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Deco Bike, LLC. Concession AgreementDeco Bike, LLC. City of Miami Beach Concession Agreement for aSelf-Service Bicycle Rental & Sharing Program INDEX SECTION TITLE PAGE 1. TERM ................................................................................................................................ ...5 2. CONCESSION AREA(S) AND CONCESSION SERVICE ZONE .................................... ...6 2.1 Concession Service Zone .................................................................................... ...6 2.2 Concession Area (s) ............................................................................................ ...6 2.2.2 Underutilized Concession Area(s) .......................................................... ...6 2.2.3 High-Risk Concession Area(s) ............................................................... ...7 3. USE(S) .............................................................................................................................. ...7 3.1 Bicycle Rental Services ....................................................................................... ...7 3.3 Rental Kiosks and Bicycle Racks ........................................................................ ...9 3.4 Operational Ceiling for Program .......................................................................... .12 3.5 Hurricane Evacuation Plan .................................................................................. .12 4. CONCESSION FEES ....................................................................................................... .13 4.1 Percentage of Gross Sales (PG) ......................................................................... .13 4.2 Interest for Late Payment .................................................................................... .14 4.3 Sales and Use Tax .............................................................................................. .14 5. MAINTENANCE AND EXAMINATION OF RECORDS .................................................... .14 6. INSPECTION AND AUDIT ............................................................................................... .14 7. TAXES AND ASSESSMENTS ......................................................................................... .16 7.2 Procedure if Ad Valorem Taxes Assessed .......................................................... .16 8. EMPLOYEES AND INDEPENDENT CONTRACTORS ................................................... .16 8.1 Concessionaire's Employees ............................................................................... .16 9. HOURS OF OPERATION ................................................................................................ .16 10. IMPROVEMENT, MAINTENANCE, REPAIR and OPERATION ...................................... .17 10.1 Improvements ...................................................................................................... .17 10.2 Maintenance/Repair ............................................................................................. .18 10.3 Orderly Operation ................................................................................................ .18 10.4 No Dangerous Materials ...................................................................................... .18 10.5 Security ................................................................................................................ .19 10.7 Inspection ............................................................................................................ .20 11. INSURANCE ..................................................................................................................... .20 12. INDEMNITY ...................................................................................................................... .21 12.4 Subrogation ......................................................................................................... .21 12.5 Force Majeure ...................................................................................................... .21 12.6 Labor Dispute ...................................................................................................... .22 12.7 Waiver of Loss from Hazards .............................................................................. .22 13. DEFAULT AND TERMINATION ....................................................................................... .22 13.1 Bankruptcy ........................................................................................................... .22 13.2 Default in Payment ...............................................................................................23 13.3 Non-Monetary Default ...........................................................................................23 13.4 City's Remedies for Concessionaire's Default ......................................................23 13.7 Surrender of Concession Areas/ Removal by Concessionaire of Equipment/Improvements .....................................................................................24 13.9. Substitute Performance ........................................................................................ 25 14. PERFORMANCE BOND OR ALTERNATE SECURITY ................................................... 25 15. ASSIGNMENT ................................................................................................................... 25 16. SPONSORSHIPS .............................................................................................................. 25 16.2 Advertisements ..................................................................................................... 26 17. NO IMPROPER USE ......................................................................................................... 27 18. PRICE SCHEDULES ......................................................................................................... 27 19. NOTICES ........................................................................................................................... 28 20. LAWS ................................................................................................................................ 28 20.1 Compliance ........................................................................................................... 28 20.2 Governing Law ...................................................................................................... 28 20.3 Equal Employment Opportunity ............................................................................ 29 2 SECTION TITLE PAGE 20.4 No Discrimination .................................................................................................. 29 20.4.2 Equal Benefits Requirements .................................................................. 29 21. MISCELLANEOUS ............................................................................................................ 29 21.1 No Partnership ...................................................................................................... 29 21.2 Modifications ......................................................................................................... 30 21.3 Complete Agreement ............................................................................................ 30 21.4 Headings ............................................................................................................... 30 21.5 Binding Effect ........................................................................................................ 30 21.6 Clauses ................................................................................................................. 30 21.7 Severability ........................................................................................................... 30 21.8 Right of Entry ........................................................................................................ 30 21.9 Not a Lease .......................................................................................................... 30 21.10 Signage ................................................................................................................. 31 21.11 Procedure for Approvals and/or Consents ........................................................... 31 21.13 No Waiver ............................................................................................................. 31 21.14 No Third Party Beneficiary .................................................................................... 32 21.15 Proposal Documents ............................................................................................ 32 22. LIMITATION OF LIABILITY ............................................................................................... 32 23. VENUE .............................................................................................................................. 33 24. CITY'S CONTRIBUTION TO PROGRAM ......................................................................... 33 EXHIBITS Exhibit 2.2 (a) Concession Area Site Plan ............................................................ 35 Exhibit 2.2 (b) Concession Area Site List ............................................................ 38 Exhibit 3.1 Program Equipment: Bicycle Image and Specs ................................. 42 Exhibit 3.1.1 Program Equipment: Kiosk Station Image ....................................... 44 Exhibit 3.1.2 Program Equipment: Typical Site Plan and Elevations .................... 46 Exhibit 3.2.1 Price Schedule ................................................................................ 47 Exhibit 3.4 Hurricane Plan Documents ................................................................ 48 Exhibit 16.2 Bicycle Basket Sponsorship Format ................................................ 50 3 c CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND DECO BIKE, LLC. FOR THE IMPLEMENTATION, MANAGEMENT AND OPERATION OF ASELF-SERVICE BICYCLE SHARING PROGRAM PURSUANT TO REQUEST FOR PROPOSALS NO.44-07/08. THIS AGREEMENT made on , 2009 (Effective Date), between the CITY OF MIAMI BEACH, a munici I co oration of the State of Florida, having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter called "City"), and DECO BIKE, LLC., a Florida corporation, with offices at 3301 NE 1St Avenue LPH-6, Miami, Florida 33137 (hereinafter called "Concessionaire"). WITNESSETH WHEREAS, self-service bicycle sharing programs are revolutionizing the way residents and tourists commute within cities in Europe and North America, and aself-service bicycle sharing program with public access has been determined by the City to be a desirable and valuable mode of alternative public transportation for the community; and WHEREAS, aself-service bicycle sharing program serves as a great health benefit to residents and tourists, alleviates parking and vehicular traffic congestion, and reduces vehicle emissions and reliance on fossil fuels, serving as a vital and integral part of the community; and WHEREAS, aself-service bicycle sharing program will generate substantial revenues for the City and create a variety of new jobs for locals; and WHEREAS, on September 10, 2008, the City Commission authorized the issuance of a Request for Proposals No. 44-07/08 to solicit proposals for the City-wide implementation, management and operation of aself-service bicycle rental program available to the public (the RFP); and WHEREAS, the Mayor and City Commission, at its January 28, 2009, meeting, passed and adopted Resolution No. 2009-26993, which accepted the recommendation of the City Manager, pursuant to the RFP; and authorized the Administration to enter into negotiations with Concessionaire as the top-ranked responsive proposer; and WHEREAS, accordingly, the City and Concessionaire have negotiated the following Agreement for the implementation, management and operation of an exclusive City-wide self-service bicycle sharing program (the "program"). NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto as follows: 4 The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the right to operate the following described concession within the Concession Service Zone and upon the Concession Areas (both as defined herein) in conformance with the purposes and for the period stated herein and subject to all the terms and conditions herein contained and fairly implied by the terms hereinafter set forth. SECTION 1. TERM. 1.1 The initial term of this Agreement shall be for five (5) years, commencing on the date of Operational Rollout. The "Operational Rollout" date shall be defined as the earlier of: (i.) the first date that access to bicycles in the program is available to the public; or (ii.) seven (7) months from the Effective Date (as set forth on p. 4 hereof). Concessionaire shall provide the City Manager or his designee with written notice of the Operational Rollout date no later than thirty (30) days prior to the commencement of said date. 1.1.1 The collection of security deposits (if any) by Concessionaire prior to the Operational Rollout date, as a part of the member subscription registration process for the program or any free public demonstration periods, shall not be used in determining the Operational Rollout date. 1.1.2 The Operational Rollout date may be extended by the City Manager, in writing, at his sole discretion, upon written request from Concessionaire, which notice shall state the reason for the request and the anticipated period of time requested. 1.2 At the City's sole discretion, and provided further that the Concessionaire is not in default, commencing upon written notice from Concessionaire to the City, which notice shall be given in the fifth contract year of the initial term (and then no later than ninety (90) days prior to expiration of said term), the City may extend the term of this Agreement, for one (1) additional five (5) year renewal term. As a condition to such renewal, the City may require Concessionaire to purchase new Equipment (as defined herein), if the City Manager deems necessary. Concessionaire shall deliver to City, no later than ninety (90) days prior to the expiration of the initial term: (i.) a schedule of any Equipment which was replaced during the initial term; and (ii.) an itemized list of proposed replacement Equipment. The schedule and list shall be delivered to, reviewed, and approved by the City Manager prior to, and as a condition of, the City's consideration and approval of the renewal term. 1.3 For purposes of this Agreement, a "Contract Year" shall be defined as that certain 365 day period commencing on the date of Operational Rollout. 5 SECTION 2. CONCESSION AREA(S) AND CONCESSION SERVICE ZONE. The City hereby grants to the Concessionaire the right, during the Term of this Agreement, to operate the concession, as described herein, generally, in the following Concession Service Zone and, specifically, upon the following Concession Areas (hereinafter such areas shall be referred to individually as a Concession Area, or collectively as the Concession Areas): 2.1 Concession Service Zone. The Concession Service Zone shall be defined as the geographical scope of the program, which is deemed to be City-wide, and shall include all the Concession Areas (as defined below and in Exhibit 2.2) within the city limits of Miami Beach. 2.2 Concession Area (s). The Concession Areas are the actual physical site locations forthe program rental kiosks, as delineated on the Site Plan and Site List, which plan/lists shall be approved by the City Manager or his designee, in writing, and attached and incorporated as Exhibit 2.2 to this Agreement, no later than thirty (30) days prior to the Operational Rollout date. In selecting the Concession Areas forthis Agreement, the parties shall give consideration to minimizing the impact upon the available number of public parking areas/spaces in the City. 2.2.1 In the event that a Concession Area(s) indicated on the approved Site Plan and Site List is subsequently found to be unsuitable for a kiosk location, Concessionaire and the City shall use reasonable efforts in mutually cooperating to find a replacement Concession Area, within a distance equal to one (1) city block, within thirty (30) days, and the approved Site Plan and Site List (in Exhibit 2.2) shall be amended accordingly. The same procedure shall be followed forthe addition of new Concession Areas. 2.2.2 Underutilized Concession Area (s). The City Manager may deem a Concession Area an "Underutilized" Concession Area upon written request by Concessionaire to the City Manager and upon Concessionaire presenting usage data for that Concession Area which indicates that the quantity of daily rentals or member uses originating from or returning to that Concession Area falls 50% below the Average Program Usage (as defined below); or as may otherwise be reasonably demonstrated by Concessionaire to the satisfaction of the City Manager. The "Average Program Usage" ("APU") shall be defined as the average number of bicycle trips/uses per day per kiosk operating in the program during a given calendar month. In the event the City Manager determines that a Concession Area is an Underutilized Concession Area, the City shall use reasonable efforts to cooperate with Concessionaire to transfer to or 6 create a new Concession Area, and shall amend the Site Plan and Site List (Exhibit 2.2) accordingly. 2.2.3 Hiah-Risk Concession Area (s). The City Manager may deem a Concession Area a "High-Risk" Concession Area, upon written request by Concessionaire to the City Manager, when its incidence of theft and/or vandalism is 50% higher than the Average Theft-Vandalism Rate; or as may otherwise be reasonably demonstrated by Concessionaire to the City Manager. The "Average Theft-Vandalism Rate" ("ATVR") shall be defined as the average number of acts of theft or vandalism per kiosk operating in the program within a given calendar month. The Concessionaire shall present usage data for the Concession Area in question which indicates that the rate of theft and/or vandalism is 50% higher than the Average Theft/Vandalism. In the event that the City Manager determines that a Concession Area is a High-Risk Concession Area, the City shall use reasonable efforts to cooperate with Concessionaire to transfer to or create a new Concession Area and shall amend the Site Plan and Site List (Exhibit 2.2) accordingly. SECTION 3. USE(S). The Concessionaire is hereby authorized to conduct the following kind(s) of program related businesses and provide the following kind(s) of program related services within the Concession Area(s), all at its sole cost and expense: 3.1 Bicvcle Rental Services Concessionaire shall provide bicycle rentals at automated, self-service kiosks in the Concession Areas, on a short-term and subscription basis. The City herein approves the: (i.) types of bicycles, asset forth in Exhibit 3.1, attached hereto; and (ii.) prices for rental and/or subscriptions for same, asset forth in Exhibit 3.2.1, attached hereto. Any amendments to Exhibits 3.1 and/or 3.2.1, whether as to type of bicycles to be rented, or as to changes in prices, must be approved in writing by the City Manager or his designee prior to such changes being implemented within the Concession Area(s), and the respective exhibit(s) will be amended accordingly. The Concessionaire agrees to maintain an adequate supply of bicycles necessary to accommodate demand. Bicycle rental and subscription services shall be offered daily to patrons at all times during the Concession Area(s) hours of operation, as set forth in Section 9 hereof. Concessionaire and/or the City may desire to add new technologies or equipment which may be developed in the future and are not contemplated under the Agreement. In the event Concessionaire determines new equipment or technology should be used in the program, Concessionaire shall make a request, in writing, to the City Manager which outlines the proposed new equipment or 7 technologies and the advantages resulting from their implementation. The City Manager shall use reasonable efforts to approve or deny such request within thirty (30) days. In the event such a request is denied, the City Manager shall provide a detailed explanation stating why such changes to the program equipment or technology should not be made. Concessionaire shall integrate any approved new equipment and/or technology at Concessionaire's sole cost and responsibility and at no cost to the City. 3.1.1 Intentionally Omitted. 3.1.2 All respective equipment within an individual Concession Area including, without limitation, the rental kiosks, bicycle racks, and bicycles (all of which maybe hereinafter referred to collectively as the Equipment) shall be placed substantially in accordance with the approved Site Plan and Site List in Exhibit 2.2. Concessionaire shall not materially deviate from the approved Site Plan and Site List without the prior written consent of the City Manager or his designee. 3.1.3 It is the City's intent, and Concessionaire hereby agrees and acknowledges, to develop and promote a world class bicycle rental and sharing program that is comparable to those found at other world class communities similar to the City of Miami Beach. The condition and quality of Concessionaire's Equipment shall at all times adhere to the highest responsible ongoing maintenance standards, in a manner that is consistent with the aforestated standards. Concessionaire shall maintain its bicycles in good working order and repair and useable condition. At a minimum, this shall require the following: chain in good working order and free of rust; all moving components tubed; bicycle frame and fork structurally sound and in a clean condition; lights and reflectors functioning as designed; pedals in functional order; brakes functioning properly; handlebars properly attached and functional; tires inflated and free of excessive wear; wheels/spokes functional and free of excessive wear; seat in proper working order; all bolts and nuts properly secured; and all RFP- required accessories present and functioning as designed. Concessionaire shall maintain the rental kiosks and bicycle racks in the Concession Areas in a good, clean working order and repair, including without limitation, keeping them free of graffiti. In the event that a kiosk or rack is damaged for any reason, Concessionaire shall, at a minimum, commence repairs within forty- eight (48) hours, and, in any event, complete repairs or (if irreparable) replace the damaged kiosk or rack so that same is fully operational, no later than ten (10) days from the date Concessionaire first becomes aware (or should be aware) of the damage. s In the event that a bicycle is damaged for any reason, Concessionaire shall, at a minimum, commence repairs within forty-eight (48) hours and, in any event, complete repairs or (if irreparable) replace the damaged bicycle(s) within ten (10) days from the first date of removal (at which time the fully repaired bicycle or a replacement bicycle shall be put back into service). Following the Effective Date, the City may, at its option, request that Concessionaire provide it with a full inventory of all program Equipment, including types and numbers (per item); dates of lease and/or purchase; and initial condition (established as of the date of inventory). Thereafter, City and Concessionaire may jointly prepare a plan and schedule for the ongoing replacement and/or updating of Equipment throughout the Term of this Agreement. Many small/light maintenance items may be done on-site by Concessionaire and/or its subcontractors to eliminate or minimize unit downtime, while moderate to heavy maintenance may require Equipment to be removed from circulation and serviced at Concessionaire's repair center. The quality of Equipment offered in the program will be first-rate and comparable to similar bike sharing programs in world-class communities (similar to the City of Miami Beach). 3.2 Intentionally Omitted. 3.3 Rental Kiosks and Bicycle Racks Concessionaire shall erect, install, operate, and maintain, at its sole cost and expense, and at no cost to the City, all program rental kiosks and bicycle racks within the Concession Areas contemplated in Exhibit 2.2. Concessionaire shall not erect, install, operate, and maintain additional kiosks and bicycle racks (unless Concessionaire is undertaking the repair or replacement of an existing kiosk or bicycle rack in an approved Concession Area), nor identify additional or alternate locations for same (other than as identified in Exhibit 2.2), without the prior written approval of the City Manager or his designee. Concessionaire shall provide, at its sole cost and expense, any and all design services including, but not limited to, architectural and engineering services, as reasonably required for the design of the kiosks and bicycle racks. This shall include, without limitation, the following (as may be required by the City): preparation of schematic design documents consisting of drawings, site plans, elevations, samples as required to show the scale and relationship of the components and the design concept as a whole; and, based upon the schematic design documents, as approved by the City, 9 design development documents which may consist of, but not be limited to, drawings, outline specifications and other documents necessary to fix and describe the size and character of the kiosks and bicycle racks in terms of architectural, structural (if any), and electrical (if any) systems, construction finish materials, and such other elements as the City may deem reasonably necessary and appropriate. With regard to the design of the kiosks and bicycle racks, the Concessionaire may be required to participate in a number of public presentations, workshops, community meetings, etc., as required for review and approval from regulatory bodies, and as may otherwise be deemed necessary by the City Manager, in his reasonable discretion, for community and public involvement. This shall include, without limitation, meeting with the staff of the City's Planning Department to determine whether the kiosks and bicycle racks will require Design Review and Historic Preservation Board approvals. If so required, Concessionaire shall be responsible for securing all final, non- appealable approvals from any and all such regulatory boards, at Concessionaire's sole cost and expense; provided, however, that the City (as the owner of the land for the Concession Areas) shall reasonably cooperate with Concessionaire in assisting with the timely submittal of any owner's affidavits (and/or such other documents that maybe required by the City, as owner of the land). The Concessionaire herein warrants and represents to the City that any architects utilized by Concessionaire shall be duly licensed and admitted to practice architecture in the State of Florida pursuant to Chapter 481, Florida Statutes, and additionally possess the requisite occupational licenses from the City and the County. Any and all engineers required herein shall also be duly licensed and certified by the State of Florida to engage in the practice of engineering in Florida. The Concessionaire shall, at its sole cost and expense, fabricate, construct, and install (or cause to be fabricated, constructed, and installed) the kiosks and bicycle racks, based on the approved design (and subject to the conditions, if any, or any regulatory board orders). Concessionaire shall be responsible for preparation of any and all plans and specifications for same, and shall be responsible for obtaining all required governmental approvals and permits prior to fabrication/construction/installation. In the event any notice or claim of lien shall be asserted against the interest of the City on account of or arising from any work done by or for Concessionaire, or any person claiming by, through or under Concessionaire, or for improvements or work, the cost of which is the responsibility of Concessionaire, Concessionaire agrees to have such notice or claim of lien cancelled and discharged within fifteen (15) days after notice to Concessionaire by City. In the event Concessionaire fails to do so, City may terminate this Agreement for cause without liability to City. City shall not be liable for any claims, losses or damages suffered by third 10 parties arising from Concessionaire's or its officers, agents, employees or contractors; fabrication, construction, and installation of the kiosks and bicycle racks, unless caused by City's gross negligence orwillful misconduct. In addition to the preceding sentence, Concessionaire shall maintain, or require that its contractor(s) maintain, worker's compensation insurance in at least the minimum amounts required by Florida law, and shall provide to City a certificate evidencing such coverage. 3.3.1 Project Schedule /Project Implementation Launch Concessionaire shall implement the program in two (2) phases: Phase I: Shall include the South Beach District and portions of the Middle Beach District, and specifically including the Concession Areas delineated in Exhibit 3.3.1, attached hereto. The Operational Ceiling (as hereinafter defined) shall be 500 bicycles for Phase I. Phase II: Shall include the remainder of the Middle Beach District and the North Beach District, and specifically including the following Concession Areas delineated in Exhibit 3.3.1, attached hereto. The Operational Ceiling shall be 400 bicycles for Phase II. Once implemented, Phase I and Phase II shall have a combined program Operational Ceiling of 900 bicycles on a Citywide basis. Concessionaire shall first commence the program with the setup and implementation of Phase I. Phase I shall be installed and implemented no later than the Operational Rollout date. Upon Concessionaire notifying the City Manager, in writing, that Phase I is installed, functioning properly, and operating as designed, and acceptance of the same, in writing, by the City Manager or his designee shall provide written notice to Concessionaire that it can proceed with the setup and implementation of Phase II. The procedure for implementation, set up, and City acceptance of Phase II shall be the same as for Phase I. Phase II will be installed and implemented no later than three (3) months from the Operational Rollout date. For purposes of the completion dates above, neither Phase I nor Phase II shall be deemed "installed and implemented" unless it has been accepted by the City Manager, in writing, on or prior to such date. 3.3.1.1 Project Schedule Within thirty (30) days from the Commencement Date, 11 Concessionaire and City shall mutually agree upon a detailed schedule for the fabrication, construction, and installation of the kiosks and bicycle racks, specifying the design and permitting phases; fabrication time; commencement and completion of construction; commencement and completion of installation; and implementation and set-up date (up to the Operational Rollout date); and including, without limitation, specific milestones; timelines, etc. Said schedule, when completed, shall be attached and incorporated as Exhibit 3.3.1.1 to this Agreement (the Project Schedule). The Project Schedule, or specific dates thereon, may be extended bythe City Manager, in writing, at his sole discretion, upon written request from the Concessionaire, which notice shall state the reason for the request and the anticipated period of time requested. 3.3.1.2 Intentionally Omitted. 3.4 Operational Ceiling for Program 3.4.1 "Operational Ceiling" shall be defined as the maximum number of bicycles permitted to be operating and available to the public at any time. 3.4.2 The Operational Ceiling shall be 500 bicycles for Phase I, and 400 bicycles for Phase II, for a total of 900 bicycles combined upon the implementation of both phases City-wide. 3.4.3 Intentionally Omitted. 3.4.4 Intentionally Omitted. 3.4.5 The City Manager or his designee may authorize an increase in the Operational Ceiling on a temporary basis for special events or conventions, specifying the number of additional bicycles permitted to be in operation and the dates for which the increase applies to. Such increases shall be authorized in writing by the City Manager or his designee prior to allowing any additional bicycles. 3.4.7 Intentionally Omitted. 3.5 Hurricane Evacuation Plan. Concessionaire agrees that any and all Equipment not permanently affixed, must be removed within twelve (12) hours from the issuance of a Hurricane Warning by the Miami-Dade County Office of Emergency Management, and stored at a private, off-site storage facility. Ptiorto the Commencement Date, Concessionaire shall provide the City Manager or his designee with a hurricane preparedness/evacuation plan, which shall include the location and 12 proof of ownership and/or control by Concessionaire (either through a deed, lease or other document satisfactory to the City Manager or his designee) of the aforestated off-site storage facility; both of which shall be referenced in Exhibit 3.4, attached hereto. Concessionaire shall begin to restock the fleet into the Concession Areas only upon receiving verbal or written notice to do so from the City Manager or his designee, and said restocking shall be completed within four (4) business days. 3.6 Intentionally Omitted. SECTION 4. CONCESSION FEES. 4.1 Percentage of Gross Sales (PGZ Commencing with the Operational Rollout date, an amount equal to 12% percent of gross sales (PG), based on Concessionaire's gross sales receipts up to $2,999,999.99, shall become due and payable by Concessionaire to the City within fifteen (15) days following the end of each calendar month (during each contract year throughout the Term). Commencing with the Operational Rollout date, an amount equal to 15% PG, based on Concessionaire's gross sales receipts surpassing $3,000,000, shall become due and payable by Concessionaire to the City within fifteen (15) days following the end of each calendar month (during each contract year throughout the Term). Commencing with the first contract year following the Operational Rollout date, an amount equal to 25% PG of Concessionaire's gross sales receipts derived solely from Concessionaire's Bicycle Basket Sponsorship Program, shall become due and payable by Concessionaire to the City fifteen (15) days following the end of each calendar month, (during each contract throughout the Term). Concessionaire shall be exempt from sharing revenues on the first $1,000,000 in gross sales receipts generated during the first contract year following the Operational Rollout date, which period of time shall serve as a "grace period." Concessionaire shall commence revenue sharing payments to the City upon collecting gross sales receipts surpassing $1,000,000 following the Operational Rollout date. The term "gross sales receipts" is understood to mean "all income retained or accrued as a result of sales activity, derived by the Concessionaire under the privileges granted by this Agreement, including without limitation, Concessionaire's short-term bicycle rentals, bicycle subscription program, and membership sales, excluding amounts of any Federal, State, or City sales tax, or other tax, governmental imposition, assessment, charge or expense of any kind, collected by the Concessionaire from customers and required by law to be remitted to the taxing or other governmental authority." Any sales which result in credit card chargebacks where the customer's credit card company refuses or denies payment on transactions shall not be 13 calculated as a part of any revenues subject to revenue sharing. 4.2 Interest for Late Payment. Any payment which Concessionaire is required to make to City which is not paid on or before the respective date provided for in this Agreement shall be subject to interest at the rate of twelve (12%) percent per annum, or the maximum interest allowable pursuant to Florida law, whichever is greater, from the due date of payment until such time as payment is actually received by the City. 4.3 Sales and Use Tax. Any required Florida State Sales and Use Tax shall be paid by Concessionaire directly or added to payments and forwarded to the City as part of said payments. It is the City's intent that it is to receive all payments due from Concessionaire as net of such Florida State Sales and Use Tax. 4.4 Intentionally Omitted. SECTION 5. MAINTENANCE AD EXAMINATION OF RECORDS Concessionaire shall maintain current, accurate, and complete financial records (on an accrual basis) related to its operations herein. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit by the City Manager or his designee, upon reasonable prior notice, whether verbal or written, and during normal business hours. Such records and accounts shall include, at a minimum, a breakdown of gross receipts, expenses, and profit and loss statements. In the event Concessionaire accepts cash as a form of payment, it shall maintain accurate receipt-printing cash registers or the like which will record and show the payment for every sale made or service provided in the Concession Areas; and such other records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. A monthly report of gross receipts must be submitted to the City, through the Finance Department's Revenue Supervisor, to be received no later than thirty (30) days after the close of each month (during each contract year throughout the Term). SECTION 6. INSPECTION AND AUDIT. Concessionaire shall maintain its financial records pertaining to its operations herein for a period of three (3) years after the expiration or other termination of this Agreement, and such records shall be open and available to the City Manager or his designee, as deemed necessary by them. Concessionaire shall maintain all such records at its principal office, currently located at 3301 NE 1St Ave. LPH-6, Miami, Florida, 33137, or, if moved to another location, all such records shall be relocated, at Concessionaire's expense, to a location in Miami Beach, within ten (10) days' notice (written or verbal) from the City. The City Manager or his designee shall be entitled to audit Concessionaire's records 14 pertaining to its operations, as often as he deems reasonably necessary throughout the Term of this Agreement, and three (3) times within the three (3) year period following termination of the Agreement (regardless of whether such termination results from the natural expiration of the Term or for any other reason). The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five (5%) percent or more in Concessionaire's statement of gross receipts for any year or years audited, in which case Concessionaire shall pay to the City, within thirty (30) days of the audit being deemed final by the City, the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest. These audits are in addition to periodic audits by the City of Resort Tax collections and payments, which are performed separately. Nothing contained within this Section shall preclude the City's audit rights for Resort Tax collection purposes. Concessionaire shall submit at the end of each contract year (throughout the Term), an annual statement of gross receipts, in a form consistent with generally accepted accounting principles. Additionally, such statement shall be accompanied by a report from an independent CPA firm. It is Concessionaire's intent to stay informed of comments and suggestions by the City regarding Concessionaire's performance underthe Agreement. Within thirty (30) days after the end of each contract year, Concessionaire shall meet with the City Manager or his designee to review Concessionaire's performance under the Agreement for the previous contract year. At the meeting, Concessionaire and City may discuss quality, operational, maintenance and any other issues regarding Concessionaire's performance under the Agreement. SECTION 7. TAXES, ASSESSMENTS. 7.1 Concessionaire agrees and shall pay before delinquency all taxes (including but not limited to Resort Taxes) and assessments of any kind levied or assessed upon a Concession Area or the Concession Areas, and/or on Concessionaire by reason of this Agreement, or by reason of Concessionaire's business and/or operations within a Concession Area or Areas. Concessionaire will have the right, at its own expense, to contest the amount or validity, in whole or in part, of any tax by appropriate proceedings diligently conducted in good faith. Concessionaire may refrain from paying a tax to the extent it is contesting the imposition of same in a manner that is in accordance with law. However, if, as a result of such contest, additional delinquency charges become due, Concessionaire shall be responsible for such delinquency charges, in addition to payment of the contested tax, if so ordered. Concessionaire shall also be solely responsible (at its sole cost and expense) for obtaining and maintaining current any applicable licenses or permits, as required for the operations contemplated in this Agreement including, without limitation, any occupational licenses required bylawforthe proposed uses contemplated in Section 3 and for each Concession Area (if required). 15 7.2 Procedure If Ad Valorem Taxes Assessed. If ad valorem taxes are assessed against a Concession Area or the Concession Areas (or any portion thereof) by reason of Concessionaire's business and/or operations thereon, Concessionaire shall be solely responsible for prompt and timely payment of same. SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. 8.1 Concessionaire's Employees. 8.1.1 Concessionaire shall select, train and employ such number of employees as is necessary or appropriate for Concessionaire to satisfy its responsibilities hereunder. Concessionaire shall be the sole authority to hire, terminate and discipline any and all personnel employed by Concessionaire. 8.1.2 Concessionaire shall designate a competent full-time employee to oversee the day-to-day operations, and who shall act as the contract administrator for the program and serve as Concessionaire's primary point-person with the City. This individual shall have the requisite amount of experience in operating, managing, and maintaining the program and operations contemplated herein. The employee shall be accessible to the City Manager or his designee at all reasonable times during normal business hours to discuss the management, operation and maintenance of the program, and within a reasonable time frame during non-business hours in the event of emergency. Consistent failure by the employee to be accessible shall be reported to Concessionaire's principal(s), and if not rectified, shall be grounds for replacement of the employee. 8.2 Concessionaire's employees and/or contractors shall wear identification badges and uniforms approved by the City Manager or his designee, during all hours of operation when such employee or contractor is acting within the scope of such employment or such contractor relationship. All employees and/or contractors shall observe all the graces of personal grooming. The Concessionaire shall hire people to work in its operation who are neat, clean, well groomed, and who shall comport themselves in a professional and courteous manner. The Concessionaire and any persons hired or otherwise retained by Concessionaire, shall never have been convicted of a felony. 8.3 Concessionaire shall make good faith efforts to hire employees and/or contractors for the program from among unemployed workers in the City of Miami Beach workforce. SECTION 9. HOURS OF OPERATION. All Concession Areas and operations thereon shall be open every day of the year, weather or events of force majeure permitting, and shall be open to the public 24 hours per day, 365 days per year. 16 SECTION 10. IMPROVEMENTS MAINTENANCE REPAIR and OPERATION The Concessionaire accepts the use of any and all Concession Areas provided in this Agreement "AS IS," "WHERE IS," and "WITH ALL FAULTS," existing of at the Commencement Date. Concessionaire assumes sole responsibility and expense for maintenance of the Concession Areas and all Equipment thereon. 10.1 Improvements. 10.1.1 In addition to the specific procedures set forth in Section 3.3 for the design, fabrication, construction, and installation of the kiosks and bicycle racks, Concessionaire shall also be solely responsible (including cost) and shall pay for the design, fabrication, construction, and installation of any and all other improvements to a Concession Area or Areas. Any plans for such improvements shall be submitted to the City Manager or his designee for the City's written approval. All improvements (including any made pursuant to Section 3.3) intended to be permanent and fixed shall remain the property of the City upon termination and/or expiration of this Agreement. Upon termination and/or expiration of this Agreement, all personal property and non-permanent trade fixtures may be removed from the Concession Areas by Concessionaire. Concessionaire will permit no liens to attach to the Concession Areas arising from, connected with, or related to the design, fabrication, construction, and installation of any improvements. Moreover, any permitted construction shall be accomplished through the use of licensed, reputable contractors who are acceptable to the City. Any and all approvals, permits, and or licenses required for the design, construction, and/or installation of improvements shall be the sole cost and responsibility of Concessionaire. 10.1.2 Upon termination and/or expiration of this Agreement any and all improvements erected or installed in the Concession Areas (not intended to be permanent or fixed, but subject to the City's election in immediately following sentence) shall be removed by Concessionaire, at its sole cost and expense, in accordance with Subsection 13.7 hereof. Additionally, Concessionaire may also be required to remove any permanent or fixed improvements at the City Manager's sole discretion, upon written request from the City Manager or his designee. Any such improvements shall be promptly removed by Concessionaire, at its sole cost and expense, and Concessionaire 17 shall restore the Concession Area or Areas to its/their original condition prior to the improvements being made. 10.2 Maintenance/Repair. The Concessionaire shall maintain, at its sole cost and expense, the Concession Areas and any Equipment thereon (as required to operate the program). 10.2.1 Concessionaire shall be solely responsible for the day to day operation, maintenance and repair of all Concession Areas. Concessionaire shall maintain the Concession Areas and any Equipment thereon in good working order and condition. Concessionaire shall keep all Equipment free of graffiti. 10.2.2 All damage of any kind to a Concession Area and any Equipment thereon shall be the sole obligation of Concessionaire, and shall be repaired, restored or replaced promptly by Concessionaire, at its sole cost and expense, to the reasonable satisfaction of the City Manager or his designee. In the event any Equipment is lost, stolen, or damaged, it shall be promptly replaced or repaired by Concessionaire no later than ten (10) days from the date of loss, theft, or damage. 10.2.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to or better than the original work (or Equipment) and shall be done in good and workmanlike manner. 10.2.4 If Concessionaire fails to make such repairs, restorations and/or replacements to a Concession Area and/or to any particular Equipment thereon, the same may be made by the City, at the City's sole option and discretion, but not its obligation. Concessionaire shall be responsible for any costs associated therewith, and shall reimburse the City within ten (10) days after rendition of a bill or statement. 10.2.5 It shall be Concessionaire's sole obligation to insure that any renovations, repairs and/or improvements made by Concessionaire to the Concession Areas comply with all applicable building codes and life safety codes of governmental authorities having jurisdiction. 10.3 Orderly Operation. The Concessionaire shall have a neat and orderly operation at all times and shall be solely responsible for the necessary housekeeping services to properly maintain the Concession Areas and any Equipment thereon. The Concessionaire shall make available all Equipment within a Concession Area for examination by the City Manager or his authorized representative, upon reasonable verbal and/or written notice from the City. 10.3.1 Concessionaire agrees, also at its sole cost and expense to pay for all 18 garbage disposal generated by its operations. 10.4 No Dangerous Materials. The Concessionaire agrees not to use or permit the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida, on or within any of the Concession Areas, or on any City property and/or right of way. Concessionaire shall indemnify and hold City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by Concessionaire of any "hazardous substance" or "petroleum products" on, under, in or upon the Concession Areas as those terms are defined by applicable Federal and State Statute, or any environmental rules and environmental regulations promulgated thereunder; provided, however, Concessionaire shall have no liability in the event of the willful misconduct or gross negligence of the City, its agents, servants or employees. The provisions of this Subsection 10.5 shall survive the termination or earlier expiration of this Agreement. 10.5 Security. The Concessionaire shall be responsible, at its sole option, to employ or provide reasonable security measures, as it may deem necessary to protect the Concession Area and any Equipment thereon. Under no circumstances shall the City be responsible for any stolen or damaged Equipment, nor shall City be responsible for any stolen or damaged personal property of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or other third parties. Notwithstanding the preceding paragraph, Concessionaire shall not be obligated to have a duty to provide security services (whether manned or automated) to patrons using the program, as the program is contemplated as an unattended self-service and automated system. Concessionaire shall not employ any recorded video surveillance without the approval of the City Manager or his designee. City and Concessionaire understand that bicycle theft has been identified as a problem in other bicycle sharing programs. One of the potential causes for theft may be that the locking mechanism may leave inexperienced users of these types of bike sharing programs unsure of whether their bicycle is properly locked. Accordingly, in order to deter theft, Concessionaire shall prominently disclose on each kiosk, invisible, plain, easy to read/understand language and/or symbols, the proper procedure(s) for safely docking and locking a bike into the bike docking station. Similarly, Concessionaire shall utilize a locking system that clearly indicates to users when a bicycle has been fully and properly locked. It is highly recommended that 19 Concessionaire utilize a mechanism that is fully incorporated into the bicycle design, so that it should be impossible to remove the lock without breaking the bicycle. Concessionaire shall also place a clearly visible, legible disclaimer on kiosks, and on patron/customer receipts, advising users that program bikes do not come equipped with individual locks and that neither City nor Concessionaire shall be liable or otherwise responsible to users if the bicycle is stolen while in use (including bicycles that are not properly locked at the conclusion of use). 10.6 Intentionally Omitted. 10.7 Inspection. The Concessionaire agrees that the any Concession Area (including, without limitation, any Equipment thereon) may be inspected at any time by the City Manager or his designee, or by any other municipal, County, State officer, or officers of any other agency(ies) having responsibility and/or jurisdiction for inspections of such operations. The Concessionaire herebywaives all claims against the City for compensation for loss or damage sustained by reason of any interference with the concession operation as a result of inspection by any public agency(ies) or officials, (including, without limitation, by reason of any such public agency or official in enforcing any laws, ordinances, or regulations as a result thereof). Any such interference shall not relieve the Concessionaire from any obligation hereunder. SECTION 11. INSURANCE. Concessionaire shall maintain, at its sole cost and expense, the following types of insurance coverage at all times throughout the Term of this Agreement: a. Comprehensive General Liability in the minimum amount of One Million ($1,000,000.00) Dollars per occurrence for bodily injury and property damage. This policy must also contain coverage for premises operations, products and contractual liability. b. Workers Compensation Insurance shall be required in accordance with the laws of the State of Florida. c. Automobile Insurance shall be provided covering all owned, leased, and hired vehicles and non-ownership liability for not less than the following limits: Bodily Injury $1,000,000 per person Bodily Injury $1,000,000 per accident Property Damage $1,000,000 per accident The policies of insurance referred to above shall not be subject to cancellation or changing coverage except upon at least thirty (30) days prior written notice to the City, and then only subject to the prior written approval of the City Manager or his 20 designee. Prior to the Commencement Date of this Agreement, Concessionaire shall provide City with a Certificate of Insurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies shall be obtained from companies authorized to do business in the State of Florida with an A.M. Best's Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any replacement or substitute company shall also be subject to the approval of the City's Risk Manager. Should Concessionaire fail to obtain, maintain or renew the policies of insurance referred to above, in the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums expended by City in obtaining said insurance, shall be repaid by Concessionaire to City, plus ten (10%) percent of the amount of premiums paid to compensate City for its administrative costs. If Concessionaire fails to repay City's expenditures within fifteen (15) days of demand such failure shall be deemed an event of default, and the total sum owed shall accrue interest at the rate of twelve (12%) percent until paid. SECTION 12. INDEMNITY. 12.1 In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officials, directors, employees, contractors, agents, and servants from and against any claim, demand or cause of action of whatsoever kind or nature arising out of error, omission, or negligent act of Concessionaire, its officials, directors, employees, contractors, agents, and servants with regard to the program and operations contemplated in Agreement. 12.2 In addition, in consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officials, directors, employees, contractors, agents, and servants from and against any claim, demand or cause of action of whatever kind or nature arising out of any misconduct of Concessionaire, its officials, directors, employees, contractors, agents, and servants not included in the paragraph in the subsection above and forwhich the City, its officials, directors, employees, contractors, agents, and servants are alleged to be liable. 12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such liability that arises as a result of the willful misconduct or gross negligence of the City. 12.4 Subrogation. The terms of insurance policies referred to in Section 11 shall preclude subrogation claims against Concessionaire, the City and their respective 21 officers, employees, contractors, agents, and servants. 12.5 Force Maieure. Neither party shall be obligated to perform hereunder and neither party shall be deemed to be in default if performance is prevented by: a. Any act or chain of related acts resulting in Equipment destruction, vandalism or theft which renders at least fifty (50%) percent of the Concessionaire Areas in the Concession Service Zone unusable at any one point in time and which is not caused by negligence of Concessionaire; b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil commotion occurring which renders at least fifty (50%) percent of the Concession Areas in the Concession Service Zone unusable. c. any law, ordinance, rule, regulation or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, or war which renders at least fifty (50%) percent of the Concession Areas in the Concession Service Zone unusable. 12.6 Labor Dispute. In the event of a labor dispute which results in a strike, picket or boycott affecting at least fifty (50%) percent of the Concession Areas within the Concession Service Zone, Concessionaire shall not thereby be deemed to be in default or to have breached any part of this Agreement, unless such dispute shall have been caused by illegal labor practices or violations by Concessionaire of applicable collective bargaining Agreements (and there has been a final determination of such fact which is not cured by Concessionaire within thirty (30) days). 12.7 Waiver of Loss from Hazards. The Concessionaire hereby expressly waives all claims against the City for loss or damage sustained by the Concessionaire resulting from any Force Majeure contemplated in Subsection 12.5 and Labor Dispute in Subsection 12.6 above, and the Concessionaire hereby expressly waives all rights, claims, and demands against the City and forever releases and discharges the City of Miami Beach, Florida, from all demands, claims, actions and causes of action arising from any of the aforesaid causes. 12.8 Intentionally Omitted. SECTION 13. DEFAULT AND TERMINATION. Subsections 13.1 through 13.3 shall constitute events of default underthis Agreement. An event of default by Concessionaire shall entitle City to exercise any and all remedies described as City's remedies under this Agreement, including but not limited to those set forth in Subsection 13.4 and Section 14. 22 13.1 Bankruptcy If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 13.2 Default in Payment. In the event Concessionaire fails to submit any payment within five (5) days of its due date, there shall be a late charge of Fifty ($50.00) Dollars per day for such late payment, in addition to interest at the highest rate allowable by law. If any payment and accumulated penalties are not received within fifteen (15) days after the payment due date, and such failure continues seven (7) days after written notice thereof, then the City may, without further demand or notice, terminate this Concession Agreement without being prejudiced as to any remedies which may be available to it for breach of contract; and may begin procedures to collect the Performance Bond required in Section 14 herein. 13.3 Non-Monetary Default. In the event that Concessionaire or the City fails to reasonably perform or observe the non-monetary covenants, terms or provisions under this Agreement, and such failure continues thirty (30) days after written notice thereof from the other party hereto, such non-defaulting party may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which maybe available to it for breach of contract. In the event that a default is not reasonably susceptible to being cured within such period, the defaulting party shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default, but in no event shall such extended cure period exceed ninety (90) days from the date of written notice thereof. In the event Concessionaire cures any default pursuant to this subsection, it shall promptly provide the City Manager with written notice of same. 13.4 City's Remedies for Concessionaire's Default If any of the events of default, as set forth in this Section, shall occur, the City may, after expiration of the cure periods, as provided above, at its sole option and discretion, institute such proceedings as in its opinion are 23 necessary to cure such defaults and to compensate City for damages resulting from such defaults, including but not limited to the right to give to Concessionaire a notice of termination of this Agreement. If such notice is given, the term of this Agreement shall terminate upon the date specified in such notice from City to Concessionaire. On the date so specified, Concessionaire shall then quit and surrender the Concession Area(s) to City pursuant to the provisions of Subsection 13.7. Upon the termination of this Agreement, all rights and interest of Concessionaire in and to the Concession Area(s) and to this Agreement, and every part thereof, shall cease and terminate and City may, in addition to any other rights and remedies it may have, retain all sums paid to it by Concessionaire underthis Agreement, including but not limited to, the Performance Bond in Section 14 herein. In addition to the rights set forth above, the City shall have the rights to pursue any and all of the following: a. the right to injunction or other similar relief available to it under Florida law against Concessionaire; and or b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Concessionaire's default. 13.5 If an event of default by the City shall occur, the Concessionaire may, after expiration of the cure periods, as provided above, terminate this Agreement upon written notice to the City. Said termination shall become effective upon receipt of a written notice of termination by the City, but in no event shall Concessionaire specify a termination date that is less than sixty (60) days from the date of the written termination notice. On the date specified in the notice, Concessionaire shall quit and surrender the Concession Area(s) to City pursuant to the provisions of Subsection 13.7. 13.6 Intentionally Omitted. 13.7 Surrender of Concession Areas / Removal by Concessionaire of Eauipment/Improvements. Upon expiration, or earlier termination of this Agreement, Concessionaire shall surrender the Concession Areas in the same condition as the Concession Areas were priorto the Commencement Date, reasonable wear and tear excepted. Concessionaire shall, at its sole expense and at no charge to the City, remove all Equipment from the Areas, (as well as any other permanent or fixed improvements if so requested by the City Manager or his designee) no later than sixty (60) days after the conclusion of the Term, (or from the date of other termination of this Agreement) unless a longer time period is agreed to, in writing, by the City Manager). Concessionaire's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy 24 of any Concession Areas after termination of the Agreement shall constitute trespass by the Concessionaire, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City One Thousand ($1,000.00) Dollars per day per Area as liquidated damages for such trespass and holding over. 13.8 Intentionally Omitted. 13.9 Substitute Performance In the event that the Concessionaire fails to properly perform the removal of any Equipment and restoration of the Concession Areas to their original condition in accordance with the terms of the Agreement, then the City shall have the right to undertake and/or purchase, as the City Manager deems appropriate, any such supplies, materials, services, etc., covered herein and to charge Concessionaire for all actual costs thereby incurred by the City. Concessionaire shall be responsible for paying all of said costs. SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY. Concessionaire shall, on or before the Operational Rollout date, furnish to the City Manager or his designee a Performance Bond in the penal sum stated below for the payment of which Concessionaire shall bind itself for the faithful performance of the terms and conditions of this Agreement. A Performance Bond, in the amount of One Hundred Thousand ($100,000.00) Dollars, shall be provided by the Concessionaire in faithful observance of this Agreement. A cash deposit, irrevocable letter of credit, or certificate of deposit may also suffice, as determined by the City Manager or his designee, in his sole and reasonable discretion. The form of the Performance Bond or altemate security shall be approved by the City's Chief Financial Officer. In the event that a Certificate of Deposit is approved, it shall be a One Hundred Thousand ($100,000.00) Dollar one-year Certificate of Deposit in favor of the City, which shall be automatically renewed, the original of which shall be held by the City's Chief Financial Officer. Concessionaire shall be so required to maintain said Performance Bond or alternate security in full force and effect throughout the Term of this Agreement. Concessionaire shall have an affirmative duty to notify the City Manager or his designee, in writing, in the event said Performance Bond or alternate security lapses or otherwise expires. All interest that accrues in connection with any financial instrument or sum of money referenced above shall be the property of Concessionaire, except in an event of default, in which case the City shall be entitled to all interest that accrues after the date of default. SECTION 15. ASSIGNMENT. Concessionaire shall not assign all or any portion of its costs or obligations under this Agreement without the prior written consent of the City Manager, which shall not be unreasonably withheld. Concessionaire shall notify the City Manager of any proposed assignment, in writing, at least sixty (60) days prior to the proposed effective date of such assignment. In the event that any such assignment is approved by the City Manager, the assignee shall agree to be bound by all the covenants of this Agreement required of Concessionaire. 25 SECTION 16. SPONSORSHIPS. 16.1 The City reserves unto itself all present and future rights to negotiate all forms of endorsement and/or sponsorship agreements based on the marketing value of any City trademark, property, brand, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark property, brand, logo and/or reputation, shall belong exclusively to the City. Concessionaire shall be specifically prohibited from entering into, or otherwise creating any, sponsorships and/or endorsements with third parties which are based solely or in any part on the marketing value of a City trademark, property, brand, logo and/or reputation. The prohibition on Concessionaire entering into such sponsorship and/or endorsement Agreements utilizing the City's property, trademark, logo, brand and reputation, as defined above in this Section, shall not be interpreted to include nor prohibit the Concessionaire's right to sell, rent, or use, exclusively, any particular brand or product that would be permitted for use, sale, or rental pursuant to this Agreement. Moreover, the City will not limit Concessionaire's ability to negotiate a reduced rate for purchase, from any vendor, whose product(s) Concessionaire uses or offers for sale or rent pursuant to this Agreement. It is further acknowledged that the name, likeness, equipment, concepts, logos, designs and other intellectual property rights of Deco Bike, LLC. shall remain in the exclusive possession and control of Concessionaire at all times; provided, however, that Concessionaire hereby grants City an irrevocable license to use any DecoBike, LLC trademark, brand, and/or logo, for purposes of the City's promotion of the program and including, without limitation, the right to use such trademarks, brand, and/or logo in all media (for such public marketing purposes) whether now existing or as may exist in the future. 16.2 Advertisements The City acknowledges that Concessionaire may display limited commercial advertising material through the sale by Concessionaire of sponsorship placements upon bicycle baskets in the program (the Bicycle Basket Sponsorship Program). The Bicycle Basket Sponsorship Program is described in, and shall be subject to, the requirements in Exhibit 16.2, attached hereto. Any Advertisements displayed on bicycles shall comply with all Federal, State, Miami-Dade County, and City of Miami Beach laws, rules, regulations, ordinances, and codes, including, but not limited to, those pertaining to and/or related to billboards, outdoor advertisements, and signage, as applicable. In addition, the construction, materials, content and appearance of any Advertisements to be installed on the bicycles must be allowable and, if allowed, shall comply with such other and future requirements as Federal, State, County, and City authorities may from time to time impose, including, but not limited to, public safety, zoning, building, and aesthetic requirements. 2s Accordingly, any unauthorized Advertisements on bicycles (or on other Equipment, orwithin any Concession Area), or any Advertisements failing to comply with any applicable Federal, State, County, and City provisions shall and must be removed by Concessionaire, at its sole cost and expense, within forty-eight (48) hours from receipt of written notice from the City Manager or his designee. In the event such Advertisements are not removed within said time period, the City may, at its sole option and discretion, terminate this Agreement for cause, without further notice to Concessionaire, and without liability to City. Concessionaire herein acknowledges that the City reserves the right to impose such additional requirements for the installation and display of the Advertisements, at any time, at its sole option and discretion; provided that the City Manager or his designee shall provide Concessionaire with written notice of such additional requirements and such requirements do not frustrate the purpose and intent of this Agreement. The permissible content of Advertisements shall not include firearms, alcohol or tobacco products, or be of a sexually offensive nature. SECTION 17. NO IMPROPER USE. The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, any Concession Areas or improvements on equipment thereon, for any illegal, improper, immoral or offensive purpose, or for any other purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. The Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officials, employees, contractors, and agents from and against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of the Concessionaire, or any official, director, agent, contractor, or servant regarding the concession. In the event of any violation by the Concessionaire, or if the City or its authorized representative shall deem any conduct on the part of the Concessionaire to be objectionable or improper, the City shall have the right to suspend concession operation should the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of the City Manager or his designee within twenty-four (24) hours following written notice of the nature and extent of such violation, conduct, or practice. Such suspension to continue until the violation is cured to the satisfaction from the City Manager or his designee. SECTION 18. PRICE SCHEDULES. Concessionaire agrees that prices charged for bicycle rentals and membership subscriptions will be consistent with the price schedule(s) (herein submitted by the Concessionaire and approved by the City), in Exhibit 3.2.1 hereto. All subsequent price approvals and changes must be approved in writing by the City Manager or his designee. 27 The City shall have the final right of approval for all such price changes, but said approval shall not be arbitrarily or unreasonably exercised. SECTION 19. NOTICES. All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to the Concessionaire at the following address: Deco Bike, LLC. 3301 NE 1St Avenue, Suite LPH-6 Miami, FL 33137 Attn: Ricardo Pierdant With copies to: Ozzie Schindler, Esq. Greenberg & Traurig, LLP. 1221 Brickell Avenue Miami, FL 33131 All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested to the City of Miami Beach at the following addresses: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 With copy to: Parking Department City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attn: Saul Frances, Parking Director The Concessionaire and the City may change the above mailing address at any time upon giving the other party written notification. All notices under this Concession Agreement must be in writing. SECTION 20. LAWS. 20.1 Compliance. Concessionaire shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations, including but not limited 28 to all applicable environmental City, County, State, and Federal ordinances, statutes, rules and regulations. 20.2 Governing Law. Intentionally Omitted. 20.3 Equal Employment Opportunity. Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or pursuant hereto, will discriminate against any employee or applicant for employment because of race, creed, sex, color, national origin, sexual orientation, and disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to utilize minorities and females in the work force and in correlative business enterprises. 20.4 No Discrimination. The Concessionaire agrees that there shall be no discrimination as to race, sex, sexual orientation, color, creed, national origin, familial status, religion or handicap, in the operations referred to in this Agreement; and, further, there shall be no discrimination regarding any use, service, maintenance, or operation within the Concession Areas. All operations and services offered in the Concession Areas shall be made available to the public, subject to the right of the Concessionaire and the City to establish and enforce reasonable rules and regulations to provide for the safety, orderly operation, and security of the Areas and improvements and equipment thereon. 20.4.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami Beach City Code entitled "Human Relations", Concessionaire, by executing this Agreement, certifies that it does not discriminate in its membership or policies based on race, color, national origin, religion, sex, sexual orientation, familial status or handicap. 20.4.2 Equal Benefits Requirements: Concessionaire by its execution of this Agreement, further acknowledges that it is required to comply with all applicable provisions of City Ordinance No. 2005-3494, as same may be amended from time to time, which requires certain Concessionaire to provide equal benefits for domestic partners (the Ordinance). This Ordinance applies to all employees of Concessionaire who work within the City limits of the City of Miami Beach, Florida, and the Concessionaire's employees located in the United States, but outside of the City of Miami Beach limits, which are directly performing work on a contract within the City of Miami Beach. CONCESSIONAIRE, BY ITS EXECUTION OF THIS AGREEMENT, HEREBY ACKNOWLEDGES AND AGREES TO BE BOUND BY THE PROVISIONS OF THE ORDINANCE, AS SAME MAY BE AMENDED FROM TIME TO TIME. 29 SECTION 21. MISCELLANEOUS. 21.1 No Partnership. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the City and Concessionaire. 21.2 Modifications. This Agreement cannot be changed or modified except by Agreement in writing executed by all parties hereto. Concessionaire acknowledges that no modification to this Agreement may be agreed to by the City unless approved by the Mayor and City Commission except where such authority has been expressly provided herein to the City Manager or his designee. 21.3 Complete Agreement. This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and Agreements of whatsoever nature or kind existing between the parties with respect to Concessionaire's operations, as contemplated herein. 21.4 Headings. The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 21.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 21.6 Clauses. The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 21.7 Severability. If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified shall. 21.8 Riaht of Entrv. The City, at the direction of the City Manager, shall at all times during hours 30 of operation, have the right to enter into and upon any and all parts of the Concession Area(s) for the purposes of examining the same for any reason relating to the obligations of parties to this Agreement. 21.9 Not a Lease. It is expressly understood and agreed that no part, parcel, building, facility, equipment or space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that the Concessionaire's right to operate the concession shall continue only so long as this Agreement remains in effect. 21.10 Siqnage. Concessionaire shall provide, at its sole cost and expense, any signs utilized for its program. All advertising, signage and postings shall be approved by the City, and shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. Any signage posted by Concessionaire shall be subject to the prior approval of the City as to size, shape and placement of same, and no such approvals will be unreasonably withheld. City shall be responsible to provide, at its sole cost and expense, and as (or if) it deems necessary in its sole and reasonable judgment and discretion, any traffic, regulatory or public safety signs, whether related directly or indirectly to the program. 21.11 Procedure for Approvals and/or Consents. In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, it is acknowledged that such authority has been expressly provided herein to the City Manager or his designee by the Mayor and City Commission of the City. In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, Concessionaire shall send to the City Manager a written request for approval or consent (the "Approval Request"). The City Manager or his designee shall use reasonable efforts to provide written notice to Concessionaire approving of consent to, or disapproving of the request, within thirty (30) days from the date of Approval Request (or within such other time period as may be expressly set forth for a particular approval or consent under this Agreement). However, the City Manager or his designee's failure to consider such request within this time provided shall not be deemed a waiver, nor shall Concessionaire assume that the request is automatically approved and consented to. The City Manager or his designee shall not unreasonably withhold such approval or consent. This Subsection shall not apply to approvals required herein by the Mayor and City Commission. 21.12 Intentionally Omitted. 21.13 No Waiver. 31 21.13.1 It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred, will not be considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. 21.13.2 A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. 21.13.3 The receipt of any sum paid by Concessionaire to the City after breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupation, and not as rent, unless such breach be expressly waived in writing by the City. 21.14 No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, including, but not limited to subconcessionaires, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. 21.15 Proposal Documents "Proposal Documents" shall mean Request For Proposals No. 44-07/08 For a Self-Service Bicycle Rental Program, issued by the City in contemplation of this Agreement, together with all amendments thereto, if any, and the Consultant's proposal in response thereto (Proposal), which is incorporated by reference in this Agreement and made a part hereof; provided, however, that in the event of an express conflict between the Proposal Documents and this Agreement, this Agreement shall prevail. SECTION 22. LIMITATION OF LIABILITY. The City desires to enter into this Agreement placing the operation and management of the Concession Area(s) in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action for breach of this Agreement, so that its liability for any such breach never exceeds the sum of One Hundred Thousand ($100,000.00) Dollars. Concessionaire hereby expresses its willingness to enter into this Agreement with a One Hundred Thousand ($100,000.00) Dollar limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of One Hundred Thousand ($100,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be liable to Concessionaire for damages to Concessionaire in an amount in excess of One Hundred Thousand ($100,000.00) Dollars, 32 for any action for breach of contract arising out of the performance ornon-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. SECTION 23. VENUE. This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA(S). SECTION 24 CITY'S CONTRIBUTION TO PROGRAM. The City agrees to provide Concessionaire with the following forms of assistance for the program: 1. Banner and link for program on City's website; 2. Monthly feature in Miami Beach Magazine (PSA's, Editorials and/or other placements) during the first contract year following the Operational Rollout date. (Concessionaire shall provide camera-ready artwork); 3. Quarterly a-mail blasts to all City employees and others on City a-mail lists during first contract year following Operational Rollout date; 4. Participation in the Federal Bicycle Commuter Act Employee Reimbursement Program, if possible; 5. Provide concrete or other appropriate surface pads or pavers for Concession Areas that are not already paved; remove grass and debris from Concession Areas priorto Concessionaire's installation of Equipment, and upon written notice by Concessionaire (per Area); 6. In the event of a hurricane, provide a "loading area" for Concessionaire to use where Concessionaire can temporarily park trailers or shipping containers to load bicycles (and/or as a point for pick up/drop off of same by Concessionaire); 7. Provide an area sufficient for Concessionaire to use in the event of a hurricane where Concessionaire can temporarily park trailers or shipping containers to store bicycles and/or as a point for pick up/drop off of same by Concessionaire. 8. Regular PSA features on Channel 77 for first six (6) months following Operational Rollout date, to announce program implementation and, thereafter, on at least a quarterly basis throughout Term. 33 IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year first above written, indicating their Agreement. Attest: Robert Parcher, CITY CLERK CITY OF MIAMI BEACH, FLORIDA Matti H. Bower, MA' Attest: DECO BIKE, LLC. Signature/Secretary Print Name Ricardo/pierdant, PRESIDENT APPROVED A3 TO FORM ~ LANGUAGE ,8~ FOR E,X~CUTlON k~l~ e9 35 Exhibit 2.2 (a) Concession Area Site Plan ~ ~~ i _ ~~~~r 35 ._~ ~ ~.~ t ~ [ ; ~^ ~, ~~,,,d„__i 8 Y ~~ .: ~ ~ `: .,~ ~ k ~ F t/ r/`'? 5 t _ ~ ~~~, '+~._ ~t ~~ si ~ ~. ,.~~ i~' m; 'k~ 1 g~ ~' ~ ~TMh .,~..~ t ~., 1 ---- ~"' ~ } --1~ I ~•' ~ ~ ; ~, ~ t ~ ~. ,...~.-.~i\ 3 f ~ ~ ~ F ~ `l~~ i £1 f t~` j ~~r / II f @ '~ ~ti 1 ~ Mme, # I ~' F ~ f j{~ if 3 ~'~~ ? ~~„ _..._ ~.. t ' ~'d j ' ` _i vn ~ j--.._. _ ~ .Y ~~~~ t 'mho j. i ~~ + f .y ~ 5 i~ [[ ~ ~ }} ( 555 ' ~ ~""t^.....~ ~ f t 7 -__ , , 1 -........, t .- i rnmsr /1 r I* € l / NR f • ! ~ ~ _..Q .._ f t--g-wmx t( W i v ,.M.: ~ { ~yiw .. r '^ fir" .. ,, e i t iF " 6 8 g }_ Mn. ~ n~' „ f ,. m ~ I ~ K,. t 4 R ,~. ~ J P f ~ _.. £ J L S Y G_e_ j .,.. ,.,, ~ ..._ i ._, e ~ ~. ~.r ~ - - _• ~ •~ 36 i m +'~"'~ ~ ~--t eim si e F """ ~ ~ -, 3 ----DfTH ar--^.~ r p 2 -07111 ~ 5•' . f ~ 3 ....._ ^-. ._. ~ __-,»ETk1WFTER OR".,^°`:~- ,. Snit 37--__ ~ &~ '....--NT 5TH !S I f ~5.. i < u ~~ J ~ ~ r 1 m r o r _ ~ ~ _~_ r ~.._.--__WYTO WI FO ~-~_"~' -_~~Bj~C1 YNE 1`~ j m I ~n ~ ~ M t fr 2 I ~._~-r RS ~. ~ 4f ' Y j i ; ; ~ r ~ ~~ ~_~++msT ~ T y~=~ o !$i ~ v ~, ~_.._w e,roaE ca-- ` s H sr---~---~-'-'_""' W i z a .. ,,. r ~ 1 ~ ~,_~i~„ 1 aa~x ~sr I t~~ ' I 4 ~ . ~ r < ~ -'1PD SY_----~~- F T y _.S 7 . I R r ~y ' ' k ! ~t b S.sT--R ~ ~ .: ~ ~ _ ~~~. ~ .. _„ ...~.,r v F ~.., y s c ~ ~~F _ 7 SNORE D17 --~" ~ ' P ~ ' R ~ _ ~ _.i , . 1 ..-~ ~, ll ~ P I :, _ i ~a ..~ 0 L ~ • . ~ - . . . n ~ A~pa f Tie t -".'.~_ _i. i i -" -- 1 ."'~- ~ C~ Q t w ~ ~ _. o 'f '.. C 4 f .~ ~} Z ` I u. j... -Ii0M1/~110" p!^..i J S o Z ~. i .,~ EYFRGl~1DE.5 ~ I .r ~~ ~ ~ , 4y~ s 37 Exhibit 2.2 (b) Concession Area Site List South Beach Station #: Phase: Closest Crossroads Street: Avenue: 1 1 outh Point Drive ashington 2 1 1st Street cean Drive 3 1 1st Street ashington 4 1 1st Street Iton Road 5 1 nd Street efferson Ave. 6 1 /t 1st & 2nd cean Drive 7 1 rd Street ashington 8 1 th Street Euclid Ave 9 1 th Street efferson Ave. 10 1 th Street Iton Road 11 1 th Street cean Drive 12 1 th Street ashington 13 1 th Street ichigan 14 1 th Street cean Drive 15 1 th Street ashington 16 1 th Street eridian 17 1 th Street est Ave 18 1 th Street cean Drive 19 1 th Street ashington 20 1 th Street Euclid Ave 21 1 th Street ichigan 22 1 10th Street Iton Road 23 1 11th Street cean Drive 24 1 11th Street ashington 25 1 11th Street Euclid Ave 26 1 11th Street efferson Ave. 27 1 11th Street Lennox Ave 28 1 13th Street ashington 29 1 13th Street ennsylvania Ave 30 1 13th Street ichigan 31 1 Espanola cean Drive 32 1 Espanola ashington 33 1 Espanola Euclid Ave 34 1 12th Street est Ave 35 1 14th Street est Ave 36 2 enetian Way I sland Ave 37 1 16th Street ennsylvania Ave 38 1 1 6th Street ichigan Ave. 39 1 1 5th Street ay Road 40 1 1 6th Street ay Road 41 1 Lincoln Road ollins Ave. 38 South B each Closes t Crossroads Station #: Phase: Street: Avenue: 42 1 Lincoln Road rexel Ave. 43 1 incoln Road ennsylvania Ave 44 1 incoln Road Euclid Ave 45 1 incoln Road eridian 46 1 incoln Road efferson Ave. 47 1 incoln Road ichigan Ave. 48 1 Lincoln Road Iton Court 49 1 17th Street eachwalk 50 1 17th Street onvention Center Drive 51 1 16th Street ollins Ave. 52 1 18th Street ollins Ave. 53 1 19th Street ashington 54 1 1st Street ollins Ave. 55 1 3rd Street ollins Ave. 39 Middle Beach Station #: Phase: Closest Crossroads Street: Avenue: 1 1 5th Street ollins Ave. 2 REMOVED 3 1 Dade Boulevard N. Michigan Ave. 4 1 0th Street est Ave. 5 1 18th Street Purdy Ave, 6 1 1st Street Iton Road 7 1 8th Street ollins Ave. 8 1 0th Street ollins Ave. 9 2 est 30th Street Royal Palm Ave. 10 2 est 27th Street Iton Road 11 2 4th Street ollins Ave. 12 2 est 24th Street Royal Palm Ave. 13 2 orth Bay Road Iton Road 14 2 7th Street ollins Ave. 15 2 0th Street ollins Ave. 16 2 est 40th Street heridan Ave. 17 2 1st Street Royal Palm Ave. 18 2 1st Street rairie Ave. 19 2 1st Street hase Ave. 20 2 1st Street arden Ave. 21 2 3rd Street ollins Ave. 22 2 5th Street ollins Ave. 23 2 .45th Street Royal Palm Ave. 24 2 .43rd Court .Michigan Ave. 25 2 6th Street ollins Ave. 26 2 .46th Street N. Michigan Ave. 27 2 8th Street ollins Ave. 28 REMOVED 29 2 0th Street ollins Ave. 30 2 2nd Street ollins Ave. 31 2 4th Street ollins Ave. 32 2 6th Street ollins Ave. 33 2 9th Street ollins Ave. 40 North Beach Station #: Phase: Closest Crossroads Street: Avenue: 1 2 4th Street ollins Ave. 2 2 9th Street ollins Ave. 3 2 1st Street ollins Ave. 4 2 1st Street yron Ave. 5 2 Bay Drive Rue Vendome 6 2 Normandy Drive Rue Vendome 7 2 ormandy Drive Rue Notre Dame 8 2 ormandy Drive rouville Esplanade 9 2 arseille Drive Rue Granville 10 2 2nd Street arlyle Ave. 11 2 4th Street cean Terrace 12 2 4th Street Dickens Ave. 13 2 Fairway Drive orthshore Drive 14 2 7th Street ollins Ave. 15 2 7th Street yron Ave. 16 2 9th Street ollins Ave. 17 2 1st Street bbot Avenue 18 2 4th Street ollins Ave. 19 2 1st Street respi Blvd. 20 2 5th Street respi Blvd. 41 Exhibit 3.1 Program Equipment: Bicycle Image & Specs Base Unit/Stock Image Shown, Subject to Modifications. Will feature all equipment required by the RFP. ~£~ i B~~T P+~I+~IS~~}~IIP F~l~l~'l . Rig lit fat 1=~a~oica ~, F~~fi B~a~k+et I"ra . Gam ~a~~f b 1 ~E TM~ r I :3. 42 Deco Bike Custom Cruiser 26" Coaster Brake Model Frame 6061 PG Aluminum T4/T6 H/T:50*44*34x132 Fork CS-9101 Hi Tensile Steel, Integrated Style Crown, Curved Le s with Double E elets 28.6x1.4T Headset Alloy, 25.4-44-30, Semi Integrated Bearings Handlebar Custom, Allo & Steel Stem Alloy, 180mm Quill x 90mm Extension x 30 Degree Rise25.4mm Barbore Gri s Black/Gre , 130mm Len th Seat Binder Allo Seat Clamp with Quick Release, w/Lockin Mech. Seat Post Alloy w/Integrated Clamp, 31.8mm x 400mm , Accommodates Riders 5'-6'3" Saddle Cionlli 7257 with Chromoly Rails and Elastomer Sus ension Cranks Alloy 3-Piece Crank with PVC Disc Cover-Grey, 170mm, 42T Steel Rin Chainrin Steel, 42T x 1/2" x 1/8" BB Steel, BC1.37" x 24T. Double Sealed Bearings Shimano Tool Com atible Chain K.M.C. 2410 Rust Buster, 1/2" x 1/8" Chain Guard Steel or alto Pedals VP-LED1, Boron Axle, 9/16" F-Hub DH-3N20NT D amo Front Hub 12G x 36H, Nutted R-Hub Shimano Internal Coaster Brake, 12G x 36H x 3/8" x 150mm Axle S rocket /Freewheel 20T x 1 /2" x 1 /8" Rims 26" x 1.95"/2.125" x 36H x 12G, Allo S okes 12G Stainless Steel with Brass Ni les Tires CST 26 x 1.95" Tubes Tubes with Puncture Sealant, American Schrader Valves, Kickstand Allo Li htin Active Front and Rear Fenders PC Fender Set. Rear Fender Must have 2 Struts instead of 1 Fender Must also have SW-803G Fender Protector or similar Bell Allo Bell with Plastic Base Basket Stainless Steel or Alloy Custom Integrated Basket Structure Reflectors 4 pieces to Meet CPSC Standards Bike Weight 36-38 Pounds, Based on Custom Specs Note Specs Sub'ect to Chan a and Modification 43 Exhibit 3.1.1 Program Equipment: Kiosk Station Image For Informational Purposes Only, Subject to Planning/Zoning Approval and modification as necessary. 44 ~,~ ~`~ --f - - ~ -ate -y'-~ ~' ~'`~ ~~ f //Ifs~ ~ /F"~;~ t^~ ~l! ~~1T~ ~l..TE~ F ~~E T El.(1 EEC ~'F`~~E ~~ 45 Exhibit 3.1.2 Program Equipment: Typical Site Plan & Elevations For Informational Purposes Only, Subject to Planning/Zoning Approval and modification as necessary. E+C ~ ' ~3P ~w .~ -.t«,.;~ _v. , ~~. ~r_: T,~ ~,, ..,:... ,„~,~~b.,.,.--~i ..~..,~ ,.~.x.~~..:,,.., ,..,..~ .~.~.~. a ; ,. ,_,. a%" ~Y~ 1r Ri ~ ~ i ~+t ~~ RhY; iMS.'~J4/ litiG iMw ~-r ~ 44f~ ~~.: ~;~~ 46 EXHIBIT 3.2.1 PRICE SCHEDULE Short-Term Bicycle Rentals: $1.95 per half-hour to $3.50 per half-hour $3.95 per hour to $6.95 per hour Benefits: All short-term bicycle rentals provide the user access to any bike available in the program at any location. A member can pickup and return a bicycle to and/or from any kiosk location with docking space or inventory available. All members will enjoy the amount of time contracted for. Should a member not retum their bicycle to a rack within that time, their credit card will continue to be charged in the same increments in which they chose to rent. Acceptable Forms of payment: Credit Card Membership Subscriptions: ^ Monthly - $9 per month to $16 per month ^ Weekly - $12 to $14 ^ Benefits: All membership subscriptions provide the user access to any bike available in the program at any location. A member can pickup and return a bicycle to and/or from any kiosk location with docking space or inventory available. All members will enjoy an unlimited amount of daily trips up to thirty (30) minutes in length each. If the 30 minute time limit is exceeded, escalating late fees will be assessed to insure prompt returns. ^ The following free period and fees apply: o Free 1St half-hour o $2 2"d half-hour o $4 3~d half-hour o $6 4t" half-hour and each half-hour thereafter ^ Acceptable Forms of payment: Credit Card and/or checks and money orders Patrons are required to operate the bicycles at their own risk while checked out. In the event of bicycle theft while a patron has a bicycle checked out, such should be reported to the police and patrons shall be required to obtain a police report. Concessionaire may, at its sole option, choose to refund all or part of any patron's security deposit or rental fees it deems necessary on acase-by-case basis. 47 Exhibit 3.4 Hurricane Plan Documents Contained herein is a copy of the following documents applicable to the hurricane preparedness plan in Section 3.4: - Warranty Deed for Warehouse/Storage/Parking - Authorization Letter from Owner Concessionaire also intends to lease an additional warehouse facilities capable of accommodating the bulk of the program's equipment. Ale~andin ^IaE r~~r~n ~, Zo~® To: Deca Bike, LLB. 3301 ME 1'~Ayanun Mliami. F~.331~J7 Re: HurrioaRe Storage Miami Beach BPcyole f~enEal Rrogram Tt~ whbrn it may concern: I hereby authorize beta Bike, LLG. to utltlze my warehouse. parking and storage faoi~s {in addition to #heir awn premises in the ewant of a hurricane so that 4hey may store equipment as needed to proisd it fin:r the adverse o~rsether condiiions. Aifacfted yb~ will find a copy of my de,E,d. Should you have any questiang, plea$e feel free to contact me at 305-742-7333. Regards,_ _.~ ~~ t eta ro Qiaz rom~Arty O wnar 1332? ~W 135th ,4vanua Miam7, FL 33185 48 •il'I15 WARR,IR'1'1C 7l1iLfl reuiir un~ rsrcuter: ihi+Ckerari 52, ]6t:3lvy LD[Z1ND3l. 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I:k Gold Lu"'Litla: Go.~i~ ?720 Coral iYer. r~ Floor ddinrm. Yton~ Ai'.45 a''~itRA:'aITY DEED 'acver7r 1pOmiamC Peeee. Idmdfioet:aa ;.r~ol'a+I Name+et (l4aeeawr v~ Caere tlas dear •geeta'' and'mate!' m:trdr dl tie poen to fait aSie'IlLL`R aM 6e hEl~, lf=a. ~,epee~enmu.• e. ~ ~xaw ui lnS: ~ y.Li Ewa y~rya max r w ~df ~u~ ~ iQ_p Ytas~mut ifd .a•r ~.r ill`~ur~~auo"t'a~i/ij - .a'.~~uiva `~e~uw '.b~ 5. Tmairg, :rsricnms, }mrfatsuma, amt nlu:r regaireratws mmp:ucd by' rn: at the darttimm of my gatvn',nasatw] sitthoriry. ti. P~_btte tatt:re3• aaemeau a!rexaQ ... ....._._....., . ..............y .~,.~.~-..,... _._ __..~..~..,......,~..~.. ....~... ... ...~ ,r..,y y.... ... .. ~ 3. 'Ititwy ptwirww, wrenau Lt, liens, cuudiliumr, a~u.-aclaxib oral apLiter rua.aiaed ia, mdry~ls any easea'xrar eatrlilehai by, tlu 1)m lareeta of Camdm®ivrc racardei hr Gdlc:~ B.ecafds Q aoot:.?233, Page 532, oflxprb1:e mrorrde ofMlaea!-Dock Cara-~. S'FAT'F P1F -~ -;]~~r~f TA1a ~n } fwd. Fdri lR 1 fl1M 1n ItIKr~' 9en~a~ 9nnl 1!'i 19 Dn'a R^[Il ODLTITY OF Ir~-1fl,D~lDH ,l t~~ I HSBERY CEIiTQ•i Est on dis Say. hefar tna, an o!ficer daiP enHa~'ixadin the 57tte ati>L"eoasd mu. is the Gacziy atforraaid U h+tQ asbowla~gaonq, PK~IY aPPca-ec 1~1enm 1L.P.. lfatahadm, whm is pR901telly taa~ert W ©t: to be the Fsraon iiGrcnrcd m amt vl:o t:sceutrd the 3ivegoiag iaahtwear or wLn hee pmdt:cnd ~Knsti'f r odenlSia4ira curl wlm aw.xr. ww~! w:~k~.~•.tidr_lgtdb:JWir._iar tEraf hu exeeurcdtlte same. ~'".Cl'stla_SS suf lra~l arui uAiur! at:aF it •1x County aa.A ~`pr~ last abmtaaij ibis ~l ~ ~s of ~'~%t ~~ I~PJ Zr~.'~ ~. Nui:utYL~illt.lc,.~:tSt6aoF ... , -~~,~ Rirf -rrtmc ~~ II~Dt1~0 :1fyCaftmtitaieaE~itss: `'Fai ter.Nor91,209 s~M~ ~ Oeadal?hro A<rete ~aeelas4a.:m XFJ~ l3C213Skl~ dH .I klOe rB BODi? S[ .tc Au.i Eac anal ~atlvt erar:by !ul)3' •raz~t IEo 4t1:. to aadland, aad+rill defend tLe aeaue agairstlh iaafsi Bairns of aIl tx;rrou aLontaoeve_. Cxaatat affirms t11at tail peo~ttty dozc aotcoaat:tute alts tome scrod of $c 13aaax. i;rts~ raFides at 7'il A CArJgs~ --.-.•`~~-G ~ts~A~J4i_•-. nttxwssq •~ 'e:Ao Trk~+.i' ~•+tiP- co~+~Sti'~a-ttif7,~ ~~,1~ lY Wl'I:NE;~ WHLr1tTk7r,'1'ac acid parttr aff{tc firx, fat ttss hereanfn eeF itv han•1 and real he clay and year fits- zlxrm wr ilhcn. S:gaetl, rotttod and dali•aed in tLe prarcac c of t ~~ ...( _'.~~u1 ~iy~~fi~,ra~,l~t1 Pr~rY l+ie„r,~ 7~nne.mx ri-r aer.~,re-N r r~ ~~~. T.T)f`TAM1't) R.A14TAf'EIAT)Ct ~,,: 49 Exhibit 16.2 Bicycle Basket Sponsorship Format The maximum sponsor placement surface area shall be limited to a total of 1.5 square feet per bicycle, regardless of shape or form. Such sponsor placements shall only appear on bicycles in the program and not upon other structures in the Concession Areas. ~!E~~ #E 6,I~GET PC71"+ii~iP' F~R~4T ~~ara ~c~tlinec~ hea~~ oomo- data ar~~v~r i~~1o$ ~r~ ~k~t. ~"vtal p~oirr p~l~ace- P't"11a ~ lirrvitl fit3 ,~ ~Q~JQI'Qh ~3!!r ~~ ~ , Right 8~1~t F~~ciQ 2. Frca~t Bo f F~a;~i~r ~. lef°t Beat Fc~~c~a 1 °*k `~ i~ 50