removal Fee = $2,000 flat fee + $25 per dock, per day of closure  Example for a 31 dock station, for a 2 day removal: $2,000 + {$25 * 31 * 2} = $3,550.00

SCENARIO #3 - TEMPORARY RELOCATION OF A STATION

Entire station and all bikes are removed and relocated to a new location for the duration of the work. In situations where a safe and suitable temporary location cannot be accommodated, a full removal of the station may be necessary and the fees for station removal (below) will be incurred instead. For active construction and for special events only.

Station Relocation Fee = $2,000 flat fee + $15 per dock removal fee  Example for a 31 dock station: $2,000 + {$15 * 31} = $2,465.00

Any station that will be permanently relocated will come at a charge of $4,000.

Page 25 of 27 EXHIBIT C

Insurance Requirements and Evidence of Insurance

The Operator must provide and maintain at Operator’s own expense, until Agreement completion and during the time period following completion if Operator is required to perform any additional work, the insurance coverages and requirements specified below, insuring all operations related to the Agreement.

A. INSURANCE TO BE PROVIDED

1) Workers Compensation and Employers Liability Workers Compensation Insurance, as prescribed by applicable law covering all employees who are to provide work under this Contract and Employers Liability coverage with limits of not less than $500,000 each accident, illness or disease.

2) Commercial General Liability (Primary and Umbrella) Commercial General Liability Insurance or equivalent with limits of not less than $2,000,000 per occurrence for bodily injury, personal injury, and property damage liability. Coverages must include the following: All premises and operations, products/completed operations explosion, collapse, underground, separation of insureds, defense, and contractual liability (not to include Endorsement CG 21 39 or equivalent). The City is to be named as an additional insured via blanket endorsement on a primary, non-contributory basis for any liability arising directly or indirectly from the work.

Subcontractors performing work for the Operator must maintain limits of not less than $1,000,000 with the same terms herein.

3) Automobile Liability (Primary and Umbrella) When any motor vehicles (owned, non-owned and hired) are used in connection with work to be performed, the Operator must provide Automobile Liability Insurance with limits of not less than $2,000,000 per occurrence for bodily injury and property damage. The City is to be named as an additional insured via blanket endorsement on a primary, non-contributory basis.

Subcontractors performing work for the Operator must maintain limits of not less than $1,000,000 with the same terms herein.

4) Property All Risk The Operator must maintain All Risk Property Insurance at full replacement cost covering all loss, damage or destruction to the machinery, equipment, bicycles, stations and/or any facility/property (if applicable) including improvements and betterments. The City of Evanston is to be named as an additional insured via blanket endorsement and loss payee. The Operator is responsible for all loss or damage to City property and to personal property of Operator (including bicycles, materials, equipment, stations, fixtures and contents) that are part of this Agreement.

Page 26 of 27 B. ADDITIONAL REQUIREMENTS The Operator must furnish the City of Evanston, 2100 Ridge Avenue, Evanston, IL 60201, original Certificates of Insurance, or such similar evidence, to be in force on the date of this Agreement, and Renewal Certificates of Insurance, or such similar evidence, if the coverages have an expiration or renewal date occurring during the term of this Contract. The receipt of any certificate does not constitute agreement by the City that the insurance requirements in the Agreement have been fully met or that the insurance policies indicated on the certificate are in compliance with all Contract requirements. The failure of the City to obtain certificates or other insurance evidence from Operator is not a waiver by the City of any requirements for the Operator to obtain and maintain the specified coverages. The Operator must advise all insurers of the Contract provisions regarding insurance. Non-conforming insurance does not relieve Operator of the obligation to provide insurance as specified herein. Nonfulfillment of the insurance conditions may constitute a violation of the Agreement, and the City retains the right to stop work until proper evidence of insurance is provided, or the Agreement may be terminated.

Any deductibles or self-insured retentions on referenced insurance coverages must be borne by Operator. The Operator hereby waives and agrees to require their insurers to waive their rights of subrogation against the City, its employees, elected officials, agents, or representatives.

The coverages and limits furnished by Operator in no way limit the Operator's liabilities and responsibilities specified within the Contract or by law.

Any insurance or self insurance programs maintained by the City do not contribute with insurance provided by the Operator under the Agreement.

The required insurance to be carried is not limited by any limitations expressed in the indemnification language in this Agreement or any limitation placed on the indemnity in this Agreement given as a matter of law.

The Operator must require all subcontractors to provide the insurance required herein, or Operator may provide the coverages for subcontractors. All subcontractors are subject to the same insurance requirements of Operator unless otherwise specified in this Agreement.

If Contractor or subcontractor desires additional coverages, the party desiring the additional coverages is responsible for the acquisition and cost.

Page 27 of 27