MINNEAPOLIS BIKE SHARE PROGRAM AND PILOT AGREEMENT
This MINNEAPOLIS BIKE SHARE PROGRAM AND PILOT AGREEMENT (this “Agreement”) is entered into by and between Motivate Minnesota, LLC, a Delaware limited liability company, having an office at 220 36th Street, Suite 3A, Brooklyn, New York 11232 (“Motivate”) and Nice Ride Minnesota, Inc. a Minnesota nonprofit corporation, having an address at 2701 36th Avenue South, Minneapolis, Minnesota 55406 (“Manager”). Motivate and Manager are referred to herein individually as a “Party” and collectively as the “Parties.” 8D Technologies ULC, a British Columbia unlimited liability company, is a party for the limited purposes of Article XI.
RECITALS
WHEREAS, the City of Minneapolis (“City”) and Manager entered into that Grant Funded Agreement dated as of April 28, 2010 (as the same has been amended from time to time, “GFA”) whereby Manager undertook to administer a bicycle share program in the municipal boundaries of the City and the City undertook to serve as fiscal agent for disbursement of certain grant proceeds in furtherance of the Program; and
WHEREAS, Manager has successfully operated the Program since its launch in 2010 with 65 stations and 700 bicycles and expanding to 201 stations and 1,850 bicycles, having piloted new tools and programs to introduce Minnesotans to cycling and having invested in facilities, equipment, its staff, and the community; and
WHEREAS, in light of the Program’s aging stock of equipment and dramatic global industry changes, Manager desires to reach larger populations by pursuing privately-funded expansion of the Program with innovative technologies while fulfilling Manager’s obligation to utilize grant funded equipment for its useful life; and
WHEREAS, City and Manager have amended and restated the GFA as of June 4, 2018 (the “Amended Grant Funded Agreement” or “Amended GFA”), granting Manager the exclusive right to operate a bicycle share program in the City as more fully described herein (the “Program”), and further authorizing Manager to subcontract such right, among others, to a preferred subcontractor, including with respect to the Transition Plan; and
WHEREAS, Manager conducted a competitive procurement and on December 18, 2017, selected Motivate’s bid as the most advantageous to Manager and the City; and
WHEREAS, Motivate has developed a Transition Plan (as defined herein), setting forth a beneficial disposition of the grant funded assets and providing for continuity of service and rational expansion of the bicycle share program in the City, which Transition Plan, among other things, contemplates the introduction of Dockless Bike Sharing (as defined in the Amended GFA) and electric bicycles to the Program; and
WHEREAS, the City has signed a License Agreement with Manager establishing processes by which Dockless Bike Sharing will be permitted that are new in North America, including by
requiring a “Virtual Station Master Plan” and site plans for Dockless Bike Sharing parking locations (“Pilot”).
WHEREAS, Motivate desires to help achieve civic goals related to equity, innovation, experimentation, and maintaining order in the City’s right-of-way by providing high-quality, reliable equipment; seamless customer service; comprehensive, meaningful equity programs; and collaboration with municipal and non-profit partners; and
WHEREAS, the Parties desire that Manager provide oversight of the Program and foster collaboration among the various ROW owners (as defined herein); and
WHEREAS, the Manager’s Board of Directors has, through adoption of a 2018 Update to Nonprofit Business Plan, determined that the most effective approach to further its nonprofit mission and to continue to use its assets for the benefit of the public is by entering into and overseeing performance of 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:
ARTICLE I 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.
“Affiliate” means with respect to a specified person or entity, any other person or entity directly or indirectly controlled by, controlling, or under common control with the specified person or entity.
“Amended Grant Funded Agreement” or “Amended GFA” has the meaning set forth in the Recitals.
“Annual Membership Fee” has the meaning set forth in Section 8.1.1.
“Annual Membership Fee Cap” has the meaning set forth in Section 8.1.1.
“Assets” has the meaning set forth in Section 6.2.
“BCBSM Agreement” has the meaning set forth in Section 6.6.1.
“Bicycle” or “bicycle” has the meaning given to such term in Minnesota Statute Section 169.011 (as in effect on the Effective Date), and includes bicycles with electric-assist functionality.
“Bike Share 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 a ROW Owner.
“City” has the meaning set forth in the Recitals.
“Claims” has the meaning set forth in Section 19.1.
“Closing Date” means the later of July 2, 2018 and the date on which the conditions precendent set forth in Section 3.1 have been satisfied or specifically waived by Motivate.
“Community” has the meaning set forth in Attachment A, Section 8.7(1).
“Confidential Information” has the meaning set forth in Section 20.1.
“CPI” means the Consumer Price Index for Minneapolis-St. Paul, as measured by the Consumer Price Index for All Urban Consumers, as published from time to time by the Bureau of Labor Statistics, U.S. Department of Labor.
“CPI Adjustment” means, with respect to a specific cost or fee, that such cost or fee is subject to annual adjustment each February 1 based on changes in the CPI from the Effective Date to the date of adjustment.
“Disclosing Party” has the meaning set forth in Section 20.1.
“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; shortages or failures of sources of labor, material, energy, fuel, water, other vital utility, equipment or transportation; or other similar causes or events to the extent that such causes or events are beyond the control of Motivate.
“Expansion Targets” has the meaning set forth in Section 4.1.
“GFA” or “Grant Funded Agreement” has the meaning set forth in the Recitals.
“Grant Funded Equipment” means the bicycles and Stations purchased and operated by Manager pursuant to the GFA and were deployed in the Program as of the Closing Date.
“Indemnity Claim” has the meaning set forth in Section 19.4.
“Initial Expansion” has the meaning set forth in Section 4.1.1.
“Intellectual Property” means (a) trade dress, trade names, service marks, copyrights, logos, taglines, patents, slogans, color schemes, designs or other valuable marks, whether common law or registered, state or federal or other jurisdiction, (b) patents, patent rights or
applications, trade secrets, all forms of protection applicable to inventions, conceptions, methods, procedures, processes, designs, works of authorship, derivative works, algorithms, and utility models or (c) other forms of intellectual or industrial property under the laws of any jurisdiction.
“Lease” means that certain Lease dated on or about the date hereof between the Manager and Motivate with respect to the property located at 2701 36th Avenue South, Minneapolis, Minnesota 55406.
“Liabilities” has the meaning set forth in Section 19.1.
“License” has the meaning set forth in Section 3.2.1.1.
“Manager Indemnitees” has the meaning set forth in Section 19.1.
“Motivate Indemnitees” has the meaning set forth in Section 19.2.
“Nice Ride Marks” means the names, logos, trademarks, service marks, slogans, graphics and other Intellectual Property associated with the Program as of the Effective Date, shown on Attachment E hereto.
“Operating Agreement” means the Operating Agreement for Grant Funded Agreement attached hereto as Attachment F.
“Parks” means the Minneapolis Parks and Recreation Board.
“Pilot” has the meaning set forth in the Recitals.
“Program” has the meaning set forth in the Recitals.
“Program Marks” has the meaning set forth in Section 14.1.
“Program Revenues” has the meaning set forth in Section 7.1.
“Prohibited Content” means content that is false or misleading; that constitutes political messaging; that promotes tobacco, alcohol, or firearms; that promotes unlawful conduct or illegal goods, services or activities; or that is otherwise unlawful or obscene.
“Receiving Party” has the meaning set forth in Section 20.1.
“Removal Operations” has the meaning set forth in Section 3.4.1.
“ROW Owner” means the City, the University, or Parks.
“ROW Owner Agreement” has the meaning set forth in Section 3.1.
“Single Ride Fare” has the meaning set forth in Section 8.1.1.
“Single Ride Fare Cap” has the meaning set forth in Section 8.1.1.
“Station” means a designated area in which users of the Program may end a ride, and which may include any combination of kiosks, map frames, and equipment to which bicycles are able to be locked.
“Term” has the meaning set forth in Section 2.2.
“Transition Plan” has the meaning set forth in Section 4.4.
“University” means the University of Minnesota.
“Visitor Pass Fee” has the meaning set forth in Section 8.1.4.
“Visitor Pass Fee Cap” has the meaning set forth in Section 8.1.4.
ARTICLE II SERVICES; TERM
2.1 Services. Motivate hereby agrees to provide the services related to operating the Program and Pilot in the City of Minneapolis as set forth in Attachment A commencing on the Closing Date and throughout the remainder of the Term (the “Services”), subject to the terms and conditions of this Agreement. Motivate shall notify Manager before entering into any subcontract, for any portion of the Services, of over $50,000 per year.
2.2 Term. The Term will begin on the execution of this Agreement between Manager and Motivate (the “Effective Date”) and shall run until the fifth anniversary of the Closing Date, unless otherwise terminated in accordance with the terms hereof (the “Term”).
ARTICLE III CONDITIONS PRECEDENT; CONDITIONS SUBSEQUENT; EXCLUSIVITY
3.1 Conditions Precedent. The Closing Date shall be subject to the fulfillment of each of Manager’s obligations under Sections 6.5 and 6.6.
3.2 Conditions Subsequent. Subject to Section 3.3 hereof, Motivate may terminate the Agreement if any of the following conditions subsequent have not been fulfilled by the dates specified below:
3.2.1 Agreements between each ROW Owner on the one hand, and the Manager on the other (each such agreement, a “ROW Owner Agreement”), in each case subject to Motivate’s review and approval, and containing at least the following terms, shall have been executed by September 30, 2018:
3.2.1.1 a grant to the Manager of an exclusive, irrevocable (except as set forth in the termination provisions of the respective ROW Owner Agreement), license to operate a Bike Share System within the boundaries of the respective ROW Owner during the term of such ROW Owner Agreement (each, a “License”), and a further grant to the Manager of the right to transfer and assign such License to Motivate through a subcontract;
3.2.1.2 agreement by the respective ROW Owner that in furtherance of the License, it will not license, authorize or permit another entity to operate a Bike Share System during the term of such ROW Owner Agreement, and a further covenant by the respective ROW Owner to enforce to the fullest extent reasonably practicable all applicable laws so as to protect Manager’s License, or Motivate’s License, as conveyed to Motivate by the Manager;
3.2.1.3 a grant to Manager of the exclusive, rights throughout the term of the respective ROW Owner Agreement to (i) sell and place sponsorship and advertising, including title sponsorship, on all Program assets (including Grant Funded Equipment) within the boundaries of the respective ROW Owner, and (ii) collect all revenues generated by such sponsorship and advertising activities, and (iii) transfer and assign the exclusive rights set forth in subsections (i) and (ii) to Motivate; provided, however, that sponsorships or advertising may not include Prohibited Content; and further provided, however, that the University’s and Parks’ grant of such sponsorship and advertising rights with respect to Station posters may be subject to their respective approvals of specific poster content.
3.2.2 Motivate shall have entered into a sponsorship agreement with a title sponsor or presenting sponsor of the Program which is reasonably satisfactory to Motivate in its sole discretion within twelve (12) months of the Effective Date.
3.3 Termination for Failure to Satisfy Conditions Subsequent. If Motivate terminates the Agreement pursuant to Section 3.2, then, at the request of Manager, Motivate shall promptly transfer back to Manager: (i) any of the Assets (as defined in Section 6.2) that remain in Motivate’s possession or under its control as of the date of such election to terminate (including, without limitation any Licenses, sponsorship and advertising rights under each ROW Owner Agreement); (ii) the Nice Ride Marks; and (iii) if such termination occurs before November 4, 2018, the unamortized amount (amortized on a straight line basis over a period from the Closing Date to November 4, 2018), as of the date of such termination, of the operating fee set forth in Section 6.6.1. For the avoidance of doubt, nothing in this paragraph shall limit Motivate’s right to use or dispose of spare parts, tools, equipment, furniture, vehicles or other Assets in Motivate’s sole judgment to operate its business; provided, however, that Motivate may not liquidate any Assets after making an election to terminate pursuant to Section 3.2 other than in the ordinary of course of operating the Program until such date of termination.
3.4 Exclusivity. Manager hereby transfers and assigns, or (in the case of a ROW Owner Agreement executed after the Effective Date) agrees to transfer and assign as soon as reasonably practicable, to Motivate the Licenses and the sponsorship and advertising rights granted to the Manager under each ROW Owner Agreement. Manager shall use best efforts to enforce the rights granted under ROW Owner Agreements, including by, if reasonably requested by Motivate, initiating legal action to enforce the ROW Owner Agreements. Motivate will pay all actual, reasonable, out-of-pocket costs and attorneys’ fees associated with such an action, if initiated at its request.
3.4.1 Removal Operations. Within ninety (90) days of any grant by the City to Manager of the right to (i) impound bicycles of unlicensed Bike Share Systems and charge the owner an administrative processing fee (“Removal Operations”), or (ii) authorize and subcontract to Motivate or another third party the right and responsibility to perform Removal
Operations, Manager shall enter into a subcontract for Removal Operations and shall provide evidence of such subcontract to Motivate.
3.5 Renewal. If the term of any ROW Owner Agreement (as defined below) is less than five (5) years, then at least six (6) months before the expiration of such ROW Owner Agreement, Manager will use best efforts to extend such ROW Owner Agreement through the Term of this Agreement; provided that at such time Motivate has achieved the Expansion Targets (as defined below).
3.6 No Impairment of Rights. (i) Manager shall comply with the terms and provisions of each ROW Owner Agreement in all material respects and (ii) Manager shall not consent to the termination of any of the ROW Owner Agreements and shall not make or consent to any change, amendment or modification to any of the ROW Owner Agreements if any such amendment or modification could reasonably be expected to result in a material impairment of the rights and remedies of Motivate under this Agreement, or a material adverse effect upon the legality, validity, binding effect or enforceability against Manager of this Agreement.
ARTICLE IV EXPANSION
4.1 Motivate will deploy new bicycles to the Program according to the following schedule (“Expansion Targets”):
4.1.1 at least 1,500 bicycles in 2018 (the “Initial Expansion”);
4.1.2 at least 1,500 additional bicycles in 2019;
4.1.3 if average daily ridership during 2019, calculated in accordance with Section 4.2, is at least 2.0 trips per bicycle; at least 1,500 additional bicycles in 2020; and
4.1.4 if average daily ridership during 2020, calculated in accordance with Section 4.2, is at least 2.0 trips per bicycle; at least 1,500 additional bicycles in 2021.
4.2 For the purposes of calculating average daily ridership under Sections 4.1.3 and 4.1.4, the average shall be measured over the full calendar year (excluding days during which the system is not in service) taking into account all bicycles that have been deployed in the Program. For example, if there were 2.5 million rides on 3,000 Program bicycles in a given calendar year, average daily ridership for such calendar year would be calculated as follows: 2,500,000 / (3,000 x 365) = 2.28 trips per bicycle.
4.3 Except as set forth in Section 4.5, Motivate may satisfy the Expansion Targets with any combination of self-locking bicycles, bicycles equipped with on-board locks enabling such bicycles to be locked to city bicycle racks or other objects (i.e., “lock-to” bicycles), or electric bicycles, in its discretion, and may continue to evolve and adjust the product offering over time based on the evolution of technology and its findings operating the Program.
4.4 Motivate will continue to operate the Grant Funded Equipment at least until deployment of the Initial Expansion; provided that Motivate may relocate to Minneapolis any
Grant Funded Equipment previously or currently sited in the City of St. Paul. After the Initial Expansion, Motivate will operate the Grant Funded Equipment in accordance with the continuation and transition plan set forth in Attachment B (“Transition Plan”).
4.5 Motivate will introduce a pilot of at least 150 electric bicycles no later than 2019, and a pilot of winter bicycles no later than 2021.
ARTICLE V PRODUCT DEVELOPMENT
5.1 Motivate will make commercially reasonable efforts to notify Manager of new product development, including opportunities for the Program to pilot new products and user interfaces as they become available on terms mutually agreeable between the Parties.
5.2 Motivate agrees to notify Manager in advance in writing if Motivate intends to discontinue any bicycle product or user interface Motivate has deployed in the Program.
ARTICLE VI OWNERSHIP
6.1 Motivate will retain ownership of all new equipment deployed in the Program. Manager will retain ownership of Grant Funded Equipment until it is decommissioned in accordance with the Transition Plan and the Operating Agreement.
6.2 On the Effective Date, but subject to Section 3.3 hereof, Manager hereby transfers and assigns to Motivate (i) all right, title and interest in and to the assets set forth in Attachment C but not including the “Premises” as defined in the Lease (the “Assets”) subject to reduction by any quantity of spare parts expended in Manager’s operation of the Program between the Effective Date and the Closing Date and (ii) any seller’s, manufacturer’s or other third-party warranties of the Assets. Within thirty (30) days after the Effective Date, Manager shall provide Motivate with records in its possession related to Asset ownership, such as warranty documentation and purchase receipts related to acquisition of the assets, if any. Within five (5) days of the Effective Date, Manager shall execute and deliver any instruments of sale, transfer, conveyance, or assignment necessary to transfer the Manager’s rights to, and title in, the Assets to Motivate, if any. Until the earlier of the expiration or termination of this Agreement and the disposal of any Assets at the end of such Assets’ useful life, Motivate will maintain the Assets in Minnesota and use them only for the purposes of the Program.
6.3 For those Assets indicated in Attachment C as having loans, Motivate will assume or pay off such loans.
6.4 Other than the third-party warranties described in Section 6.2, if any, Manager makes no warranties or guarantees regarding the physical condition of the Assets, and the Assets are transferred “as is” in their current condition.
6.5 On or before the Closing Date, Manager will lease to Motivate the Property (as defined in the Lease) on the terms and conditions set forth in the Lease. The Lease shall include
an option to purchase the Property upon completion of the Term, subject to the terms and conditions set forth in the Lease.
6.6 On or before the Closing Date, Manager will assign to Motivate, and take all steps necessary to effectuate the transfer of:
6.6.1 an operating fee of $125,000.00 pertaining to subscriptions sold by Manager prior to the Effective Date that Motivate will continue to serve through the completion of the 2018 season;
6.6.2 all amounts, which as of the Effective Date have not been spent on Program operations, that Manager has received pursuant to that Amended and Restated Sponsorship Agreement by and between Manager and BCBSM, Inc., dba Blue Cross and Blue Shield of Minnesota dated as of December 22, 2015 (“BCBSM Agreement”); and
6.6.3 any other contracts to which Manager is a party and which are necessary or useful for operating the Grant Funded Equipment or the Pilot.
6.7 Manager represents that Manager has obtained approval from the United States Department of the Interior National Park Service (“NPS”) of a revised budget proposal under that Modification Number 02 to Cooperative Agreement P16AC00007 between the NPS and Manager dated as of September 7, 2017 (“NPS Grant”) that would enable Manager to use such funds for transition costs and to compensate Community Design Group and Motivate for Pilot costs. Subject to the terms of the NPS Grant, Manager will use NPS Grant funds to reimburse Motivate in accordance with such revised budget for services Motivate will provide under this Agreement;
6.8 Following the Closing Date, Manager and Motivate shall each use best efforts to jointly obtain consent from Metropolitan Council to use funds pursuant to that Award Letter from the Transportation Advisory Board of the Metropolitan Council to Manager dated as of February 15, 2017 (“Met Council Grant”), which were awarded for station expansion, to expand the Pilot and to further other congestion mitigation goals. Subject to the terms of the Met Council Grant and any such consent as the Parties are able to to obtain, Manager will use Met Council Grant funds to reimburse Motivate for services Motivate will provide under this Agreement.
ARTICLE VII SYSTEM REVENUE
7.1 Commencing on the Closing Date, Motivate will collect all revenues generated by the Grant Funded Equipment on behalf of the Manager and Manager will pay to Motivate an operating fee for Motivate’s operation of the Grant Funded Equipment, as set forth in the Operating Agreement.
7.2 Commencing on the Closing Date, Motivate will collect and retain all revenues generated by the equipment it supplies to the Program and all sponsorship revenues (collectively, “Program Revenues”).
7.3 Commencing on the Closing Date, Motivate will pay to Manager $65,000 each year, payable in monthly installments corresponding to Manager’s actual expenses; provided that such payment will be prorated for any calendar year during which the Agreement is in effect for less than twelve (12) months; which funds are intended to enable the Manager to staff its oversight function, maintain insurance coverage, and meet its other obligations under this Agreement.
7.4 If 10% of any excess of Program Revenues for such calendar year over $11,000,000 (“Revenue Share”) is greater than $65,000, then within sixty (60) days of the end of such calendar year, Motivate will pay to Manager the difference between the Revenue Share and $65,000.
ARTICLE VIII SUBSCRIPTIONS AND PRICING
8.1 Pricing. With the goals of optimizing utilization of the Program and sustainability of the Program’s business model, Motivate will offer subscriptions in accordance with the following.
8.1.1 Single Ride Fare. Motivate will offer a single ride fare, which includes 30 minutes of riding time, for a fee (the “Single Ride Fare”) in an amount not to exceed the Single Ride Fare Cap. The “Single Ride Fare Cap” from the Closing Date until December 31, 2018 will be $1.00 for purchases made through the Program mobile application and $2.00 for purchases made at a Program kiosk, and after December 31, 2018 will be the cost of the City local rush hour bus fare across all purchase platforms.
8.1.2 Annual Memberships. If Motivate offers an annual membership that includes unlimited rides of 60 minutes or less, the fee for such membership (the “Annual Membership Fee”) shall not to exceed the Annual Membership Fee Cap. The “Annual Membership Fee Cap” from the Closing Date until December 31, 2018 will be $95, and after December 31, 2018 will be $125, subject to CPI Adjustment plus 2%.
8.1.3 Income-Eligible Membership. Motivate will offer a discounted annual membership to income-eligible individuals as set forth in Attachment D.
8.1.4 Visitor Pass. Motivate will offer a visitor pass, which includes unlimited 3-hour rides during a 24-hour period, for a fee (the “Visitor Pass Fee”) in an amount not to exceed the Visitor Pass Fee Cap. The “Visitor Pass Fee Cap” from the Closing Date until December 31, 2018 will be $9.95, and after December 31, 2018 will be $12.95, subject to CPI Adjustment plus 2%.
8.2 Discretionary Pricing. Subject to Section 8.1, Motivate may introduce or conduct trials of different pricing models in order to optimize ridership and utilization of the Program, and in its sole discretion, may apply dynamic usage, out-of-home, out-of-hub and other fees, including, without limitation, fees or credits with respect to:
8.2.1 use of an electric bicycle;
8.2.2 a user’s ride time exceeding the free ride time allotted to the user’s subscription type;
8.2.3 a user locking a bicycle outside of the Program area;
8.2.4 a user locking a bicycle inside the Program area, but outside of a Station;
8.2.5 a user bringing a bicycle to specific Stations or to Stations from outside of Stations;
8.2.6 a user bringing a bicycle to a location where because of typical commuting patterns it is likely to remain for a significant period of time (e.g., a corporate campus);
8.2.7 a user bringing or taking a bicycle to or from a major commuter hub during peak commuting hours; and
8.2.8 reserving a bicycle in advance.
8.3 Subscription Types. Motivate may, in its sole discretion from time to time, develop and offer additional subscription types.
8.4 Prior Subscriptions. Motivate will honor through the ends of their terms any subscriptions sold by Manager before the Closing Date.
ARTICLE IX EQUITY
9.1 Motivate will administer a low-income program at its cost, including the following elements:
9.1.1 a discounted annual membership type at the Income-Eligible Annual Membership Fee as set forth in Section 8.1.3;
9.1.2 multilingual outreach marketing;
9.1.3 commercially reasonable efforts to implement cash payment options;
9.1.4 programming, in partnership with community organizations, to introduce new audiences to bicycle share, such as group rides and riding classes.
9.2 Motivate will rebalance bicycles as set forth in Attachment A to ensure equitable access to the Program throughout the service area.
9.3 Motivate will work with Manager in good faith to implement the “Equity Plan” attached hereto as Attachment D.
ARTICLE X ADDITIONAL RESPONSIBILITIES OF MANAGER
10.1 Third-Party Licenses. Manager will assist with third-party leases, licenses or permits as needed. Nothing in this Agreement will restrict the right of Motivate to enter into an agreement with the owner of private property, on terms mutually acceptable to Motivate and such owner, to locate a station on such owner’s property or provide for sponsorship of a local station.
10.2 Permitting. Manager agrees to assist Motivate in securing any permits needed to operate the Program and Pilot.
ARTICLE XI SOFTWARE LICENSE
Motivate and 8D Technologies ULC agree that, if, at any time before all Grant Funded Equipment has been decommissioned, (i) Motivate makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of any or all of Motivate’s property, or Motivate seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding or such a proceeding is instituted against Motivate and is not dismissed within sixty (60) days, or Motivate becomes insolvent or, without a successor, dissolves, liquidates, or otherwise fails to operate in the ordinary course; or (ii) this Agreement is terminated for an uncured material breach by Motivate pursuant to Section 16.1; or (iii) Motivate terminates this Agreement pursuant to Section 3.2; then, if requested by Manager, 8D Technologies ULC will enter into a license agreement with Manager for use of the backend software used to operate the Grant Funded Equipment on the same terms in place prior to this Agreement until November 15, 2021.
ARTICLE XII PROGRAM DATA
12.1 Historical Datamart. Manager hereby grants Motivate a non-exclusive, royalty- free, irrevocable, perpetual license to use, as of the Effective Date, all data in Manager’s back- end datamart created before the Closing Date (hosted by 8D Technologies), provided that, with respect to such data, Motivate shall continue to comply with Manager’s User Agreements and Privacy Policy applicable to such data.
12.2 Use of Data. All data generated by the Program will be owned by Motivate. Motivate will grant Manager a non-exclusive, royalty-free, irrevocable, perpetual license to use all data generated by the Program, other than personally-identifiable information that can identify individual users, their addresses, their credit card information or other personal information about users, for non-commercial purposes and on a real-time basis. Manager may sublicense the data described in this section, on the same terms as such data is licensed to Manager, to the City.
12.3 Publication. Motivate will publish aggregate Program ridership data and non- personally identifiable trip record data on a quarterly basis. Real-time or semi-real-time Program data will be made accessible online in General Bikeshare Feed Specification (GBFS) format.
ARTICLE XIII COLLABORATION WITH CITY
13.1 Annual Meetings. Motivate will meet with Manager and the City at least once per year to discuss the Program and will solicit feedback on successful aspects of, and gather input on potential improvements to, the Program.
13.2 Technology Integration. On a case-by-case basis, Motivate will discuss with Manager and the City opportunities for technologies developed by the City or community partners to integrate with Motivate APIs in order to enhance the Program.
13.3 Data Transparency. Subject to the terms and conditions of this Agreement, Motivate will provide to Manager and the City, at no cost, client-level access to the Program’s backend software.
ARTICLE XIV INTELLECTUAL PROPERTY
14.1 Marks. On the Effective Date, but subject to Section 3.3 hereof, Manager hereby transfers to Motivate all interest in the Nice Ride Marks. If this Agreement terminates early due to a material breach by Motivate pursuant to Section 16.1, the Nice Ride Marks shall, at the request of Manager, be promptly transferred back to Manager. Motivate may, in its discretion or in coordination with a title sponsor, select the official name or title and logos of the Program and Pilot (together with all trademarks, service marks, slogans, trade dress and other marks associated with the Program and Pilot, the “Program and Pilot Marks”). The Program and Pilot Marks shall be the Intellectual Property of Motivate.
14.2 Other Intellectual Property Rights. All right, title, and interest in and to any Intellectual Property developed under this Agreement by Motivate will be the exclusive property of Motivate. Motivate does not convey to Manager, nor does Manager obtain, any right to any Intellectual Property owned by Motivate.
ARTICLE XV REPRESENTATIONS AND WARRANTIES
15.1 Motivate. Motivate hereby represents and warrants that:
15.1.1 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;
15.1.2 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;
15.1.3 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;
15.1.4 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;
15.2 Manager. Manager hereby represents and warrants that:
15.2.1 Manager has good and marketable title to all Assets and that Manager’s title to all the Assets is free and clear of any liens and encumbrances, excepting loans and mortgages listed on Attachment C;
15.2.2 the principal terms of the Asset transfer as set forth in this Agreement were duly and legally approved by all necessary pertinent agencies or parties, and comply with all required governmental approvals and authorizations;
15.2.3 Manager has full power and authority to enter into and perform this Agreement in accordance with its terms, has been authorized to do so by the City, and does not require the consent of any third party that has not been secured, and all requisite action has been taken by Manager 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;
15.2.4 this Agreement is a valid, legally binding obligation of and enforceable against Manager in accordance with its terms and execution of this Agreement by Manager will not cause a breach of any other agreement to which Manager is a party;
15.2.5 Manager 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
15.2.6 Manager maintains insurance with coverage types and amounts reasonably necessary to satisfy its obligations and liabilities in connection with this Agreement and the Program.
ARTICLE XVI TERMINATION
16.1 Failure or Breach. Except as set forth in Section 16.4, if either Party materially breaches this Agreement, then the non-breaching Party will give the breaching Party written notice of such breach and 30 days to cure such breach. If the breaching Party fails to cure such breach by the expiration of such 30-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.
16.2 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.
16.3 Sole Remedies. Except for Motivate’s indemnification, defense and hold harmless obligations under Article XIX and except as otherwise expressly provided for herein, the sole remedy of Manager against Motivate for breach of this Agreement, excluding a breach of Article XIX, or for failure to provide the Services satisfactorily, is to terminate this Agreement in accordance with Article XVI. In no event will Motivate be liable for damages of any kind for breach of this Agreement, other than a breach of Article XIX, or for failure to provide the Services satisfactorily.
16.4 Termination on Bankruptcy. Manager may terminate this Agreement upon the occurrence of any of the following events: Motivate (a) has an order for relief entered with respect to it under title 11 of the U.S. Code or the corresponding provisions of any successor laws, (b) makes an assignment of all or substantially all of its assets for the benefit of creditors, (c) applies for, seeks, consents to, or acquiesces in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or all or substantially all of its assets, (d) institutes any proceeding under title 11 of the U.S. Code or the corresponding provisions of any successor laws or fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (e) fails generally to pay, or admits in writing its inability to pay, its debts as they become due.
ARTICLE XVII DISPUTE RESOLUTION
17.1 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”):
17.1.1 Manager’s Executive Director and Motivate’s General Manager, or their respective delegates, will meet, within 10 days after receipt by one Party of notification from the other Party of such dispute, to negotiate in good faith in order to try to resolve such dispute (the date of the first such meeting, or the expiration of such 10-day period if the meeting is not timely held, being the “Initial Meeting Date”). If such persons fail to resolve such dispute within 15 days after the Initial Meeting Date, then Manager’s Executive Director and a Vice President or the President of Motivate will meet promptly and negotiate in good faith in order to resolve such dispute. If such persons fail to resolve such dispute within 30 business days after the Initial Meeting Date, then such dispute will be subject to mediation. A meeting may be held in person, by conference call or by videoconference. By agreement of the Parties, any of the deadlines set forth in this section may be extended or shortened. The process described in this section will be confidential and treated as a compromise negotiation for purposes of federal and state rules of evidence.
17.1.2 Unless the Parties otherwise agree, mediation will be administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Rules, or similar service. A request for mediation will be made in writing, delivered to the other Party and filed with the applicable mediation service. Either Party may submit such request. The Parties
will share the mediator’s fee and any filing fees equally. The mediation will be held in Minneapolis, Minnesota. The Parties will be represented by individuals of their choosing. Agreements reached in mediation will be binding on the Parties and enforceable in a State or Federal Court of competent jurisdiction sitting in Hennepin County, Minnesota. The mediation process will be confidential and treated as a compromise negotiation for purposes of federal and state rules of evidence.
17.1.3 As used in this Agreement, “final resolution” of a dispute or a dispute being “finally resolved” means that (a) the Parties have entered into a settlement agreement to resolve such dispute, or (b) if either Party has initiated a judicial proceeding to contest such dispute, that a final-non-appealable order of a court of competent jurisdiction has been issued for such dispute.
ARTICLE XVIII INSURANCE
18.1 Minimum Coverages. The insurance requirements specified in this section will cover Motivate’s own liability and the liability arising out of work or services performed under this Agreement by any subconsultants, subcontractors, suppliers, temporary workers, independent contractors, leased employees, or any other persons, firms or corporations that Motivate authorizes to work under this Agreement (hereinafter referred to as “Agents”). Motivate will, at its own expense, obtain and maintain in effect at all times during the life of this Agreement the following types of insurance against claims, damages and losses due to injuries to persons or damage to property or other losses that may arise in connection with the performance of work under this Agreement. Manager will maintain the insurance coverages required by the Amended GFA and License and will maintain insurance with respect to director liability for errors and omissions.
18.2 Motivate and its Agents may satisfy the policy limits required by this Article XVIII through a combination of primary and excess or umbrella policies. In the event Motivate or its Agents procure excess or umbrella coverage to maintain certain requirements outlined below, these policies will also satisfy all specified endorsements and stipulations, including provisions that Motivate’s or its Agent’s insurance, as the case may be, be primary without right of contribution from Manager.
18.2.1 Workers’ Compensation Insurance with Statutory limits, and Employer’s Liability Insurance with a limit of not less than $1,000,000 per employee for injury by disease and $1,000,000 for injury for each accident, and any and all other coverage of Motivate’s employees as may be required by applicable law. Such policy will contain a waiver of subrogation in favor of Manager. Such Workers’ Compensation & Employer’s Liability may be waived, if and only for as long as Motivate is a sole proprietor or a corporation with stock 100% owned by officers with no employees.
18.2.2 Commercial General Liability Insurance for Bodily Injury and Property Damage liability, covering the operations of Motivate and Motivate’s officers, agents, and employees and with limits of liability which will not be less than $4,000,000 per occurrence with a general aggregate liability of not less than $5,000,000; Personal & Advertising Injury liability
with a limit of not less than $2,000,000; damage to rented premises liability with a limit of not less than $100,000 per occurrence; and medical expense coverage for any one person of $10,000. Such policy will contain a waiver of subrogation in favor of Manager. Such insurance will be primary and contain a separation of insureds clause as respects any claims, losses or liability arising directly or indirectly from Motivate’s operations.
18.2.3 Business Automobile Insurance for all automobiles owned (if any), used or maintained by Motivate and Motivate’s officers, agents and employees, including but not limited to owned (if any), leased (if any), non-owned and hired automobiles, with limits of liability which will not be less than $1,000,000 combined single limit per accident.
18.2.4 Errors and Omissions Professional Liability Insurance for errors and omissions and the resulting damages, including, but not limited to, economic loss to Manager and having minimum limits of $1,000,000 per claim and $2,000,000 annual aggregate. Such policy will contain cyber risk coverages including network and internet security liability coverage, privacy liability coverage and media coverage. Motivate may delegate the obligation to maintain Errors and Omissions Professional Liability Insurance to an Agent, but the failure of such Agent to maintain such insurance will not relieve Motivate of its obligation to maintain such insurance.
18.2.5 Property Insurance covering Motivate’s own business personal property and equipment to be used in performance of this Agreement. Coverage will be written on a “Special Form” policy that includes theft, but excludes earthquake, with limits at least equal to the replacement cost of the property. Such policy will contain a waiver of subrogation in favor of Manager. For the avoidance of doubt, neither Party shall be required to maintain property insurance covering the Grant Funded Equipment.
18.3 Acceptable Insurers. All policies will be issued by insurers qualified to do business in Minnesota and with a Best’s Rating of A-VIII or better.
18.4 Self-Insurance. Motivate’s obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance, upon evidence of financial capacity reasonably satisfactory to Manager.
18.5 Additional Insured; Notice of Termination. Manager shall be named as an additional insured with respect to the policies described in Sections 18.2.2 and 18.2.3. Each policy described in Sections 18.2.1 through 18.2.5 shall include a provision requiring 30 days’ prior written notice to the Manager of cancellation or termination of such policies.
18.6 Deductibles and Retentions. Motivate will be responsible for payment of any deductible or retention on Motivate’s policies without right of contribution from Manager. Deductible and retention provisions will not contain any restrictions as to how or by whom the deductible or retention is paid.
18.7 Failure to Maintain Insurance. All insurance specified above will remain in force until the expiration or termination of this Agreement. The failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Agreement. If at any time any insurance specified above is not in full force and effect, the
Manager may, at Motivate’s sole cost and expense, acquire such insurance and pay any premiums and related expenses for such insurance; provided, however, that Manager shall notify Motivate before acquiring any such insurance.
18.8 Certificates of Insurance. On the Effective Date and thereafter upon the reasonable request of the Manager, Motivate will deliver to Manager certificates of insurance and endorsements verifying the aforementioned coverages.
ARTICLE XIX INDEMNIFICATION AND LIMITATION OF LIABILITY
19.1 Indemnification by Motivate. Subject to the provisions of Section 19.2, Motivate agrees to indemnify, defend, save and hold harmless Manager and its affiliates, owners, officers, directors and employees (“Manager Indemnitees”) from and against any and all claims, demands, causes of action, or suits brought by third parties (“Claims”), and all losses, liabilities, penalties, fines, forfeitures, costs and expenses arising from or incidental to any Claims (including cost of defense and reasonable legal fees) (collectively, with Claims, “Liabilities”), incurred or suffered by any of the Manager Indemnitees that are resulting from (a) the operation of the Program on or after the Closing Date, (b) negligence, gross negligence or intentional misconduct of any of the Motivate Indemnitees (as defined below), or (c) any breach by Motivate of this Agreement, including any of its representations, warranties or covenants hereunder.
19.2 Indemnification by Manager. Subject to the provisions of Section 19.1, Manager agrees to indemnify, defend, save and hold harmless Motivate and its affiliates, owners, officers, directors and employees (“Motivate Indemnitees”) from and against any and all Liabilities that are incurred or suffered by any of the Motivate Indemnitees that are resulting from (a) operation of the Program on or before the Closing Date, (b) negligence, gross negligence or intentional misconduct of any of the Manager Indemnitees, or (c) any breach by Manager of this Agreement, including any of its representations, warranties or covenants hereunder.
19.3 Exclusions. Notwithstanding the foregoing, neither Party’s indemnification and defense obligations contained in the preceding Sections 19.1 and 19.2 shall apply in respect of Liabilities resulting from, or arising out of the subject matter for which the other Party is the indemnitor.
19.4 Indemnification Procedure. Upon receipt by any 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 Section 19.4 (an “Indemnity Claim”), such Indemnified Party will give prompt notice of such Indemnity Claim to the Indemnifying Party. The Indemnifying Party will assume and prosecute the defense of such Indemnity Claim. The Indemnifying Party may settle any such Indemnity Claim in its discretion so long as such settlement includes an unconditional release of the Indemnified Party.
19.5 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.
ARTICLE XX MISCELLANEOUS
20.1 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, before or 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.
20.2 Governing Law. This Agreement will be governed exclusively by the internal laws of the United States and of the State of New York applicable to contracts made, accepted and performed wholly within said State, without regard to application of principles of conflict of laws. Subject to Article XVII hereof, any claim, suit or action arising under or relating to this Agreement must be brought only in courts located in Minneapolis, Minnesota. The Parties hereby agree that such courts will have exclusive personal and subject matter jurisdiction over any such claim, suit or action.
20.3 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.
20.4 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.
If to Manager: Nice Ride Minnesota, Inc. Attn: Mark Bixby, President 4600 France Avenue South Edina, Minnesota 55410 Email: [email protected]
with a copy to: Nice Ride Minnesota, Inc. Attn: Bill Dossett, Executive Director 2701 36th Avenue South Minneapolis, MN 55419 Email: [email protected]
If to Motivate: Motivate Minnesota, LLC 220 36th Street, Suite 3A Brooklyn, NY 11232 Attn: Jules Flynn, EVP of Operations Email: [email protected]
with a copy to: Motivate Minnesota, LLC 220 36th Street, Suite 3A Brooklyn, NY 11232 Attn: Justine Lee, Vice President and General Counsel Email: [email protected]
20.5 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.
20.6 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.
20.7 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 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.
20.8 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 Manager, nor will Manager or its agents or employees be considered employees, servants, or agents of Motivate. It is expressly understood and agreed that Manager and Motivate shall not have any fiduciary responsibilities by reason of this Agreement or otherwise related to the Program. 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, Manager or any of its employees. Manager 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. Manager will not provide to Motivate any insurance coverage or other benefits, including Workers’ Compensation, normally provided by Manager 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.
20.9 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.
20.10 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 an Event of Force Majeure that makes 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 Manager written notification of such Event of Force Majeure as soon as reasonably practicable after the occurrence of such Event of Force Majeure and taken all commercially reasonable steps to mitigate the impact of such Event of Force Majeure.
20.11 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, upon at least fifteen (15) days’ prior written notice to Manager, assign this Agreement to an Affiliate of Motivate without Manager’s consent.
20.12 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 Manager’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 Manager, (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.
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ATTACHMENT A
Description of Services
1. Description of Services.
Motivate will operate the Program and Pilot according to the description of Services set forth in this Attachment.
2. Compliance with ROW Owner Agreements and Permits
2.1 Motivate will operate the Program and Pilot in compliance with the Amended GFA and the License between the City and Manager as subcontractor to Manager.
2.2 Motivate will operate the Program and Pilot in compliance with ROW Owner Agreements with the University and Parks to which Motivate consents.
2.3 Motivate will comply with all permits for bike share stations and for Dockless Bike Share parking zones that may be issued to Manager or Motivate by ROW Owners.
3. Compliance with Goals of Public Grantors
3.1 Manager warrants that it has obtained approvals from public grantors for the use, transition, and disposition of Grant Funded Equipment set forth in this Program and Pilot Agreement.
3.2 Subject to Section 3.3 of this Attachment A, below, Motivate will use best efforts to design the Pilot and to implement the Program and Pilot to further the following goals of Manager’s public grantors:
(1) To increase bicycle mode share;
(2) To make active transportation efficient and convenient;
(3) To normalize cycling for transportation;
(4) To enhance active transportation to parks; and
(5) To pilot public bicycle sharing as a means to achieve those goals and to share the results of that experiment with researchers and other cities.
3.3 It is also a goal of the parties to demonstrate that Dockless Bicycle Sharing can be operated as a sustainable private business, so nothing in Section 3.2 above shall be construed to require Motivate to design the Pilot or to implement the Program and Pilot in a way that is not commercially reasonable or to require disclosure of proprietary or personally identifiable information.
4. Bicycles.
4.1 Bicycles deployed in the Pilot will meet or exceed relevant CPSC, EN or ISO standards for bicycles.
4.2 Motivate provided to Manager in April 2018 two sample Dockless Bicycles. Bicycles deployed in the Pilot will be of similar or better durability and will be built with components of similar or better quality, unless mutually agreed.
5. Virtual Station Technology.
5.1 Motivate will collaborate with Manager to develop a “Virtual Station Master Plan” as required by the License between the City and Manager. Included in that plan will be approaches to encourage riders to return bicycles to parking zones, using technologies that Motivate is currently developing. If Motivate determines these developing technologies to be commercially and operationally feasible and beneficial in the Pilot, Motivate will deploy them in the Pilot. For the avoidance of doubt, nothing in this paragraph will be construed to obligate Motivate to develop or continue developing any specific technologies.
6. Expansion and Deployment.
6.1 Motivate and Manager will work together to conduct community engagement and outreach as part of the expansion process, which may include business associations and city meetings.
6.2 Motivate will inspect and store all new equipment prior to deployment.
6.3 Motivate will be responsible for deployment of all equipment.
7. Subscriber Information/Relations.
7.1 Age Requirement for Program Subscribers. Subscriptions will only be issued to individuals 18 years of age and older.
7.2 Subscriber Privacy. Motivate will, at all times, protect the privacy rights of all subscribers. Motivate will strictly comply with all applicable federal, state, and local laws, ordinances, and regulations concerning the privacy of all subscriber information obtained by Motivate in the course of providing services under this Agreement.
7.3 Loss Fees. Motivate may charge the subscriber whose account is associated with a lost or stolen bicycle an amount which covers the replacement value of the bicycle, along with shipping fees and expenses and service charges for placing a new bicycle into the operational fleet.
8. Operations
8.1 Continuous Operation and Management. Except as otherwise stated herein, and subject to scheduled downtime, the Program will commence operating on the Closing Date and will remain in operation between April 15 and November 1 each year. In Motivate’s reasonable
discretion, Motivate may operate the Program for any or all of the days between November 1 and April 15.
8.2 Inspection and Maintenance.
(1) Motivate will, at all times, follow and strictly 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. All bicycles identified by customers as needing service shall be repaired or removed from service within 72 hours.
(3) Motivate will clean each Station as necessary.
(4) Motivate will remove conspicuous graffiti within 48 hours after notification.
(5) Motivate will remove conspicuous accumulations of litter from Stations within 48 hours after notification.
(6) Motivate will maintain a quality control checklist and inspection process for bicycles and Stations similar to Manager’s current practices and shall share the checklists with Manager.
8.3 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 will deploy at least one “bike train” for bicycle redistribution.
8.4 Comments and Complaints. Motivate will establish and maintain 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. Motivate will maintain records sufficient to identify recurring comments or complaints and will share such records with Manager.
8.5 Program Website and Mobile Application. Motivate will maintain a Program website and mobile application that will enable customers to view bicycles that are part of the Grant Funded Equipment and bicycles that are deployed to meet Expansion Targets in an integrated manner.
8.6 Staffing. Motivate, at all times, will provide sufficient staff to efficiently and promptly provide the services set forth in this Agreement. On or about the Closing Date, Motivate will offer employment on an at-will basis to all individuals who are employees of Manager immediately before the Effective Date, except Manager’s executive director, at wage and benefit levels similar to those provided by Manager during the year before the Effective Date.
8.7 Minimum Service Levels. Commencing ninety (90) days after the Closing Date, Motivate will maintain the following minimum service levels:
(1) rebalancing bicycles throughout the Program and Pilot area to achieve equitable service across all Communities (as defined below) by ensuring that each day, each Community contains a reasonable minimum share of the then-available fleet of Program and Pilot bicycles, as determined by residential density, employment density, visitor activity level, and equity goals. Motivate will share its basis for determining such reasonable minimum shares with Manager at least annually. “Community” means one of the following eleven geographic subdivisions of the City as further depicted at http://www.ci.minneapolis.mn.us/council/maps/index.htm: Calhoun-Isles, Camden, Central, Longfellow, Near North, Nokomis, Northeast, Phillips, Powderhorn, Southwest, and University;
(a) Manager may suggest changes to the minimum reasonable shares. Motivate will accept suggested changes that Motivate determines are commercially and operationally reasonable.
(b) Motivate will publish a dashboard or other data that will enable the Manager and the public to see, once a day, the actual share of bikes in each Community.
(2) for the Grant Funded Equipment, making reasonable efforts to rebalance bicycles so as to avoid completely full or empty stations at levels similar to Manager’s historic performance;
(3) 85% fleet availability, measured as the portion of the total number of bicycles deployed in the Program (other than bicycles that have been decommissioned, lost, or stolen) that is available for rental or is with the Motivate redistribution team; and
(4) reparking any improperly parked bicycles within 24 hours of receiving notice of such improper parking; and
8.8 Transit Integration. Motivate will commence integrating with the Go-To transit program in 2019 to allow users to initiate a rental with a transit card.
8.9 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 local review and permitting requirements and consistent with Manager’s obligations to its public grantors.
(2) 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 or reconfigured to accommodate such construction or other reasons. At the request of the property owner, Motivate will adjust the placement or configuration of a Station. Motivate may charge the property owner for such adjustment. Motivate will invoice and collect payment from a private property owner prior to any such adjustment. The property owner will notify
Motivate at least 72 hours in advance for any requests regarding Station relocation or reconfiguration.
8.10 Interruption of Service.
(1) 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 Manager at least 24 hours before the interruption of service.
(2) 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 Manager.
ATTACHMENT B
Transition Plan
In order to pursue dramatic expansion of the Program with innovative technologies while fulfilling Manager’s obligations under the Amended Grant Funded Agreement, the Parties have developed this Transition Plan, setting forth a three-part process for the beneficial disposition of the Grant Funded Equipment and providing for continuity of service and rational expansion of the Program.
Continuity of Service for Grant Funded Equipment
Commencing on the Closing Date and throughout the Term, Motivate will continue operating the Grant Funded Equipment as part of the Program in accordance with the terms and conditions of this Agreement and the Operating Agreement until, in Motivate’s reasonable discretion, the Grant Funded Equipment has reached the end of its useful life. As any portion of the Grant Funded Equipment reaches the end of its useful life, Motivate will take ownership of, and decommission, such portion of the Grant Funded Equipment in compliance with the Operating Agreement. The Parties acknowledge that over the course of the Term, as much as all of the Grant Funded Equipment could reach the end of its useful life and be decommissioned. Before Grant Funded Equipment is decommissioned, it will remain property of Manager.
Replacement of Grant Funded Equipment
As Grant Funded Equipment is decommissioned, Motivate will replace each decommissioned bicycle with a new bicycle, up to a total of 1,850 bicycles. Motivate will recycle decommissioned Grant Funded Equipment and will retain any proceeds from such disposition.
In 2018, Motivate will operate substantially all of the Stations that are part of the Grant Funded Equipment. In 2019, Motivate will begin to decommission such Stations.
Disposition of Remaining Equipment
If, as of the expiration or termination of this Agreement, any Grant Funded Equipment has not yet been decommissioned, Manager will be responsible for operating or disposing of such Grant Funded Equipment; provided, however, that Manager will not continue operating the Grant Funded Equipment as part of the Program if doing so would not be financially feasible. If Manager does not continue operating the remaining Grant Funded Equipment after expiration or termination of this Agreement, Manager will dispose of remaining Grant Funded Equipment and contribute any proceeds therefrom to a local Minneapolis-St. Paul bicycle advocacy nonprofit organization or as otherwise directed by the City.
ATTACHMENT C
Schedule of Assets
Vehicles Qty. Description Make/Model Loan (if any) 3 Compact pickup Ford Ranger (1); US Bank Equipment Finance Agreement trucks Toyota Takoma (2) #2079837 dated as of May 25, 2016 1 Heavy duty 1-ton Chevrolet K3500 US Bank Business Quick Loan stake side truck #514412680 dated as of June 3, 2015 1 Full size ½-ton Chevrolet – pickup truck Silverado 1 Cargo van Ford Transit – 1 Articulated Avant 528 US Bank Equipment Finance-Staged loader/forklift Funding Agreement #1949589 dated as of March 9, 2015 2 Heavy duty – – equipment trailers 5 Custom bicycle – – trailers Office Equipment Qty. Description 30 Office Chair 7 Desk 5 2 Drawer File 1 3 Drawer Lateral File 2 White Board 3 Cork Board 3 Cubicle 3 2 Drawer Lateral File 2 Vacuums 1 Paper cutter 1 Small Table 1 Reception Desk 1 4 Drawer Lateral File 9 Small files 1 Round Table 7 Small Chair 2 Microwave
1 Toaster Oven 1 Coffee Maker 1 Workstation 4 Work table 1 5 Drawer Lateral File 10 Side Chair 2 Conference Table 2 Side Table 1 Refrigerator 3 Wood lateral File 1 Bank of Lockers 5 Shelving Unit 3 Folding long table 1 Dorm fridge Operations Equipment Qty. Description - Misc. Hand tools 3 Angle Grinders 6 Drills 2 Circular Saws 4 Buffers/ Sanders 1 Mower 2 Line trimers 1 Power Washer 1 Shop Vac 1 Compressor - Brooms/ Shovels Tools & Spare Parts Qty. Description See attached.
ATTACHMENT D
Equity Plan
Motivate and Manager agree to a three-pronged approach to equity: (1) training and hiring staff from under-represented communities, (2) offering affordable pricing and broad access, and (3) expanding Program coverage over time to underserved parts of the City.
1. Training and Hiring
1.1 After 90 days of employment, part-time employees will receive a minimum of (a) $15 per hour, subject to annual increase in accordance with the following sentence or (b) 150% of Minneapolis minimum wage, whichever is less. Each calendar year during the Term beginning in 2019, the wage described in subsection (a) of the preceding sentence will be subject to CPI Adjustment on the later of February 1 or the first day of the month after the CPI is published. Full benefits including healthcare coverage are provided to regular full-time employees within 90 days of employment.
1.2 Diverse Workforce: Historically underrepresented and economically disadvantaged people, including people of color, indigenous Americans, low income residents, veterans, people who identify as LGBTQ or gender-neutral, disabled individuals, immigrants and refugees, and/or formerly incarcerated people will compose not less than 25% of total employment hours by anyone first hired after the Effective Date. Motivate will endeavor to achieve a diverse workforce across all levels of employment, including management. Motivate will endeavor to achieve a workforce in which people of color are represented at or above the percentage of residents of Minneapolis who are people of color.
1.3 Designating Training Providers to Maximize Recruitment Success: Motivate will work to designate a training provider or providers (such as Minneapolis Works, and other job source programs that are directed at historically underrepresented or underutilized people) that will be used to recruit and hire workforce, entry level and bicycle mechanic jobs to help achieve the targets described in the previous paragraph.
2. Affordable Pricing and Access
2.1 With the goal of replicating successful affordable pricing models that Motivate has implemented in other cities (e.g., through the “Divvy for Everyone” program in Chicago), Motivate will provide discounted annual memberships for income-eligible residents, subject to verification by Motivate, which includes unlimited rides of 60 minutes or less, for $5 per month, subject to CPI Adjustment plus 2%
2.2 Motivate’s bicycle distribution commitments are geographically equitable by requiring Motivate to rebalance bicycles to all areas of the City.
2.3 Motivate will explore dynamic pricing models to achieve equity goals by, for example, seeking sponsorship or other funding to make rides starting or ending in a neighborhood with a high incidence of obesity and diabetes free to the customer.
2.4 Before the Initial Expansion, Motivate will conduct focused outreach communication in at least North Minneapolis and Phillips, two neighborhoods served by Grant Funded Equipment and the Nice Ride Neighborhood program.
2.5 Motivate and Manager will collaborate on seeking and securing funding, through grant and sponsorship opportunities, to help promote and grow the income-eligible discount program;
2.6 When hiring ambassadors to promote the Program, Motivate will meet hiring commitments by hiring from underserved communities. Motivate will employ or contract with a local advocacy organization to employ at least two ambassadors in each of the first three seasons of its operations.
2.7 Motivate will support programming from partner organizations that promotes bicycle share, including by providing free passes that may be used by partners to teach local residents about bike sharing.
2.8 Motivate will provide the same customer experience to all members, including ease of signup, renewal, referral, and any other promotion program.
2.9 Motivate will explore providing a cash-only fare product to provide access to under- and unbanked customers.
2.10 Motivate will make commercially reasonable efforts to integrate with the Go-To transit program in 2019 to allow users to initiate a rental with a transit card.
2.11 Motivate will advocate for bicycle safety programming to increase community awareness of bicycle share and buy-in.
2.12 Motivate will provide multilingual service through its outreach marketing and will make commercially reasonable efforts to introduce multilingual support in the Program’s mobile application.
3. Expanded Coverage. During the Term, Motivate will expand Program coverage to underserved parts of the City.
4. Measurement. Motivate will focus measurement of its equity efforts on (i) rider demographics through in-app surveys where commercially reasonable and (ii) accessibility of bicycles in targeted neighborhoods. Motivate will seek the advice of local researchers and experts, including, for example, Dylan Galos of Wilder Foundation, to improve methods of measuring equity in bicycle share.
5. Reporting. Motivate will provide annual reports on status of Equity Plan goals, focusing on availability of bicycles in targeted neighborhoods, and will work in good faith with Manager to revise and update this plan. Motivate acknowledges that in-app surveys and intercept surveys are preferable to e-mail surveys of annual users. Motivate will seek the advice of local advocates, such as Dylan Galos or another representative of Wilder Foundation, regarding improving methods of measuring equity in bicycle share.
ATTACHMENT E
Nice Ride Marks
Reg. No. Next Renewal Mark Reg. Date Services in Class 39 Deadlines NICE RIDE 3,857,861 Bicycle sharing program Oct. 5, 2020 MINNESOTA Oct. 5, 2010 NR & Bicycle Design 3,857,860 Oct. 5, 2010