Concession Agreement with DECO BIKE, LLC.2023-32903
CONCESSION AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH,FLORIDA
AND
DECO BIKE,LLC.
FOR THE IMPLEMENTATION,MANAGEMENT,AND OPERATION
OF A SELF-SERVICE BICYCLE RENTAL &SHARING PROGRAM
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CONCESSION AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH,FLORIDA
AND
DECO BIKE,LLC.
FOR THE IMPLEMENTATION,MANAGEMENT,AND OPERATION OF A SELF-
SERVICE BICYCLE RENTAL &SHARING PROGRAM
THIS CONCESSION AGREEMENT (the "Agreement")made on January __,
2025 with an effective date of January 1,2025 ("Effective Date"),between the CITY OF
MIAMI BEACH,FLOR ID A,a municipal corporation of the State of Florida,having its
principal address at 1700 Convention Center Drive,Miami Beach,Florida,33139
(hereinafter called the "City"),and DECO BIKE,LLC.,a Florida limited liability corporation,
whose address is 41 NE 17"Terrace,Miami,Florida 33132 ("Concessionaire").
WITNESSETH
WHEREAS,based upon the longstanding and satisfactory performance record of
Concessionaire under the prior concession agreement,dated July 15,2009 (the "First
Concession Agreement"),including its ability to generate revenues for the City,on October
18,2023,the Mayor and City Commission adopted Resolution No.2023-32803,accepting
the recommendation of the Finance and Economic Resiliency Committee,which
recommended extending the First Concession Agreement for five (5)more years,and
waiving,by 5/7"vote,the formal competitive bidding requirement in Section 2-367(e)of the
City Code,finding such waiver to be in the best interest of the City,and authorizing the City
Manager to negotiate and execute a new Concession Agreement with Concessionaire,for
the Implementation,Management,and Operation of a Self-Service Bicycle Rental &Sharing
Program;and further approving the terms of the Sponsorship Agreement between
Concessionaire and Citibank,authorizing the operation of the Program under the title
sponsored name of "Citi Bike".
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:
SECTION 1.RECITALS.
The above recitals are true and correct and are incorporated herein by reference as
part of this Agreement.
SECTION 2.DEFINITIONS.
"City"shall mean the City of Miami Beach,a Florida municipal corporation having its
principal offices at 1700 Convention Center Drive,Miami Beach,Florida 33139.
"City Manager"shall mean the Chief Administrative Officer of the City.The City Manager
shall be considered to include any duly authorized designee(s),including,but not limited to,
the City's Contract Manager,and shall serve as the City's representative to whom
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administrative requests for approvals shall be made and who shall issue authorizations
(exclusive of those authorizations reserved to the City Commission).
"Contract Manager"shall mean the individual appointed by the City Manager who shall be
the City's authorized representative to coordinate,direct,and review on behalf of the City,
all matters related to the Program,except as otherwise provided herein.For purposes of
this Agreement the City's Contract Manager shall be the City of Miami Beach Parking
Department Director.
"Concessionaire"shall mean Deco Bike,LLC,a Florida limited liability company.When the
term "Concessionaire"is used in this Agreement,it shall be deemed to include any
subconsultants,subcontractors,and any other person or entity acting under the direction or
control of Concessionaire.
SECTION 1.TERM.
1.1 The term of this Agreement shall be for a period of five years (5)Contract
Years,commencing on January 1,2025 ("Commencement Date")and ending
at 11:59 p.m.on December 31,2029 (the "Term").
1.2 (Intentionally Omitted)
1.3 For purposes of this Agreement,the first "Contract Year"shall be defined as
commencing on the Commencement Date and thereafter continuing for twelve
(12)full calendar months,ending on the last day of the 12"full calendar month.
Thereafter,each subsequent Contract Year shall be defined as that certain 365
day period commencing on the first day of the calendar month following the end of
the prior Contract Year.
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 Implement,Manage,and Operate a Self-Service Bicycle Rental &Sharing
Program using a combination of docked regular bicycles and docked electric-assisted
bicycles ("E-Bikes")(each a "bicycle"and collectively the "bicycles"),as more particularly
described herein (the "Program"),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 Citywide,and individually shall include all the
Concession Areas (individually referred to as a "City Property"or collectively as
"City Properties"),as more particularly delineated in Exhibit 2.2 within the city limits
of the City of Miami Beach.
2.2 Concession Area(s).
The Concession Areas are the actual physical site locations for the Program rental kiosks
as designated by the City Manager,in the City Manager's sole discretion,to be used
exclusively for the Program,as delineated in Exhibit 2.2 (Typical Concession Area Site
Plan and Concession Area Site List),incorporated herein by reference and attached hereto.
In selecting the Concession Areas for this Agreement,the parties shall give consideration
to minimizing the impact upon the available number of public parking areas/spaces in the
City.Any change in the location of the Concession Areas shall be subject to the prior
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written approval of the City Manager,in the City Manager's sole and absolute discretion,
and Exhibit 2.2 shall be amended to reflect the approved change to the Concession Areas.
Additionally,any approved removal of an existing Concession Area and/or creation of a new
Concession Area shall be performed at Concessionaire's sole cost and expense,with the
removal of an existing Concession Area being performed in conformance of the terms set
forth in Subsection 13.7.
2.2.1 In the event that an approved Concession Area is subsequently found to be
unsuitable for a kiosk location,Concessionaire and the City shall cooperate
to find a replacement Concession Area;however,in the event the parties
cannot reach agreement,the decision of the City Manager shall prevail.
2.2.2 Underutilized Concession Area(s).
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 herein),or as may otherwise be reasonably
demonstrated by Concessionaire to the satisfaction of the City Manager,
the City Manager may deem a Concession Area an "Underutilized"
Concession Area.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
find a replacement Concession Area;however,in the event the parties
cannot reach agreement,the decision of the City Manager shall prevail.
2.2.3 High-Risk Concession Area(s).
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 (as defined herein),or as may otherwise be reasonably
demonstrated by Concessionaire to the City Manager,the City Manager
may deem a Concession Area a "High-Risk"Concession Area.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
occurring at the remaining Concession Areas.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 find a replacement Concession Area;however,in the event the parties
cannot reach agreement,the decision of the City Manager shall prevail.
SECTION 3.USES.
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:
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3.1 Docked Bicycle Rental Services and Program Equipment.
Concessionaire shall provide bicycle rentals at automated,self-service kiosks in
the Concession Areas,on a short-term and subscription basis,incorporated
herein by reference and attached hereto as Exhibit 3.8.The City herein approves
the following Program Equipment,depicted in Exhibit 3.1 (Program Equipment),
incorporated herein by reference and attached hereto,which includes:(i)the
types of rental kiosks and bicycle racks depicted in Exhibit 3._1(a)Rental Kiosks
and Bicycle Racks);(ii)the types of docked bicycles depicted in Exhibit 3.1(b)
(Bicycle Image and Specs),incorporated herein by reference and attached
hereto;and (iii)the types of docked E-Bikes depicted in Exhibit 3.1(c](E-Bike
Image and Specs"),incorporated herein by reference and attached hereto.Any
amendments to Exhibit 3.1 must be approved in writing by the City Manager or
designee,on behalf of the City in its proprietary capacity,prior to such changes
being implemented within the Concession Area(s),and the respective exhibit(s)
will be amended accordingly.Additionally,notwithstanding the City's proprietary
approval of any Program Equipment,Concessionaire shall be responsible for
securing,at its sole cost,any required regulatory approvals as described in
Subsection 3.2.2.
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 Concession Area(s)hours of
operation,as set forth in Subsection 3.9 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 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 All respective equipment within an individual Concession Area including,
without limitation,the rental kiosks,bicycle racks,and bicycles (all of which
may be hereinafter referred to collectively as the "Equipment")shall be
placed substantially in accordance with the approved Site Plan within the
Concession Area.A typical Site Plan is depicted in Exhibit 2.2.The City's
Contract Manager shall keep a record of the Site Plan for each
Concession Area.Concessionaire shall not deviate from approved Site
Plan without the prior written consent of the City Manager or designee.
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3.1.2 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
good working order and free of rust;all moving components lubed;bicycle
frame and fork structurally sound and in a clean condition;lights and
reflectors functioning as designed;pedals in functional order;brakes
functioning properly;handlebars properly attached and functional;tires
inflated and free of excessive wear;wheels/spokes functional and free of
excessive wear;seat in proper working order;all bolts and nuts properly
secured;and all RFP-required accessories present and functioning as
designed.
Concessionaire shall maintain the rental kiosk and bicycle racks in the
Concession Areas in 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 became aware (or should be aware)of the
damage.
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 Commencement Date,the City may,at its option,request
that Concessionaire prove it is operating 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
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3.2
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 City of Miami Beach).
Design,Permitting,Delivery,Acceptance and Installation of 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 3.1.
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 designee.
3.2.1 Concessionaire shall provide,at its sole cost and expense,any and all
design services including,but no 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,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 kiosk 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.
3.2.2 Although the City Manager,on behalf of the City,in its proprietary capacity
may approve the design and color of the Equipment,said approval is
subject to Concessionaire securing,at its sole cost and expense,all
required regulatory approvals from all governmental authorities having
jurisdiction over the Program,in connection with the permitting,installation
and operation of the Program.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 their 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
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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 may be required by the City,
as owner of the land).
3.2.3 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 engineer required herein
shall also be duly licensed and certified by the State of Florida to engage
in the practice of engineering in Florida.
3.2.4 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.
3.2.5 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,the City may terminate this Agreement for cause without liability to
the City.Additionally,the City at its discretion,but without obligation,may
secure the release of the lien and Concessionaire shall be responsible for
promptly reimbursing the City for all costs associated with the release of
the lien including,without limitation,the lien amount and all costs and
attorney's fees associated therewith within ten (10)days after rendition of a
bill or statement.
3.2.6 City shall not be liable for any claims,losses or damages suffered by third
parties arising from Concessionaire's or its officers,agents,employees or
contractors;fabrication,construction,installation and maintenance of the
kiosks and bicycle racks,unless caused by City's gross negligence or
willful misconduct.In addition to the preceding sentence,Concessionaire
shall maintain,or require that is contractor(s)maintain:(i)worker's
compensation insurance in at least the minimum amount required by
Florida law;and (ii)Commercial General Liability on a comprehensive
basis,including Contractual Liability,Products/Completed Operations,in
an amount not less than $1,000,000 combined single limit per occurrence
for bodily injury and property damage.The City of Miami Beach,Florida
shall be included as an additional insured with respect to this coverage,
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and shall provide to City with a certificate evidencing such coverage.
3.3 Project Schedule.
The system is already deployed and no downtime is required for the implementation
of this Agreement.
3.4 Fleet.
Concessionaire is to provide the following bicycle fleet:
•100 docked E-Bikes in operation,which number may be increased to up to
200 at the option of the City Manager,to be operated pursuant to the docked
E-Bike Guidelines set forth in Exhibit 3.1(c);
•Fleet of 1,100 docked bicycles in operation on a Cityw ide basis,including
100 docked E-Bikes,subject to increase by up to 100 more docked E-Bikes,
which may be approved by the City Manager,for a total fleet of up to 1,200
docked bicycles ("Operational Ceiling").
3.5 (Intentionally Omitted)
3.6 Additional Equipment.
Notwithstanding any provisions to the contrary herein,and subject further to
approval by the City,which approval shall be at the City Managers sole and
absolute discretion,the City shall be solely responsible for determining the need
(if at all)for installation of additional Equipment on the City Property,based on
usage and operational load.In the event that the City determines,and
Concessionaire agrees,that there is a need for installation of additional
Equipment on the City Property,the City,in its sole discretion,shall determine the
additional Concession Area (or Areas)for such Equipment,and Exhibit 2.2 hereto
shall be amended accordingly to identify any such additional Concession Area(s).
3.7 Removal of Equipment at Request of City.
Notwithstanding the approval of the installation of any Equipment,within a
designated Concession Area,the City Manager may request the removal of any
Equipment,when the City Manager,in the City Manager's sole and reasonable
discretion,deems that the service of a particular Equipment is no longer required.
Except in the case where exigent circumstances exist,which in the City
Manager's discretion require a shorter response time,the City shall provide
Concessionaire with thirty (30)days written notice of such request ("Request
for Removal").Upon receipt of a Request for Removal,Concessionaire shall
remove said Equipment in conformance of the terms set forth in Subsection 13.7.
3.8
3.9
Price Schedule for Program Services.
Concessionaire shall provide the Program services based upon the price schedule
delineated in Exhibit 3.8,_incorporated herein by reference and attached hereto.
Any changes to these fees must be approved,in writing,by the City Manager.The
City shall have the final right of approval for any changes in the fees.
Hours of Operation.
All Concession Areas and operations shall be open 24 hours per day,365 days in
the year,weather or events of force majeure permitting.
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3.10 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-street storage facility.Concessionaire shall provide the City Manager or
designee with a hurricane preparedness/evacuation plan,which shall include the
location and proof of ownership and/or control by Concessionaire (either through a
deed,lease or other document satisfactory to the City Manager or designee)of the
aforestated off-site storage facility;both of which shall be referenced in Exhibit
3.10 (Preparedness and Evacuation Plan),incorporated herein by reference and
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 designee,and said restocking shall be completed within four (4)business days.
3.11 Ownership of Equipment.
The Equipment shall be the sole and exclusive property of Concessionaire during
the Term of this Agreement.
SECTION 4.CONCESSION FEES,SPONSORSHIP FEES,PUBLIC BENEFITS AND
CITY CONTRIBUTION.
Concessionaire shall pay to the City Concession Fees equal to the greater of (1)the
Annual Minimum Guarantee payment (MG),in the amount of $380,000.00;or (2)the
annual percentage of gross sales receipts (PG)payment as more particularly described
below:
4.1 Percentage of Gross Sales (PG).
An amount equal to 12%of the total gross sales receipts from the operation of the
Concession Areas,based on Concessionaire's cumulative gross sales receipts
totaling less than $3,000,000.00 during a given Contract Year,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.
An amount equal to 15%of the total gross sales receipts from the operation of the
Concession Areas,based on Concessionaire's cumulative gross sales receipts
equal to or greater than $3,000,000.00 during a given Contract Year,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.
As referenced herein,percentage of gross sales receipts (PG)shall mean "all
income retained or accrued as a result of sales activity,derived by the
Concessionaire under the privileges granted by this Agreement (not including the
sponsorship payments pursuant to the Citi Bike Sponsorship 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
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4.2
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 calculated as a part of any revenues
subject to revenue sharing.
Minimum Guarantee (MG).
Deco Bike,LLC,agrees to pay the City an annual Minimum Guarantee (MG),in
the amount of three hundred eighty thousand ($380,000.00).In the event that the
total PG payments to the City for a given Contract Year was less than the MG,
Concessionaire shall pay to the City the difference between the PG payments
received for the Contract Year and the MG amount,due and payable at the end of
the Contract Year.In the event that the total monthly PG payments received by the
City for a given Contract Year were equal to or more than the MG amount,
Concessionaire shall be deemed to have met its MG obligations and no additional
Concession Fee payments would be due to the City.
4.3 Sponsorship Program with Citibank.
In addition to Concession Fees described in Subsections 4.1 and 4.2,this
Agreement provides for sponsorship payments to the City,pursuant to the
sponsorship agreement between Concessionaire and Citibank ("Citi Bike
Sponsorship Agreement"),which contemplates a bicycle share program with both,
the City of Miami and the City of Miami Beach.The City's portion of the sponsorship
payments is based upon the following categories and percentage of shared
advertising revenues:12.5%naming rights;25%from the Bicycle Sponsorship
Program and 12%from the Kiosk Sponsorship Program,as more particularly
described in the "Citi Bike Sponsorship Agreement and Sponsorship Extension
Chart"for 2025-2029,attached hereto as part of Exhibit 4.3.1/12 of the
sponsorship payments is currently due and payable by Concessionaire to the City
fifteen (15)days following the end of each calendar month during each Contract
Year throughout the Term.The Citi Bike Sponsorship Agreement,incorporated
herein by reference and attached hereto as part of Exhibit 4.3,will expire on
December 31,2029.Any extension of the current Citi Bike Sponsorship Agreement
shall not require separate approval by the City;however,any changes to the material
terms of the Citi Bike Sponsorship Agreement,such as the amount of the
sponsorship payments,or any new sponsorship agreement shall require the prior
written approval of the City Commission.
4.4 Bicycle Basket Advertising Program and Kiosk Advertising Program.In connection
with commercial advertising as described in Section 16.2,which may occur lieu of
the Sponsorship Program with Citibank or simultaneously therewith,if permitted by
Citibank,the City shall receive twenty-five percent (25%)of all gross sales receipts
from the Bicycle Basket Advertising Program and twelve percent (12%)of all gross
sales receipts from the Kiosk Advertising Program.
4.5 Public Benefits/City Contribution.
Deco Bike has established membership plans,as more particularly delineated in
Exhibit 3.8.Additionally,Concessionaire has an ongoing City of Miami Beach
employee rental plan at $99 annually with unlimited 30-minute trips.
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4.6
4.7
4.8
In addition to the established membership plans,Concessionaire agrees to provide
three (3)30-minute free rides per month for Miami Beach residents who are not
current customers of the Program,or one (1)free month for every twelve months of
membership for established customers of the Program ("Monthly Incentive
Program")in order to incentivize use of bicycles as a transportation alternative.
Concessionaire will cover the cost of the Monthly Incentive Program up to the total
amount of $35,000.00 per Contract Year and the City will cover the cost exceeding
$35,000.00 per Contract Year.The City Commission,at its sole and absolute
discretion,may terminate the Monthly Incentive Program.
Payment Remittance.
All payments due to the City hereunder shall be sent to the following address
City of Miami Beach Parking Department
Attention:Administrative Services Manager
1755 Meridian Avenue,2°Floor
Miami Beach,Florida 33139
Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is not paid
on or before the respective date provided for in this Agreement shall be subject
to interest at the rate of eighteen percent (18%)per annum,or the maximum
interest allowable pursuant to Florida law,whichever is less,from the due date of
payment until such time as payment is actually received by the City.In addition,
any payment received after five (5)days of its due date,shall accrue a late charge
of five percent (5%)of the payment amount due.
Sales and Use Tax.
At the Contract Manager's sole option and discretion,any required Florida State
Sales and Use Tax due in connection with any payments due to the City,
shall be paid by Concessionaire directly or added to the payments due to the City
and forwarded to the City as part of said payments.It is the City's intent that it is
to receive all payments due from Concessionaire as net of such Florida State Sales
and Use Tax.
SECTION 5.MAINTENANCE AND 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 the City's Contract Manager,
upon 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
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loss statement pursuant to generally accepted accounting principles.
5.1 Reports of Gross Receipts,Maintenance and Usage
5.1 .1 Within thirty (30)days from the end of each Contract Year throughout the
Term,Concessionaire shall provide the Contract Manager with a detailed
annual report of the gross receipts for the preceding Contract Year.The
report shall reflect the activity on a monthly basis and shall itemize the
total monthly gross revenues and expenses from each Concession Area
in the Program.
5.1.2 Upon the request of the City Manager or Contract Manager,Concessionaire
shall submit a monthly (or at such greater intervals,i.e.quarterly or
annually,as requested by the City)maintenance report reflecting routine
maintenance performed on the Concession Area Improvements,including
any repairs performed on any of the Equipment.
5.1.3 Upon the request of the City Manager or Contract Manager,Concessionaire
shall provide the City with monthly reports regarding the usage of the
bicycles,including the following metrics:number of bicycles,number of trips,
average trip length,membership vs casual trips,top 10 stations with the
highest number of bicycle pick-ups and returns.
5.1 .4 Upon the request of the City Manager or Contract Manager,Concessionaire
shall develop and conduct a user survey to collect data throughout the Term
to document the following metrics:trip purpose,frequency of use,alternative
mode choice,and other data points as applicable.The survey shall be
distributed by the Concessionaire to users via a mobile application and user
emails.
SECITON 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 Contract Manager,as
deemed necessary by them.Concessionaire shall maintain all such records at its principal
office,currently located at 41 NE 17 Terrace,Miami,Florida 33132.At the request of the
City,all such records shall be relocated,at Concessionaire's expense,to a location in
Miami Beach,within ten (10)days'notice (written or verbal).
The City Manager or Contract Manager shall be entitled to audit Concessionaire's
records pertaining to its operations,as often as he deems 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.
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
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an independent CPA firm.
It is Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance under the Agreement.Within thirty (30)days
after the end of each Contract Year,upon written notice from the City Manager,
Concessionaire shall meet with the City Manager or Contract Manager 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 and
assessments of any kind levied or assessed upon a Concession Area or the
Concession Areas,and/or on Concessionaire by reason of this Agreement,or
by reason of Concessionaire's business and/or operations within a Concession
Area or Areas.Concessionaire will have the right,at its own expense,to contest
the amount or validity,in whole or in part,of any tax by appropriate proceedings
diligently conducted in good faith.Concessionaire may refrain from paying a tax
to the extent it is contesting the imposition of same in a manner that is in
accordance with law.However,if,as a result of such contest,additional
delinquency charges become due,Concessionaire shall be responsible for such
delinquency charges,in addition to payment of the contested tax,if so ordered.
Concessionaire shall also be solely responsible (at its sole cost and expense)for
obtaining and maintaining current any applicable licenses or permits,as required
for the operations contemplated in this Agreement including,without limitation,any
occupational licenses required by law for the proposed uses contemplated in
Section 2 and for each Concession Area (if required).
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 or contractors 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 Contract Manager at all times during normal business hours
(8:00 A.M.to 5:00 P.M.)to discuss the management,operation and
maintenance of the Program,and during the hours of 8:00 A.M.and 2:00
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A.M.in the event of an 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 Contract Manager,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 use its best efforts to hire employees and/or contractors
for the Program from among unemployed workers in the City of Miami Beach
workforce.
SECTION 9.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 as of the
Effective Date.
9.1
9.2
Improvements
In addition to the specific procedures set forth in Subsection 3.2 for the design,
fabrication,construction,and installation of the Equipment,Concessionaire shall
also be solely responsible (including cost)and shall pay for the design,
fabrication,construction,and installation of any and all improvements to a
Concession Area or Areas ("Concession Area improvements"),including all site
preparation costs,as defined in Subsection 3.2.1.
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).
9.2.1 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.
9.2.2 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
satisfaction of the City Manager or designee.Concessionaire shall keep a
reasonable stock of materials and Equipment on hand to address the
replacement or repair of Equipment which may be lost,stolen or damaged in
the ordinary course of its operations.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.
9.2.3 All of the aforestated repairs,restorations and replacements shall be in
quality and class equal to or better than the original work (or Equipment)and
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shall be done in good and workmanlike manner.
9.2.4 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.
9.2.5 It shall be Concessionaire's sole obligation to insure that any renovation,
repairs and/or improvements made by Concessionaire to the Concession
Areas comply with all applicable building code and life safety codes of
governmental authorities having jurisdiction.
9.3 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 Concession Area Improvements thereon.
The Concessionaire shall make available all Equipment within a Concession Area
for examination by the City Manager or their authorized representative,upon
reasonable verbal and/or written notice from the City.
9.3.1 Concessionaire agrees,also at its sole cost and expense to pay for all
garbage disposal generated by its operations.
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,defend 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 9.4 shall survive the termination or earlier expiration of this
Agreement.
9.5 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 the City be
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9.4
9.6
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 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,in visible,plain,easy to read/understand language and/or symbols,
the proper procedure(s)for safely docking and locking a bike into the bike docking
station.Similarly,Concessionaire shall utilize a locking system that clearly
indicates to users when a bicycle has been fully and properly locked.It is highly
recommended that 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 the City nor Concessionaire shall be
liable or otherw ise responsible to users if the bicycle is stolen while in use (including
bicycles that are not properly locked at the conclusion of use).
Inspection.
The Concessionaire agrees that any Concession Area (including,without
limitation,any Concession Area Improvement thereon)may be inspected at
any time by the City Manager or Contract Manager,or by any other municipal,
County,State officer,or officers of any other agency(ies)having responsibility
and/or jurisdiction for inspections of such operations.The Concessionaire
hereby waives all claims against the City for compensation for loss or damage
sustained by reason of any interference with the concession operation as a
result of inspection by any public agency(ies)or officials,(including,without
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 10.INSURANCE.
10.1 Concessionaire shall maintain,at its sole cost and expense,the following types of
insurance coverage at all times throughout the Term of this Agreement.
10.1.1 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.
10.1.2 Worker's Compensation Insurance shall be required in accordance with the
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laws of the State of Florida.
10 1.3 Automobile Insurance shall be provided covering all owned,leased,and
hired vehicles and non-ownership liability for not less than the following
limits:
A.
B.
C.
Bodily Injury
Bodily Injury
Property Damage
$1,000,000 per person
$1,000,000 per accident
$1,000,000 per accident
10.1.4 Comprehensive crime insurance including employee theft,premise,transit
and depositor's forgery coverage with limits as to any given occurrence of
$1,000,000.The City shall be used as a loss payee under this coverage.
10.1.5 Umbrella liability insurance with an annual aggregate limit of not less than
$1,000,000.The City shall be used as a loss payee under this coverage.
10.2 Construction Insurance.
The City shall not be liable for any claims,losses or damages suffered by third
parties arising from Concessionaire's,or its officers',agents',employees'or
contractors'fabrication,construction,and installation of the Concession Area
Improvements.
10.2.1 Concessionaire shall maintain,or require that its contractor(s)maintain,the
following insurance coverages in connection with the installation of the
Concession Area Improvements:
A.Worker's Compensation insurance in at least the minimum
amounts required by Florida law;and
B.Commercial General Liability on a comprehensive basis,including
Contractual Liability,Products/Completed Operations,in an
amount not less than $1,000,000 combined single limit per
occurrence for bodily injury and property damage.The City of
Miami Beach,Florida shall be included as an additional insured
with respect to this coverage.
10.3 The liability policies affording the coverages described in the above subsections
shall be endorsed to cover the City and its employees,agents,directors and
officers as additional insureds.
10.4 Concessionaire shall deliver certificates of insurance to the City's Contract
Manager and renewal policies shall be obtained,and certificates delivered to the
Contract Manager,at least fifteen (15)days prior to expiration.The certificates of
insurance shall state that the issuing company shall provide thirty (30)days'prior
written notice to the certificate holder should any of the policies be cancelled prior to
the expiration date.
10.5 All of Concessionaire's certificates,above,shall contain endorsements providing
that written notice shall be given to the City at least thirty (30)days prior to
termination,cancellation or reduction in coverage in the policy.The insurance must
be furnished by insurance companies authorized to do business in the State of
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Florida and approved by the City's Risk Manager.Original certificates of insurance
for the above coverage must be submitted to the City's Risk Manager.These
certificates will be kept on file in the office of the Risk Manager,City Hall,1700
Convention Center Drive,3rd Floor,Miami Beach,Florida 33139.The
Concessionaire shall also be solely responsible for obtaining,submitting,and
maintaining current and in full force,all insurance for its subcontractors.
10.6 All insurance policies must be issued by companies authorized to do business under
the laws of the State of Florida.The companies must be rated no less than "A-"as
to management and not less than "Class VI"as to strength by the latest edition of
Best's Insurance Guide,published by A.M.Best Company,Oldwick,New Jersey,
or its equivalent,subject to the approval of the City's Risk Manager.
10.7 Compliance with the insurance requirements in this section,shall not relieve the
Concessionaire of the liabilities and obligations under this section or under any other
portion of this Agreement,and the City shall have the right to obtain from the
Concessionaire specimen copies of the insurance policies in the event that
submitted certificates of insurance are inadequate to ascertain compliance with
required coverage.The Concessionaire represents and warrants that any insurance
protection required by this Agreement or otherwise provided by its contractors and
subcontractors shall in no way limit the responsibility to indemnify,keep and save
harmless and defend the City or its officers,employees,contractors,consultants,
agents,and instrumentalities as herein provided.
10.8 Waiver of Subrogation.
The terms of insurance policies referred to in the above subsections shall
preclude subrogation claims against Concessionaire,the City and their respective
officers,employees,contractors,agents,and servants.
SECTION 11.INDEMNITY.
11.1 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,members,employees,contractors,agents,
and servants from and against any and all actions (whether at law or inequity),
claims,liabilities,losses,and expenses,including,but not limited to,attorneys'
fees and costs,for personal,economic or bodily injury,wrongful death,loss of or
damage to property,which may arise or be alleged to have arisen from:(1)wholly
or in part from the negligent acts,errors,omissions or other misconduct of
Concessionaire,its officers,director,members,employees,agents,contractors,
subcontractors,or any other person or entity acting under Concessionaire's
control or supervision;(2)Concessionaire's breach of the terms of this Agreement
or its representations and warranties herein;(3)the operation of the Program;or
(4)the use of the Concession Area Improvements or the Equipment.To that extent,
Concessionaire shall pay all such claims and losses and shall pay all such costs
and judgments which may issue from any lawsuit arising from such claims and
losses,and shall pay all costs and attorneys'fees expended by the City in the
defense of such claims and losses,including appeals.
11.2 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
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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 for which the City,its officials,directors,employees,
contractors,agents,and servants are alleged to be liable.
11.3 Subsections 11.1 and 11.2 shall survive the termination or expiration of this
Agreement.
SECTION 12.FORCE MAJEURE.
12.1 A "Force Majeure"event is an event that (i)in fact causes a delay in the
performance of the Concessionaire or the City's obligations under the Agreement,
and (ii)is beyond the reasonable control of such party unable to perform the
obligation,and (iii)is not due to an intentional act,error,omission,or negligence
of such party,and (iv)could not have reasonably been foreseen and prepared for
by such party at any time prior to the occurrence of the event.Subject to the
foregoing criteria,Force Majeure may include events such as war,civil
insurrection,riot,fires,epidemics,pandemics,terrorism,sabotage,explosions,
embargo restrictions,quarantine restrictions,inability to secure materials and
Equipment from any of the available manufacturers,transportation accidents,
strikes,strong hurricanes or tornadoes,earthquakes,or other acts of God which
prevent performance.Force Majeure shall not include technological impossibility,
inclement weather,or failure to secure any of the required permits pursuant to the
Agreement.
12.2 If the City or Concessionaire's performance of its contractual obligations is
prevented or delayed by an event believed by to be Force Majeure,such party
shall immediately,upon learning of the occurrence of the event or of the
commencement of any such delay,but in any case within fifteen (15)business
days thereof,provide notice:(i)of the occurrence of event of Force Majeure,(ii)of
the nature of the event and the cause thereof,(iii)of the anticipated impact on the
Agreement,(iv)of the anticipated period of the delay,and (v)of what course of
action such party plans to take in order to mitigate the detrimental effects of the
event.The timely delivery of the notice of the occurrence of a Force Majeure event
is a condition precedent to allowance of any relief pursuant to this section;
however,receipt of such notice shall not constitute acceptance that the event
claimed to be a Force Majeure event is in fact Force Majeure,and the burden of
proof of the occurrence of a Force Majeure event shall be on the requesting party.
12.3 No party hereto shall be liable for its failure to carry out its obligations under the
Agreement during a period when such party is rendered unable,in whole or in part,
by Force Majeure to carry out such obligations.The suspension of any of the
obligations under this Agreement due to a Force Majeure event shall be of no
greater scope and no longer duration than is required.The party shall use its
reasonable best efforts to continue to perform its obligations hereunder to the
extent such obligations are not affected or are only partially affected by the Force
Majeure event,and to correct or cure the event or condition excusing performance
and otherwise to remedy its inability to perform to the extent its inability to perform
is the direct result of the Force Majeure event with all reasonable dispatch.
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12.4 Obligations pursuant to the Agreement that arose before the occurrence of a Force
Majeure event,causing the suspension of performance,shall not be excused as a
result of such occurrence unless such occurrence makes such performance not
reasonably possible.The obligation to pay money in a timely manner for
obligations and liabilities which matured prior to the occurrence of a Force Majeure
event shall not be subject to the Force Majeure provisions.
12.5 Notwithstanding any other provision to the contrary herein,in the event of a Force
Majeure occurrence,the City may,at the sole discretion of the City Manager,
suspend the City's payment obligations under the Agreement,and may take such
action without regard to the notice requirements herein.Additionally,in the event
that an event of Force Majeure delays a party's performance under the Agreement
for a time period greater than one hundred eighty (180)days or causes fifty
percent (50%)or more of the Concession Areas to be usable,either party may
terminate the Agreement on a given date,by giving written notice to the other of
such termination.If the Agreement is terminated pursuant to this section,the City
shall be paid for any Services satisfactorily performed up to the date of
termination;following which the City shall be discharged from any and all liabilities,
duties,and terms arising out of,or by virtue of,this Agreement.In no event will
any condition of Force Majeure extend this Agreement beyond its stated term.
12.6 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 event,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.
SECTION 13.DEFAULT AND TERMINATION.
Subsections 13.1 through 13.6 shall constitute events of default under this Agreement.
An event of default by Concessionaire shall entitle the 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 13.5 and Section 14.
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.
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13.2 Default in Payment.
If any payment and accumulated penalties are not received within ten (10)days
after the payment due date,and such failure continues five (5)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 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 may be available to it for breach of contract.
In the event that a default is not 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 The failure of any Equipment to be operational for a period of time exceeding
fifteen (15)continuous calendar days,shall constitute a default under this
Agreement.
13.5 City's Remedies for Concessionaire's Default.
If any of the events of default,as set forth in this section,shall occur,the City may,
after expiration·of the cure periods,as provided above,at its sole option and
discretion,institute such proceedings as in its opinion are necessary to cure such
defaults and to compensate City for damages resulting from such defaults,
including but not limited to the right to give to Concessionaire a notice of
termination of this Agreement.If such notice is given,the term of this Agreement
shall terminate upon the date specified in such notice from City to Concessionaire.
On the date so specified,Concessionaire shall then quit and surrender the
Concession Area(s)to City pursuant to the provisions of Subsection 13.7.Upon
the termination of this Agreement,all rights and interest of Concessionaire in and
to the Concession Area(s)and to this Agreement,and every part thereof,shall
cease and terminate and City may,in addition to any other rights and remedies it
may have,retain all sums paid to it by Concessionaire under this Agreement,
including but not limited to,the Performance Bond in Section 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.
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13.6 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.
13.7 Surrender of Concession Areas /Removal by Concessionaire of Concession Area
Improvements.
Upon expiration,or earlier termination of this Agreement,Concessionaire shall
surrender the Concession Areas in the same condition as the Concession Areas
were prior to Concessionaire installing the Concession Area Improvements.
The City shall grant Concessionaire the right,upon the termination or earlier
expiration of this Agreement,to enter upon the City Property locations,pursuant to
an agreed upon schedule,executed by the parties,for the removal of the
Concession Area Improvements contained therein ("Removal Schedule").
Concessionaire shall,at its sole expense and at no charge to the City,remove
all Concession Area Improvements from the Concession Areas,(as well as
any other permanent or fixed improvements installed by Concessionaire):(1)no
later than thirty (30)days after the conclusion of the Term,(or from the date of
other termination of this Agreement),or (2)the scheduled removal date as set forth
in the Removal Schedule agreed upon by the parties for each City Property
location,whichever is later,unless a longer time period is agreed to,in writing,by
the City Manager.Concessionaire shall coordinate the removal of the
Concession Area Improvements with the City and shall also,in conjunction with
such removal,at its sole cost and expense,restore the City Property to its
original (or better)condition prior to the date in which Concessionaire
installed the Concession Area Improvements,including repairing any
damage caused from such removal (the removal of the Concession Area
Improvements and restoration of the Concession Areas shall be collectively
referred to herein as the "removal process").Concessionaire shall perform the
removal process in such a way as to minimize interference with the operation of
the City Property.
Concessionaire's obligation to observe or perform this covenant shall survive the
expiration or other termination of this Agreement.Continued occupancy of any
Concession Areas after termination or expiration of the Agreement (unless
otherwise agreed to pursuant to the signed Removal Schedule)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 Concession Area as liquidated damages for such trespass and holding over.
13.8 Substitute Performance.
In the event that the Concessionaire fails to properly perform the removal of any
Concession Area Improvements 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.
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Concessionaire shall be responsible for paying all of said costs.
13.9 (Intentionally Omitted)
SECTION 14.PERFORMANCE BOND OR ALTERNATE SECURITY.
Concessionaire shall,within thirty (30)days from Effective Date,furnish to the City Manager
or Contract Manager 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 Contract Manager,in his
sole discretion.The form of the Performance Bond or alternate security shall be approved
by the City's Chief Financial Officer.In the event that a Certificate of Deposit is approved,it
shall be a 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
Contract Manager,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 Commission,in its sole
discretion.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 Commission,the assignee
shall agree to be bound by all the covenants of this Agreement required of Concessionaire.
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 of Miami Beach trademark property,brand,logo and/or reputation,shall
belong exclusively to the City.Concessionaire shall be specifically prohibited from
entering into,or otherw ise 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.
It is further acknowledged that the name,likeness,equipment,concepts,logos,
designs and other intellectual property rights of Concessionaire 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 Concessionaire 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.
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16.2 Advertisements.
16.2.1 Consistent with the approval for advertisement and sponsorship under
Concessionaire's First Concession Agreement pursuant to Resolution No.
2012-27975,the City acknowledges that Concessionaire may display limited
commercial advertising material through the sale by Concessionaire of
sponsorship branding or advertisements placed upon bicycle baskets in the
Program (the "Bicycle Basket Advertising Program")or upon up to forty (40)
of Concessionaire's bicycle rental kiosks ("Advertising Kiosks")(the "Kiosk
Advertising Program"),as more particularly described in Exhibit 16.2,to be
placed along commercial (not residential)corridors,at the Concession Area
locations identified in Exhibit 16.2,subject to Concessionaire securing all
applicable permitting requirements and design reviews.The City Manager,
at its sole discretion,reserves the right to change the location of any
Advertising Kiosk to a different existing kiosk within a commercial corridor.
All sponsors and sponsorship agreements involving the Bicycle Basket
Advertising Program and the Kiosk Advertising Program shall be subject to
approval by the City Commission,at its sole and absolute discretion.
16.2.2 In Lieu of the Bicycle Basket Advertising Program and the Kiosk Advertising
Program described in Subsection 16.2.1,as of the Effective Date,
Concessionaire has secured,and the City has approved,the Citi Bike
Sponsorship Agreement,a copy of which is attached hereto as Exhibit 4.3.
Notwithstanding the foregoing,in the event that during the term of the Citi
Bike Sponsorship Agreement,Citibank permits use of the Advertising Kiosks
for third party advertising on a non-exclusive basis,those Advertising Kiosks
could be used for commercial advertising,in accordance with the terms and
conditions of this Agreement.
16.2.3 No additional advertisements or sponsorships may be secured or displayed
by Concessionaire without the prior written approval of the City Commission.
16.2.4 Any approved advertisements displayed on bicycles or kiosks 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.
16.2.5 Advertising Standards.All advertisements shall comply with the following
standards:
16.2.5.1 While the City understands the need to maximize advertising
revenue,the City is also interested in maintaining a pleasant and
aesthetic image and ensure the quality-of-life of its residents.The
City Manager,at the City Manager's sole discretion,may request
removal of any advertisement that the City deems unacceptable
including,without limitation,advertisement that is offensive,
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objectionable,inappropriate,or that does not reflect favorably upon
the City,its residents and visitors.
16.2.5.2 Concessionaire is solely responsible for all design,development,
production,redesign,removal,and installation of advertising.
16.2.5.3 Concessionaire shall adhere to generally accepted principles of
advertising in relation to good taste and truth in advertising.No
advertising which is considered objectionable and offensive in its
content or method of presentation shall be displayed.
16.2.5.4 Concessionaire shall neither accept for display,install,display nor
maintain any advertisement that falls within one or more of the
following categories;
A.contains the words "STOP","LOOK","DRIVE IN","DANGER"
or any other word,symbol,or displays in a manner that is
designed to distract vehicular traffic;
B.false or misleading;
C.material that is immoral,lascivious,or obscene as defined in
Section 847.001,Florida Statutes;
D.no advertising shall be for businesses engaged in any activity
that requires the exclusion of minors pursuant to Chapter 847,
Florida Statutes;
E.promotes unlawful or illegal goods,services or activities;
F.tobacco or tobacco related products including electronic
cigarettes;
G.firearms;
H.sexual services,programs or products;
I.political candidates or political issues,campaigns;
J.detrimental to the operation or goals of the City;
K.competitive products included in any Agreement with the City
relating to a cityw ide exclusive sponsorship agreement,as
notified in writing to Concessionaire.As of the Effective Date
of this Agreement the City has executed an exclusive pouring
rights agreement with PepsiCo for all non-alcoholic beverage
categories,including but not limited soda,water,juice,iced
tea,isotonics,and an exclusive pouring rights agreement with
Red Bull for the energy drink beverage category,as such,
advertising of any competing products is prohibited;
L.Advertising related to marijuana or medical marijuana to the
extent prohibited by State or federal law,including,without
limitation,Section 381.986(8)(h)of the Florida Statutes;
M.contains images or information that demeans an individual or
group of individuals on account of race,color,religion,national
origin,ancestry,gender,age,disability or sexual orientation;
and
N.any such additional prohibited category of advertising or
additional requirement for the installation and display of the
advertisements,which may be added at any time by the City
Manager,at the City Manager's sole option and discretion;
provided that the City Manager or designee shall provide
Concessionaire with written notice of such additional category
or requirement.
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16.2.5.5 Advertising of alcoholic beverages,as defined by Section 561.01,
Florida Statutes,shall be permitted only on the Advertising Kiosks
and with the following restrictions:
A.No advertising for alcoholic beverages or legal cannabis shall
be within 250 feet of any type of public or private school,
including pre-schools,elementary schools,middle schools,
high schools,colleges,and universities;
B.No advertising for alcoholic beverages or legal cannabis shall
be within 250 feet of houses of worship,including churches,
synagogues,temples,and mosques;
C.No advertising for alcoholic beverages shall be within 250 feet
of Hospitals or addiction treatment centers;
D.No ad shall be allowed that promotes over consumption or
boisterous/party behaviors;
E.All advertising for alcoholic beverages must include the
disclaimer below as mandated by the Alcoholic Beverage
Labeling Act ("ABLA")of 1988.Government warning
disclaimer must be equal to at least 10%of the size of the ad:
"GOVERNMENT WARNING:(1)According to the Surgeon
General,women should not drink alcoholic beverages during
pregnancy because of the risk of birth defects.(2)
Consumption of alcoholic beverages impairs your ability to
drive a car or operate machinery,and may cause health
problems.
16.2.5.6 Advertising Removal.Any prohibited or unacceptable material
displayed or placed shall be removed (or covered,so as to not
display the advertising material in question)within 48 hours by
Concessionaire upon receipt of written notice from the City
Manager or City Manager's designee.In the event
Concessionaire fails to remove or cover any prohibited or
unacceptable material within forty-eight hours of receipt of written
notice from the City,the City may,at its sole option and discretion,
remove or cover the prohibited material and charge Concessionaire
for the actual cost thereof,or terminate this Agreement for cause,
without further notice to Concessionaire.The City shall not be liable
for any damages in connection therewith.
16.3 At the sole option and discretion of the City Manager,the City may place a link
to any website maintained by Concessionaire,including for users to reach
Concessionaire and/or learn more information about the Program.Concessionaire
agrees to place a link for the City of Miami Beach on its website to inform
users of the City Property locations under the Program.At the City's request,
Concessionaire shall remove the link or any reference to the Miami Beach
Program or City Property locations.Both the City and Concessionaire agree to
make good faith efforts to promote the use of Equipment within the City of Miami
Beach under the terms of this Agreement.Any placement of advertisement or
other form of promotion of the Program,including City Property locations which
27
are the subject of the Program,shall be subject to the prior written approval of the
City Manager.
SECTION 1Z.NO IMPROPER USE.
The Concessionaire will not use,nor suffer or permit any person to use in any manner
whatsoever,any Concession Areas or Concession Area Improvements 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 Contract Manager 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 Contract Manager.
SECTION 18.NOTICES,
Any notice required to be given or otherwise given pursuant to this Contract shall be in
writing and shall be hand delivered,mailed by certified mail,return receipt requested or
sent recognized overnight courier service as follows:
If to CONCESSIONAIRE:
With copy to:
If to the CITY:
With copy to:
Deco Bike,LLC.
41 NE 17 Terrace
Miami,Florida 33132
Attn:Ricardo Pierdant
E-mail:ricardopierdant@aol.com
E-mail:management@decobike.com
City of Miami Beach
Attention:Parking Director
1755 Meridian Avenue,2"Floor
Miami Beach,Florida 33139
City of Miami Beach
Attention:City Manager
1700 Convention Center Drive
Miami Beach,Florida 33139
Notwithstanding the foregoing,the City expressly authorizes Deco Bike,LLC.,to notice
its designated Contract Manager,with a mailing address of City of Miami Beach Parking
Department,1755 Meridian Avenue,2°Floor,Miami Beach,Florida 33139 with regard
to all matters pertinent to this Agreement,except with respect to any alleged defaults,
28
which will require notice to the parties set forth in Section 18.
SECTION 19.LAWS.
19.1 Compliance.
Concessionaire shall comply with all applicable City,County,State,and Federal
ordinances,statutes,rules and regulations,including but not limited to all
applicable environmental City,County,State,and Federal ordinances,statutes,
rules and regulations.
19.2 Governing Law.
Governing Law.This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.Any civil action arising in
any way from this Agreement or the activities of the parties under this Agreement
shall be brought only in a court of competent jurisdiction located in Miami-Dade
County,Florida.
19.3 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.
19.4 No Discrimination.
Concessionaire agrees that there shall be no discrimination as to as to race,
color,national origin,religion,sex,intersexuality,sexual orientation,gender
identity,marital and familial status,or age,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 Concession Areas and
improvements and Equipment thereon.
Additionally,Concessionaire shall comply fully with the City of Miami Beach Human
Rights Ordinance,codified in Chapter 62 of the City Code,as may be amended
from time to time,prohibiting discrimination in employment (including independent
contractors),housing,public accommodations,public services,and in connection
with its membership or policies because of actual or perceived race,color,national
origin,religion,sex,intersexuality,gender identity,sexual orientation,marital and
familial status,age,disability,ancestry,height,weight,hair texture and/or hairstyle,
domestic partner status,labor organization membership,familial situation,or
political affiliation.
SECTION 20.MISCELLANEOUS.
20.1 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.
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20.2 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 Contract Manager.
20.3 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.
20.4 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.
20.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
20.6 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.
20.7 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.
20.8 Right of Entry.
The City,at the direction of the City Manager,shall at all times during hours of
operation,have the right to enter into and upon any and all parts of the
Concession Area(s)for the purposes of examining the same for any reason
relating to the obligations of parties to this Agreement.
20.9 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.
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20.10 Procedure for Approvals and/or Consents.
In each instance in which the approval or consent of the City Manager or
Contract Manager is allowed or required in this Agreement,it is acknowledged
that such authority has been expressly provided herein to the City Manager or
Contract Manager by the Mayor and City Commission of the City.In each
instance in which the approval or consent of the City Manager or Contract
Manager 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 Contract Manager 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 Contract
Manager'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.This subsection shall not apply to
approvals required herein by the Mayor and City Commission.
20.11 No Waiver.
It is mutually covenanted and agreed by and between the parties hereto that the
failure of the City to insist upon the strict performance of any of the conditions,
covenants,terms or provisions of this Agreement,or to exercise any option herein
conferred,will not be considered or construed as a waiver or relinquishment
for the future of any such conditions,covenants,terms,provisions or options
but the same shall continue and remain in full force and effect.A waiver of
any term expressed herein shall not be implied by any neglect of the City to
declare a forfeiture on account of the violation of such term if such violation by
continued or repeated subsequently and any express waiver shall not affect
any term other than the one specified in such waiver and that one only for the time
and in the manner specifically stated.
The receipt of any sum paid by Concessionaire to the City after breach of any
condition,covenant,term or provision herein contained shall not be deemed
a waiver of such breach,but shall be taken,considered and construed as
payment for use and occupation,and not as rent,unless such breach be
expressly waived in writing by the City.
20.12 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity,including,
but not limited to sub concessionaires,other than the parties hereto and their
respective successors and permitted assigns,any rights or remedies by reason of
this Agreement.
SECTIO N 21.LIM IT ATI ON O E LIA BI LI TY,
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
31
willingness to enter into this Agreement with Concessionaire's re cove ry from
the City for any damage action for breach of contract to be limited
to a maximum amount of One Hundred Thousand ($100,000.00)Dollars.
Accordingly,and notwithstanding any other term or condition of this
Agreement,Concessionaire hereby agrees that the City shall not be liable
to Concessionaire for damages in an amount in excess of One H u n d red Thousand
($100,000.00)Dollars,for any action for breach of contract arising out of the
performance or on-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 22.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 23.CONFLICT OF INTEREST.
Concessionaire agrees to adhere to and be governed by the Miami-Dade County Ethics
and Conflict of Interest laws,as same may be amended from time to time,and by the City
of Miami Beach Charter and Code,as same may be amended from time to time,in
connection with the performance of the Services.
Concessionaire covenants that it presently has no interest and shall not acquire any
interest,direct or indirectly,which would conflict in any manner or degree with the
performance of the work and services contemplated in this Agreement.The
Concessionaire further covenants that in the performance of this Agreement,no person
having any such interest shall knowingly be employed by the Concessionaire.
SECTION 24.FLORIDA PUBLIC RECORDS LAW
24.1 Concessionaire shall comply with Florida Public Records law under Chapter 119,
Florida Statutes,as may be amended from time to time.
24.2 The term "public records"shall have the meaning set forth in Section 119.011 (12),
which means all documents,papers,letters,maps,books,tapes,photographs,films,
sound recordings,data processing software,or other material,regardless of the
physical form,characteristics,or means of transmission,made or received pursuant
to law or ordinance or in connection with the transaction of official business of the
City.
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24.3 Pursuant to Section 119.0701 of the Florida Statutes,if the Concessionaire meets
the definition of "Contractor"as defined in Section 119.0701 (1 )(a),the
Concessionaire shall:
A.Keep and maintain public records required by the City to perform the service;
B.Upon request from the City's custodian of public records,provide the City
with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost
provided in Chapter 119,Florida Statutes or as otherwise provided by law;
C.Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed,except as
authorized by law,for the duration of the contract term and following
completion of the Agreement if the Concessionaire does not transfer the
records to the City;
D.Upon completion of the Agreement,transfer,at no cost to the City,all public
records in possession of the Concessionaire or keep and maintain public
records required by the City to perform the service.If the Concessionaire
transfers all public records to the City upon completion of the Agreement,the
Concessionaire shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements.If the
Concessionaire keeps and maintains public records upon completion of the
Agreement,the Concessionaire shall meet all applicable requirements for
retaining public records.All records stored electronically must be provided to
the City,upon request from the City's custodian of public records,in a format
that is compatible with the information technology systems of the City.
24.4 Request for Records;Noncompliance.
A.A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City.If the City does not possess the
requested records,the City shall immediately notify the Concessionaire of
the request,and the Concessionaire must provide the records to the City or
allow the records to be inspected or copied within a reasonable time.
B.Concessionaire's failure to comply with the City's request for records shall
constitute a breach of this Agreement,and the City,at its sole discretion,
may:(1)unilaterally terminate the Agreement;(2)avail itself of the remedies
set forth under the Agreement;and/or (3)avail itself of any available
remedies at law or in equity.
C.A Concessionaire who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s.119.10.
24.5 Civil Action.
A.If a civil action is filed against a Concessionaire to compel production of
public records relating to the City's contract for services,the court shall
assess and award against the Concessionaire the reasonable costs of
enforcement,including reasonable attorneys'fees,if:
1.The court determines that the Concessionaire unlawfully refused to
comply with the public records request within a reasonable time;and
2.At least 8 business days before filing the action,the plaintiff provided
written notice of the public records request,including a statement that
the Concessionaire has not complied with the request,to the City and
to the Concessionaire.
B.A notice complies with subparagraph (A)(2)if it is sent to the City's custodian
of public records and to the Concessionaire at the Concessionaire's address
listed on its contract with the City or to the Concessionaire's registered agent.
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Such notices must be sent by common carrier delivery service or by
registered,Global Express Guaranteed,or certified mail,with postage or
shipping paid by the sender and with evidence of delivery,which may be in
an electronic format.
C.A Concessionaire who complies with a public records request within 8
business days after the notice is sent is not liable for the reasonable costs of
enforcement.
24.6 IF THE CONCESSIONAIRE HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119,FLORIDA STATUTES,
OR AS TO THE CONCESSIONAIRE'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION:RAFAEL E.GRANADO,CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH,FLORIDA 33139
E-MAIL:RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE:305-673-7411
24.7 Public Records Exception.As of the Effective Date of this Agreement,
Concessionaire seeks to invoke the protections of Chapter 119,Florida
Statutes and has requested that the Sponsorship Extension Chart for the years
2025-2029,entitled "Citi Bike Sponsorship Agreement and Sponsorship
Extension Chart"be withheld from public disclosure pursuant to Chapter 119,
Florida Statutes and Florida Statutes Sections §815.045,$812.081(1)0)
§815.04(3),§288.075,and §688.002.Concessionaire warrants and
represents that this information is nonpublic,confidential commercial,
financial,and trade secret information (collectively,"Trade Secret
Information"),which is for use,or is used,in the operation of Concessionaire's
business,the disclosure of which would cause substantial harm to
Concessionaire's competitive position.Florida Statutes Sections §815.045
and §812.081 (1 )(c),permits an agency to withhold trade secrets,including
confidential commercial and financial information,from disclosure if such
information provides the business an advantage,or an opportunity to obtain
an advantage,over those who do not know or use it.To that end,
Concessionaire has conspicuously marked the Citi Bike Sponsorship
Agreement and Sponsorship Extension Chart as "Trade Secret Information"
and will similarly mark any future any trade secret information which
Concessionaire provides to the City as Trade Secret Information prior to the
submission of such information to the City.If the City receives a request for
information which Concessionaire has marked as being "Trade Secret
Information",the City will notify Concessionaire of its receipt of the request
and may request that Concessionaire execute a Trade Secret Affidavit in the
form acceptable to the City,setting forth the basis for the exemption,and at
34
that time,Concessionaire may provide a redacted document.If the requester
of the public record objects to the exemption,the City will promptly provide
Concessionaire with notice of the objection,so as to provide Concessionaire
with an opportunity to resolve the objection or file an action with a court of
competent jurisdiction within thirty (30)calendar days,seeking an order
barring public disclosure of the document.If Concessionaire fails to file a
lawsuit within such time period,the City shall produce the public records
requested in accordance with Florida law.Concessionaire agrees to
indemnify,defend and hold harmless the City with respect to all expenses,
including any court costs and attorney's fees,which may be incurred by the
City in connection with any administrative or court processing,including any
appellate action,arising out of any public records request relating to any
information asserted to be Trade Secret Information by Concessionaire.
Notwithstanding any other provision contained in this Agreement,this
Agreement,including its terms,and any other records that the City keeps in
connection with this Agreement,as part of its transaction of official business,
shall not be considered Trade Secret Information.
SECTION 25.INSPECTOR GENERAL AUDIT RIGHTS.
25.1 Pursuant to Section 2-256 of the Code of the City of Miami Beach,the City has
established the Office of the Inspector General which may,on a random basis,
perform reviews,audits,inspections and investigations on all City contracts,
throughout the duration of said contracts.This random audit is separate and distinct
from any other audit performed by or on behalf of the City.
25.2 The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past,present and proposed City programs,accounts,records,
contracts and transactions.In addition,the Inspector General has the power to
subpoena witnesses,administer oaths,require the production of witnesses and
monitor City projects and programs.Monitoring of an existing City project or program
may include a report concerning whether the project is on time,within budget and in
conformance with the contract documents and applicable law.The Inspector
General shall have the power to audit,investigate,monitor,oversee,inspect and
review operations,activities,performance and procurement process including but
not limited to project design,bid specifications,(bid/proposal)submittals,activities
of the Concessionaire,its officers,agents and employees,lobbyists,City staff and
elected officials to ensure compliance with the contract documents and to detect
fraud and corruption.Pursuant to Section 2-378 of the City Code,the City is
allocating a percentage of its overall annual contract expenditures to fund the
activities and operations of the Office of Inspector General.
25.3 Upon ten (10)days written notice to the Concessionaire,the Concessionaire shall
make all requested records and documents available to the Inspector General for
inspection and copying.The Inspector General is empowered to retain the services
of independent private sector auditors to audit,investigate,monitor,oversee,inspect
and review operations activities,performance and procurement process including
but not limited to project design,bid specifications,(bid/proposal)submittals,
35
activities of the Concessionaire,its officers,agents and employees,lobbyists,City
staff and elected officials to ensure compliance with the contract documents and to
detect fraud and corruption.
25.4 The Inspector General shall have the right to inspect and copy all documents and
records in the Concessionaire's possession,custody or control which in the
Inspector General's sole judgment,pertain to performance of the contract,including,
but not limited to original estimate files,change order estimate files,worksheets,
proposals and agreements from and with successful subcontractors and suppliers,
all project-related correspondence,memoranda,instructions,financial documents,
construction documents,(bid/proposal)and contract documents,back-change
documents,all documents and records which involve cash,trade or volume
discounts,insurance proceeds,rebates,or dividends received,payroll and
personnel records and supporting documentation for the aforesaid documents and
records.
25.5 The Concessionaire shall make available at its office at all reasonable times the
records,materials,and other evidence regarding the acquisition (bid preparation)
and performance of this Agreement,for examination,audit,or reproduction,until
three (3)years after final payment under this Agreement or for any longer period
required by statute or by other clauses of this Agreement.In addition:
A.If this Agreement is completely or partially terminated,the Concessionaire
shall make available records relating to the work terminated until three (3)
years after any resulting final termination settlement;and
B.The Concessionaire shall make available records relating to appeals or to
litigation or the settlement of claims arising under or relating to this
Agreement until such appeals,litigation,or claims are finally resolved.
25.6 The provisions in this section shall apply to the Concessionaire,its officers,agents,
employees,subcontractors and suppliers.The Concessionaire shall incorporate the
provisions in this section in all subcontracts and all other agreements executed by
the Concessionaire in connection with the performance of this Agreement.
25.7 Nothing in this section shall impair any independent right to the City to conduct audits
or investigative activities.The provisions of this section are neither intended nor shall
they be construed to impose any liability on the City by the Concessionaire or third
parties.
SECTION 26.E-VERIFY.
26.1 To the extent that Concessionaire provides labor,supplies,or services under this
Agreement,Concessionaire shall comply with Section 448.095,Florida Statutes,
"Employment Eligibility"("E-Verify Statute"),as may be amended from time to
time.Pursuant to the E-Verify Statute,commencing on January 1,2021,
Concessionaire shall register with and use the E-Verify system to verify the work
authorization status of all newly hired employees during the Term of the
Agreement.Additionally,Concessionaire shall expressly require any subcontractor
performing work or providing services pursuant to the Agreement to likewise utilize
the U.S.Department of Homeland Security's E-Verify system to verify the
employment eligibility of all new employees hired by the subcontractor during the
36
contract Term.If Concessionaire enters into a contract with an approved
subcontractor,the subcontractor must provide the Concessionaire with an affidavit
stating that the subcontractor does not employ,contract with,or subcontract with an
unauthorized alien.Concessionaire shall maintain a copy of such affidavit for the
duration of the subcontract or such other extended period as may be required under
this Agreement.
26.2 TERMINATION RIGHTS.
A.If the City has a good faith belief that Concessionaire has knowingly violated
Section 448.09(1),Florida Statutes,the City shall terminate this Agreement
with Concessionaire for cause,and the City shall thereafter have or owe no
further obligation or liability to Concessionaire.
8.If the City has a good faith belief that a subcontractor has knowingly violated
the foregoing Subsection 26.1,but the Concessionaire otherwise complied
with such subsection,the City will promptly notify the Concessionaire and
order the Concessionaire to immediately terminate the contract with the
subcontractor.Concessionaire's failure to terminate a subcontractor shall
be an event of default under this Agreement,entitling City to terminate this
Agreement for cause.
C.A contract terminated under the foregoing Subsection 26.2(A)or 26.2(B)is
not in breach of contract and may not be considered as such.
D.The City or Concessionaire or a subcontractor may file an action with the
Circuit or County Court to challenge a termination under the foregoing
Subsection 26.2(A)or 26.2(B)no later than 20 calendar days after the date
on which the contract was terminated.
E.If the City terminates the Agreement with Concessionaire under the
foregoing Subsection 26.2(A),Concessionaire may not be awarded a public
contract for at least 1 year after the date of termination of this Agreement.
F.Concessionaire is liable for any additional costs incurred by the City as a
result of the termination of this Agreement under this Section 26.
SECTION 27.CONCESSIONAIRE'S COMPLIANCE WITH ANTI-HUMAN TRAFFICKING
LAWS.
Concessionaire agrees to comply with Section 787.06,Florida Statutes,as may be
amended from time to time,and has executed the Certification of Compliance with Anti-
Human Trafficking Laws,as required by Section 787.06(13),Florida Statutes,a copy of
which is attached hereto as Exhibit 27.
SECTION 28.PROHIBITION ON CONTRACTING WITH A BUSINESS ENGAGING IN A
BOYCOTT.
Concessionaire warrants and represents that it is not currently engaged in,and will not
engage in,a boycott,as defined in Section 2-375 of the City Code.In accordance with
Section 2-375.1 (2)(a)of the City Code,Concessionaire hereby certifies that
Concessionaire is not currently engaged in,and agrees for the duration of the Agreement
to not engage in,a boycott of Israel.
37
SECTION 29.PROHIBITION AGAINST CONTRACTING WITH FOREIGN COUNTRIES
OF CONCERN WHEN AN INDIVIDUAL'S PERSONAL IDENTIFYING INFORMATION
MAY BE ACCESSED.
In connection with the operation of the Program services,Concessionaire hereby agrees to
comply with Section 287.138,Florida Statutes,which states that as of January 1,2024,a
governmental entity may not accept a bid on,a proposal for,or a reply to,or enter into,a
contract with an entity which would grant the entity access to an individual's personal
identifying information (PII)unless the entity provides the governmental entity with an
affidavit signed by an officer or representative of the entity under penalty of perjury attesting
that the entity does not meet any of the criteria in Paragraphs 2(a)-(c)of Section 287.138,
Florida Statutes:(a)the entity is owned by a government of a foreign country of concern;
(b)the government of a foreign country of concern has a controlling interest in the entity;or
(c)the entity is organized under the laws of or has its principal place of business in a foreign
country of concern (each a "Prohibited Entity").A foreign country of concern is defined in
Section 287.138 (1 )(c),Florida Statutes,as may be amended from time to time,as the
People's Republic of China,the Russian Federation,the Islamic Republic of Iran,the
Democratic People's Republic of Korea,the Republic of Cuba,the Venezuelan regime of
Nicolas Maduro,or the Syrian Arab Republic,including any agency of or any other entity of
significant control of such foreign country of concern.Concessionaire warrants and
represents that it does not fall within the definition of a Prohibited Entity,and as such,has
caused an authorized representative of Concessionaire to execute the "Prohibition Against
Contracting with Entities of Foreign Countries of Concern Affidavit",incorporated herein by
reference and attached hereto as Exhibit 29.
REMAINDER OF THIS PAGE LEFT BLANK
38
Docusign Envelope ID:AE698423-CEF 1-4FF0-B6DA-11B8F331CA9A
IN WITNESS WHEREOF,the parties hereto have caused their names to be
signed and their seals to be affixed,all as of the day and year first above written,
indicating their Agreement
Attest:CITY OF MIAM I BEACH,FLORIDA
7lRafaelE.Granado,City Clerk
FEB ',
[)3[,»
,
U.l
Attest:
15-iie o
L.::064 Fl357FA-115405---------
0eco Bike,LLC.
[
Docu~i~ned by:
{oe,
,ti
BONIFACIO DIAZ co o Ricardo Pierdant PRESIDENT
Print Name and Title
n.,1/15/2025 1 10:28 AM PSTEld[d,
Print Name and Title
39
APPROVED AS TOFORM&LANG UAGE
&FOR EXECUTION
@tu.-Qlels
Ci Antonevf4 Doto
Exhibit 2.2
Typical Concession Area Site Plan and Concession Area Site List
I.Concession Area Site Plan
Typical Site Plans as follow:
Ee,ZaN
16-BIKE STATION LAYOUT 38.25
,--·-----------------·--·-·---------------[[x y]sly]:7/.7·7.7..7·.7-7t±t t s t r l•'
.I
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16-BIKE DOUBLE STATION LAYOUT
I I;:.{f t',.,,.,.,I 20.25Iy1 ¥+1tII I0~i ..i ..ii.i ~ci r ipr"r "rt "pr "m "rr......j ;-'.:I t I 1 I
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Note some site plans may differ slightly in the field but generally in the format shown
above.
40
II.Concession Area Site List
Station#City Name SubZone Address
000101 Miami Beach South Beach Inside South Pointe Park
000102 Miami Beach South Beach Entrance to South Pointe Park
000103 Miami Beach South Beach Ocean Dr &1st Street
000105 Miami Beach South Beach 1st Street &Alton Rd
000106 Miami Beach South Beach Ocean Dr &2nd Street
000107 Miami Beach South Beach 2nd Street &Collins Ave
000109 Miami Beach South Beach Michigan Ave &3rd Street
000111 Miami Beach South Beach 4th Street &Alton Rd
000112 Miami Beach South Beach Washington Ave &3rd Street
000114 Miami Beach South Beach Ocean Dr &5th Street
000116 Miami Beach South Beach Ocean Dr &7th Street
000117 Miami Beach South Beach Ocean Dr &9th Street
000118 Miami Beach South Beach Ocean Dr and 10th Street (Art Deco Welcome
Center)
000119 Miami Beach South Beach Ocean Dr and 12th Street
000121 Miami Beach South Beach Ocean Dr at 14th Street
000122 Miami Beach South Beach Ocean Dr &15th Street
000123 Miami Beach South Beach Washington Ave &7th Street
000124 Miami Beach South Beach 7th Street Parking Garage
000126 Miami Beach South Beach Meridian Ave &6th St
000127 Miami Beach South Beach Jefferson Ave &6th Street
000128 Miami Beach South Beach Michigan Ave &5th Street
000129 Miami Beach South Beach Lenox Ave &6th Street
000130 Miami Beach South Beach 800 West Ave
000132 Miami Beach South Beach 9th Street &Lenox Ave
000133 Miami Beach South Beach 9th Street &Meridian Ave
000134 Miami Beach South Beach 8th Street &Jefferson Ave
000136 Miami Beach South Beach 9th Street &Washington Ave
000138 Miami Beach South Beach 11th Street &Washington Ave
000139 Miami Beach South Beach West Ave &10th Street (Whole Foods)
000141 Miami Beach South Beach Jefferson Ave &11th Street (Flamingo Park)
000142 Miami Beach South Beach Alton Rd at 11th Street (Flamingo Park)
000143 Miami Beach South Beach 12th Street &West Ave
000144 Miami Beach South Beach Meridian Ave &13th Street (Flamingo Park)
000145 Miami Beach South Beach 14th &Alton
000146 Miami Beach South Beach Pennsylvania Ave &13th Street
000147 Miami Beach South Beach Washington &13th Street
000148 Miami Beach South Beach 13th Street &Collins Ave
000149 Miami Beach South Beach 14th Street &Collins Ave
000151 Miami Beach South Beach Michigan Ave &14th Street
000152 Miami Beach South Beach 14th Street &West Ave
000153 Miami Beach South Beach 14th Street &Bay Road
000154 Miami Beach South Beach Bay Rd &15th Street
000156 Miami Beach South Beach 16th Street &Bay Rd
000157 Miami Beach South Beach 15th Street &Alton Rd
000158 Miami Beach South Beach Euclid &15th Street
41
000159 Miami Beach South Beach 15th Street &Washington Ave
000161 Miami Beach South Beach 15th Street &Collins Ave
000162 Miami Beach South Beach Pennsylvania Ave &16th Street
000163 Miami Beach South Beach Lincoln Rd &James Ave (CVS Pharmacy)
000164 Miami Beach South Beach Washington Ave &17th Street (The Fillmore)
000166 Miami Beach South Beach Drexel Ave &Lincoln Rd (MB Community
Church)
000167 Miami Beach South Beach Pennsylvania Ave &Lincoln Rd (H &M)
000168 Miami Beach South Beach Euclid Ave &Lincoln Lane (Oribe Salon)
000169 Miami Beach South Beach Meridian Ave &Lincoln Lane (Macy's)
000170 Miami Beach South Beach 1666 West Avenue
000171 Miami Beach South Beach Jefferson Ave &Lincoln Rd (DogBar)
000172 Miami Beach South Beach Michigan Ave &Lincoln Rd (The Gap)
000173 Miami Beach South Beach Lenox Ave &Lincoln Rd (YardHouse)
000174 Miami Beach South Beach Lincoln Road &West Ave
000175 Miami Beach South Beach Lincoln Rd &Bay Rd
000176 Miami Beach South Beach Venetian Causeway &Island Ave (The
Standard Hotel
000177 Miami Beach North Beach Purdy Ave &18th Street (Marina)
000178 Miami Beach North Beach 17th Street &Convention Center Dr (City
Hall)
000179 Miami Beach North Beach 19 St &Convention Center Dr
000181 Miami Beach North Beach 17th Street &Collins Ave
000182 Miami Beach North Beach 18th Street &Collins Ave
000183 Miami Beach North Beach Washington Ave &22 St (Washington Ct)
000184 Miami Beach North Beach 19th Street &Dade Blvd (Publix)
000187 Miami Beach North Beach West Ave &20th Street (Publix on the Bay)
000188 Miami Beach North Beach Sunset Dr &20th Street
000199 Miami Beach North Beach Washington Ave &21 St Street
000201 Miami Beach North Beach 21st Street &Collins Ave
000202 Miami Beach North Beach Miami Beach Dr &22 Street (In parking Lot)
000203 Miami Beach North Beach 23rd Street &Collins Ave (Walgreens)
000205 Miami Beach North Beach 24th and Collins Ave
000206 Miami Beach North Beach 25th Street &Collins Ave
000207 Miami Beach North Beach 26th Street &Collins Ave
000208 Miami Beach North Beach 26th Street &Pine Tree Dr
000209 Miami Beach North Beach 29th &Collins (Edition Hotel)
000210 Miami Beach North Beach 31st Street &Collins Ave
000211 Miami Beach North Beach 35th Street &Collins Ave
000212 Miami Beach North Beach 40th Street &Collins Ave
000214 Miami Beach North Beach Royal Palm Ave Between 41 St &42St
000215 Miami Beach North Beach Chase Ave Between 40st &41 st
000216 Miami Beach North Beach 39th Street &Alton Rd
000218 Miami Beach North Beach Prarie Between Chase &44 Terr
000220 Miami Beach North Beach Collins Ave &44th Street (Fountainbleau
Hotel)
000221 Miami Beach North Beach 46th Street &Collins Ave (Parking Lot)
000302 Miami Beach North Beach Collins Ave &5300 Block
000304 Miami Beach North Beach 64th Street &Collins Ave (parking lot)
000305 Miami Beach North Beach 67th Street &Collins Ave
000306 Miami Beach North Beach 69th Street &Collins Ave (Publix)
000308 Miami Beach North Beach 71 st Street &Byron Ave
000310 Miami Beach North Beach Rue Notre Dame &71 Street
000311 Miami Beach North Beach Trouville Esplanade &Normandy Dr
42
000312
Court)
000313
000314
000315
000316
000401
Miami Beach North Beach 1102 Biarritz Dr (Normandy Shores Tennis
Miami Beach North Beach 73rd Street &Dickens Ave
Miami Beach North Beach Collins Ave &73rd Street
Miami Beach North Beach 76th Street &Collins Ave
Miami Beach North Beach 79th Street &Collins Ave
Miami Beach North Beach 88th Street &Harding Ave
43
Exhibit 3.1
Program Equipment
(Rental Kiosks,Bicycle Racks and Bicycles)
35
Exhibit 3.1 (a)
Rental Kiosks and Bicycle Racks
36
Exhibit 3.1 (b)
Docked Bicycle Image and Specifications
The Program consists of both commercial-grade mechanical and electric-assist bikes in
24-inch and 26-inch versions,generally as follows:
-;2<
J
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37
Frame 6061 PG Aluminum (T4/T6)HIT:50"4434x132
Fork CS-9101 Hi Tensile Steel,Integrated Style Crown,
Curved Legs with Double Eyelets 28.6x1.4T
Headset Alloy,25.4-44-30,Semi Integrated Bearings
Handlebar Custom,Alloy &Steel
Stem Alloy,180mm Quill x 90mm Extension x 30 Degree IRise25.4mm Barbore
Grips Black/Grey,130mm Len gth
Seat Binder Alloy Seat Clamp with Quick Release,wlLocking Mech.
Seat Post Alloy w/lntegrated Clamp,31.8mm x 400mm ,
Accommodates Riders 5'-6'3"
Saddle Cionlli 7257 with Chromoly Rails and Elastomer
Suspension
Cranks Alloy 3 Piece Crank with PVC Disc Cover-Grey,
170mm,42T Steel Ring
Chainring Steel,42T x 1/2"x 1/8"
BB Steel,BC1.37"24T.Double Sealed Bearings
(Shimano Tool Compatible)
Chain K.M.C.Z410 Rust Buster,1/2"x 1/8"
Chain Guard Steel or alloy
Pedals VP-LED1,Boron Ax le,9/16"
F.Hub DH-3N2ONT Dynamo Front Hub 12G x 36H,Nutted
R-Hub Shimano Internal Coaster Brake,12G x 36H x 3/8"
150mm Axle
Sprocket /Freewheel 20T x1/2"x 1/8"
Rims 26"x1.95"/2.125"x 36H x 12G,Alloy
Spokes 12G Stainless Steel with Brass Nipples
Tires CST 26 x1.95"
Tubes Tubes with Puncture Sealant,American Schrader
Valves,
Kickstand Alloy
Lighting 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 Alloy 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 Subject to Change and Modification
38
Exhibit 3.1 (c)
Docked E-Bike Guidelines
•An E-Bike shall be defined as a bicycle,equipped with two tandem wheels and a
motor that provides assistance only when the rider is pedaling,and that ceases to
provide assistance when the bicycle reaches 12 miles per hour.
•Concessionaire shall operate up to 100 E-Bikes,in the design approved herein
within the current Concession Areas,and the combined number of regular bicycles
and E-Bikes shall never exceed the Operational Ceiling established under the
Agreement.
•Concessionaire shall have the discretion of placing and moving E-Bikes across all
docking stations depending on the usage and demand of the E-Bikes.
•Concessionaire shall provide its users with instructions detailing where they are
permitted to ride,including applying stickers on the inside of each bicycle basket,on
the exterior of each docking station,and on its website,pursuant to the restrictions
set forth in Section 70-67 of the City Code,as may be amended from time to time.
•Concessionaire agrees to equip the bicycles with GPS tracking devices,which may
be used by Concessionaire or the City to locate the bicycles.
•Electric bikes are not allowed to be ridden on any sidewalk in Miami or Miami
Beach,the Beach Walk,Lincoln Road Mall,South Pointe Park,Pier and Cutwalk,
Marina Baywalk,Collins and Lummus Park.(See map with prohibited riding
locations:https://citibikemiami.com/map )
•For adult riders only 18+
•Citi Bikes are NOT permitted on the Metrorail or Metro Mover systems.Miami-
Dade Transit Security and local police are authorized to stop anyone who fails to
comply and may retain the bike(s).
39
Exhibit 3.8
Price Schedule
Memberships-
•Standard Monthly Membership Subscriptions:$20 per month (enjoys unlimited 30-
minute rides;requires 3-month minimum commitment)
•Deluxe Monthly Membership Subscriptions:$25 per month (enjoys unlimited 60-
minute rides;requires 3-month minimum commitment)
•1-Month Membership:$35 (enjoys unlimited 60-min rides)
•1-Day Membership:$24 (enjoys unlimited rides and ride time during the
membership period)
Hourly Rentals -Mechanical Bikes {enjoys unlimited rides during the rental period)-
•½HR:$6.50
•1HR:$8.50
•2HR:$10.95
•4HR:$18.00
•24HR:$24.00
Hourly Rentals -Electric-Assist Bikes {enjoys unlimited rides during the rental
period;rates for electric-assist bikes are currently the same as mechanical bikes and
are expected to be a higher cost than mechanical bikes during the contract term)-
•½HR:$6.50
•1 HR:$8.50
•2HR:$10.95
•4HR:$18.00
•24HR:$24.00
Additional Fees/Charges-
•Additional Usage (late return fees):$4.95 per half hour
•Membership account reactivation (failed billing):$10
•Early Membership Termination Fee:$45
•Maximum Daily Rental Fees:
o $75-Mechanical Bike
o $75-Electric-Assist Bike
•Unreturned Bike Recovery Fee (Deco staff successfully manually locates and
retrieves an unreturned bike):$75
•Lost/stolen/unreturned bike fee:$1000 for mechanical bikes;$2300 for electric-
assist bikes
40
Exhibit 3.10
Preparedness and Evacuation Plan
Concessionaire shall endeavor to relocate or store bikes in a safe location per the terms of
this agreement prior to the arrival of a major hurricane.In addition to Concessionaire's
own storage facilities,Concessionaire may utilize additional storage at the following
location:
Aejandro Diaz
March 1,2009
Ta Deco Bike,LLC.
3301 NE 4 Anus
Miami,FL 33137
Re:Hurricane Storage
Miami Beach cycle Rental Pr&gram
To whom it ray sorcerrt:
l hereby authorize Occo Bike,LLG.to utilize my warehouse,perirg and storage
facilities (in addition lo heir own premises)in the vent of a hurricane so that
tray may store equipment as needed to protect it ftomn the adverse weather
con ditions.
Attach ed you will find a copy of my dsrd.Should you have any questions,please
feel fee to contact me at 305-742-7333.
Regards.-.4.,ht5
Property G wnor
13321 SW 135th Avenue
Miemi,FL 33185
41
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43
Exhibit 4.3
Citi Bike Sponsorship Agreement
And
Sponsorship Extension Chart (Extension Chart is intentionally omitted and kept by
the City Administration separately Pursuant to Trade Secret Affidavit)
44
7/7/2014
MIAMI AREA BICYCLE SHARE SPONSORSHIP AGREEMENT
This MIAMI AREA BICYCLE SHARE SPONSORSHIP AGREEMENT ("Agreement"),
effective June 7,2014 is entered into bvy and between Citibank,N.A.(Citi"),a national banking
association and Dec0Bike,LLC,a Florida limited liability company ('Deco").Each of Citi and Deco is
referred to herein individually as a "Party"and collectively,the "Parties."
RECITALS
WHEREAS,Deco has entered into agreements with the cities of Miami and Miami Beach (the
"Cities")to operate a 24-hour bicycle share program for Miami and Miami Beach (the "Program");nd
WHEREAS,Deco and Citi desire to enter into an agreement whereby Citi will become the title
sponsor of the Program;and
NOW,THEREFORE,in consideration of the mutual covenants and promises contained herein,
and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
I Grant_of Rights.Subject to the terms and conditions of this Agreement,Deco hercby grants the
following rights and benefits to Citi during the Term (as defined below).
A.The exclusive right to be the sole commercial sponsor of the Program and to designate the
name of the Program during the Term,
B.The right to be the sole and exclusive title sponsor of the Program and the only entity whose
naamne,logo and/or marks shall appear on the Program bicycles or other equipment.The Parties
acknowledge and agree that the title level of sponsorship shall be the highest level of the sponsorship for
the Program,meaning that no other Program sponsor (if any)shall havc the same,similar or better
benefits than those granred to Citi herein;
C The sponsorship benefits set forth herein and in Exhibit 4,attached hereto and made a part
hereof;end
D.The right to use the Deco Marks (define below)in its advertising and promotional materials.
II.0her Sponsors gr Promgtuona!Partners.During the Term of :his Agreement,Citi acknowledges
and agrees that Deco shall have the right te secure additional non-commercial sponsors or promotional
partners.Deco shall,prior to entering into any agreement with or providing any sponsorship or
promotional benefits to additional sponsors or parters.present a{l additional sponsors or partners to Citi
for its w ritten approval,w hich shall not unreasonably be withheld or delayed.
Ill.Deco'Responsibilities.Subject to the terms and conditions of this Agreement,Deco agrees,at its
own cost and expense,to:
7/7/2014
A Operate,establish,administer and conduct the Programn,including but not limited to by
securing and maintaining the bicycles to be used in the Program,building and managing the stations for
such bicycles,maintaining and staffing a 24-hour customer service call center for the Program,sitting of
stations,conducting a variety of bicycle safety education initiatives and collecting Program membership
fees,all in accordance with the Service Level Agreements ("L.As")set forth in Exhibit B attached hereto
and made a part of this Agreement as applicable,the Program metries set forth in Exhibit C attached
hereto and made a par of this Agreement,and with all applicable federal,state,and local laws,
regulations,ordinances and codes As part of such operations,Deco,m consultation with the cities of
Miami and Mimi Beach shail be responsible for the setting of prices for Program memberships,
provided,however.that in the event that Deco seeks to increase prices by more than twenty percent
(20%)than the prices set forth in Exhibit F,Deco shall secure Citi's prior approval,
B Provide the benefits set out in Exhibit A,including the title sponsor naming rights.Deco
will obtain all of the necessary rights,consents,licenses and permission to both perform its obligations
hereunder and to allow Citi to exercise all of the rights and benefits provided by Deco herein,
C.Incorporate the Citi Marks (as defined below)including the Program Marks (as defined
below)on the bicycles to be used in the Program,the stations for the Program,the maintenance trucks for
the Program,receipts given to customers participating in the Program,and m all advertising and
promotional materials for the Program,including but not limited to any web-based and printed materials,
all subject to the terms set forth in Section VI(C)of this Agreement,
D.Conduct ongoing system research and analysis,including but not limited to a survey of
Program members,on at least an annual basis.Such research and analysis shall be designed to understand
public attitudes,impressions and use of the Program and may be executed through online,telephone
andior n-person surveys,
E.Develop and operate the Program website and Program mobile application(s)in
accordance with Section VII below (including,subject to the mutual agreement of the Parties,acquiring
the Program website URL(s)and Program mobile application(s),provided,however,that if any Program
domain name or Program application name contains a Citu Mark,such name(s)will be owned by
Cigroup Inc.);
f In addition to maintaining the condition of the bicycles as set forth in Exhibit B,after any
bicycle has been in service for three (G)years,Deco examine the condition of such bicycle and where the
bicycle frame shows wear,tear,or fading of color of an excessive nature.Deco will replace or recondition
such bicycle,
G.Provide Citi with copies of the ridership and usage reports it submits to the Cities of
Miami and Miami bcacl regarding the H'rogram;
H Promote and advertise the Program;and
L.Produce marketing and promotional materials tor the Program
2
7/7/2014
Iv.Cii's Responsibilities.In consideration of the rights and benefits granted to Cii hereunder,Cit
agrees to:
A.Make timely payments to Deco of the consideration set forth in Section V below;
B.Coordinate and consult with Deco on the marketing plan and all of the promotional
efforts to be made in support of the Program,regardless of the Party making such efforts;
C.Grant Deco the non-exclusive right to use the Citi Marks only in connection wit the
Program and the advertising.marketing and promotion of the Program in the United States (the
"Territory")in accordance with the terms and conditions of this Agreement;and
D.Provide fender stickers with the Program L.ogo (defined below)and Program Name
(defined below)for installation on the bicycles by Deco.
v.Sponsorship &Equipment_Fges
A.Sponsorship Fee.Inconsideration for the rights and benefits granted to Citi hereunder,
Citi agrees to pay Deco the following fees for the title sponsorship (the "Sponsorship Fcc'')during the
term as follows:
•For the 2014-2015 contract year which shall begin on the Re-Launch Date (defined below),Citi
shall pay Deco a total not to exceed $!,645,000.00 in four installments each of which shall be due
on the fifteenth day of the first month of the calendar quarter (in the following amounts:(i)
$399,500.00,(ii)S423,000.00,(iii)$411,250.00 and (iv)$411,250.00);provided,however,that
Deco re-launches,operates and maintains the Program with {750 bicycles and l70 station kiosks
(it is agreed and understood that bicycles may be out of circulation temporarily for maintenance
and servicing)In the event that Deco fails to re-launch and continually operate the Program with
I750 bicycles and I7O station kiosks,Citi's Sponsorship Fee for such year will decrease based on
the pro rata number of bicycles and kiosks that are operational.The first installment of
$399,500.00 shall be due on the Re-Launch Date.Each subsequent installment shall be due sixty
(60)days after Citi's receipt of an acceptable invoice from Deco which include the amount of
installment of the Sponsorship Fee based on a calculation completed as of the first day of the
calendar quarter which shall be for amount of the applicable installment due or the pro rata
amount of such fee based on the number of bicycles that are operational (using {750 as the
denominator).if not a!!1750 are operational In the event that Deco fails to have 700 bicycles
and 85 kiosks rcady for the re-launch of the Program by November {5,20\4,Citi shall have the
right to terminate this Agreement.
•For the 7015-2016 contract year,Citi shall pay Deco a total not to excccd $1,801,275.00 i four
installments each of which shall be due on the fifteenth day of the first month of the calendar
quarter,the first two af $444,150.00 and the last two of $456,487.50 based on invoices received
from Deco at the start of each calendar quarter;provided that 1800 bicycles and between 170 and
175 kiosks continue to be operational for the Program.In the event that 1750 bicycles and 170
kiosks are not operational then the invoices submitted by Deco shall be for a pro rata amount of
3
1/1/2014
the applicable installment based on the number of bicycles that are operational (using 1800 as the
denominator).
•For the 2016-20l7 contract year,Citi shall pay Deco a total not to exceed $1,969,065.00 in
equal quarterly installments,each of which shall be due on the fifteenth day of the first month of
the calendar quarter,0f $492,266.25 based on invoices received from Deco at the start of each
calendar quarter;provided that 1900 bicycles and be kiosks continue to be operational for the
Program In the event that 1900 bicycles and between 175 .'80 kiosks are not operational then
the invoices submitted by Deco shall be for a pro rata amount of $492,266.25 based on the
number of bicycles that are operational (using I9I)as the denominator).In addition,the first
installment of the Sponsorship Fee for this year of the Term shall only be due if seventy·five
percent (75%)new racks with the Program Logo and colors have been installed in Miami Beach.
In the event that seventy-five (75%)of the new racks have not been installed Citi shall be able to
withhold payment until the racks are installed
•For the 2017-2018 contra ct year,Cii shall pay D eco a total not to exceed $2,176,340.00 in
equal quarterly installments,each of which shall be due on the fifteenth day of the first month of
the calendar qunatter,0f $544,085.00 based on voices received from Deco at the start of each
calendur quarter;provided that 2IO bicycles and between 180-185 kiosks continue to be
operational for the Program In the event tlat 1900 bicycles and between I80 I85 kiosks are not
operational then the invoices submitted by Deco shall be for a pro rata amount of $544,08$.00
based on the number of bicycles that are operational (using !900 as the denominator).
•For the 2018-2019 contract year,Citi shall pay Deco a total not to exceed $2,285,160 1n equal
quarterly installments,each of which shall be due on the fifteenth day of the first month of the
calendar quarter,0f 57.290.00 based on invoices received from Deco at the star of each
calendar quarter,provided that 2000 bicycles and between I0-15 kiosks continue to be
operational for the Program In the event that 2000 bicycles and between 180-185 kiosks are not
operational then the invoices submitted by Deco shall be for a pro rata amount of$571,290.00
based on the number of bicycles that are operationa!(using 2000 as the denominator).
B.Equipment Fees.Citi shall also pay Deco the follow+g equipment fees which shall be
used by Deco to purchase new kask payment terminals and dock pods ("Equipment Fees").
•For the 2014-2015 contract year,Citi shall pay Deco Equipment Fees totaling $749,440.00 to
purchase new kiosk payment terminals in two installments as follows:(iy $449,440.00 which
shall be due in the first calendar quarter of 201$and (ii)$300,000.00 which shall be due in the
third calendar quarter of 2015.
•For the 2015-2016 contrnet year,Citi shall pay Deco Equipment Feces totaling $550,000.00 to
purchase new dock pods in four installments as fallows.(i)$200,000.00 in the fourth calendar
quarter of 2015,(ii)$125,000 in the first calendar quarter of 2016,(iii)$125,000 in ttie second
calendar quarter of 2016,and (iv)$100,000 in the third calendar quarter of 2016.
•
..--------
7/7/2014
•For the 2016-2017 contract year,Cii shall pay Deco Equipment Fces totaling $400,000.00
payable in four equal quarterly installments to purchase new dock pods.
•For the 2017-2018 contract ycar,Citi shall pay Deco equipment fees toaling $400,000.00
payable in four equal quarterly installments to purchase new dock pods.
•For the 2018-2019 contract year,Citi shall pay Deco equipment fees totaling $350,000.00 to
purchase new dock pods in four installments as follows:(i)$100,000 in fourth calendar quarter of
2018,(i)$100,000 in the first calendar quarter of 2019,(iii)$75,000 in the second calendar
quarter of 2019,and iv)$75,000 in the third calendar quarter of 2019.
Deco shall maintain books and records which include invoices for the equipment purchases set forth
above and shall supply such invoices and books and records to Citi at Citi's request.In the event that
Deco is able to purchase the equipment specified above for less mouey than provided by Citi,Deco shall
refund Citi the monies unspent on such equipment.
C.Adyace.During the first contract year,Citi shall advance Deco a total of $800,000,
payable as follows:(i)$290,500 on the first day of the fourth calendar quarter of 2014:(ii)$400,000 on
the first day of the first calendar quarter of 2015;(iii)$54,750 on the first day of the second calendar
quarter of 2015,and (iv)$54,750 on the first day of the third calendar quarter of 2015.Deco shall then
provide Citi with quarterly $50,000 credits which shall be used to reduce Citi's Sponsorship Fee
payments beginning in the fourth quarter of 2015 until the end of the Term.
D.Payment[grm.All payments made hereunder shall be payable and delivered by wire
transfer and shall be made upon invoice sent by Deco no less than sixty (60)days prior to each of the due
dates set forth herein.Except as otherwise specifically set forth herein,as between Citi and Deco,each
Party sball be responsible for any costs and expenses incurred by them associated with the performance of
their obligations under this Agreement.For accounting purposes,Deco may designate and direct Citi to
make full or partial payments to an affiliate or subsidiary cf Deco,approved by Citi,that is legitimately
performing duties covered by this agreement as Deco has,or may have,different shareholders and
financial obligations under different corporate entities in the performance of its duties on behalf of several
independent municipalities.
VI.Naming._Marks_&g Hyprlinkgs
A.Progrgmn_Name.Deco and C:ti agree that the initial Program name shall be "Citi Bike."In the
event that Cii (i)changes its corporate name or (ii)changes it branding strategy,Citi shall be entitled to
change the Program Name by substituting its new corporate name or nationa brand in place of its current
name,subject to the prior written approval of Deco,such approval not bc unreasonably withheld,and,so
tong us such change is permissible under Deco's municipal agreements and applicable tocal ordinances
relating to branding the public right of way.Deco agrees that it will consent to the change of Program
Name pursuant to this Section VIA)if such name reflect the ten curent corporate name of Cit&or Citi's
then current brand.
D.Programn Logo.Cit has developed a program logo that incorporates the Program Name
("Program Logo")and is at:ached hereto in Exhibit D The Program Name and Program Logo shall both
5
7/7/2014
be considered Citi Marks.In the event of a change in the Program Name,Citi and Deco agree to work in
good faith to jointly develop a new Program Logo.Given the centrality of the Citi Marks to Citi's brand
identity,Citi shall have the sole and exclusive ownership of any and all right,title,and interest in and to
the Program Name and Program Logo
C.The Parties'Marks &Hyperlin1is
l.it_arks.Citi,on behalf of its affiliate Citigroup Inc.,hereby grants to Deco a non-
exclusive,non-transferable,non-sublicensable,royalty-free license in the United States and on the
Internet during the term of this Agreement to use the Program Name,Program Logo,and trademarks,
service marks,and other indicia of ownership of Citi set forth on Exhibit D (the "Citi Marks")in
operating,advertising and promoting the Program in any media wnether existing now or later invented ,
ineluding but not limited to for incorporation on the bicycles and stations,provided,however,that Citi
approves all such uses of the Citi Marks (including,but not limited to approval of messages containing
any of the Citi Marks delivered through social media platforms such as Facebook and Twitter)in writing
in advance of distribution or printing.Notwithstanding the forgoing it is understood that Dcco can only
use the Citi Marks to operate the Program in the cities of Miami,Miami Beach,Surfside,Bay Harbor
Islands (or any other municipalities that Deco may expand to locally that may become subject to this
agreement)and any uses outside the state of Florida shall solely be related to the promotion and
advertising of the Program as it is availablc in Miami and Miami Beach.Citi's approvals shall not be
unreasonably withheld or delayed.All uses by Deco of the Citi Marks shali (I}be appropriate and
dignified and benefit Cit's public image and (2)inure solely to the benefit of Citi.Deco shall have the
limited right to sublicense the Program Name and Logo during the Term in the Territory in connection
with operating,advertising and pronoting the Programn in any media whether existing now or later
invented to hird parties who promote the Program or advertise offers in connection with the Program as
part of their participation in the Program,provided,that such third parties are approved by Citi and the
sublicense is a form approved by Citi and includes Citi as a third party beneficiary of the license for the
purposes of enforcing Citi's rights to the Program Name and Program Logo.Notwithstanding the
forgoing,Deco shall not be permitted to sublicense the Citi Marks to any mobile application providers.
Rather,Citi shall enter into such agreements with such providers directly,as Citi determines necessary.
Citi hercby grants to Deco permission to establish and maintain a hyperlink from the Program website
where the Citi Marks appear to citi.com (or such other URLs as Citi may designate)(the "Citi
Hyperlinks").The Citi Hyperlinks will be used for the purposes of promoting and advertising Citi's
sponsorship of the Program,and Deco may link to Cit's websites solely for those purposes.Citi reserves
the right,in its sole discretion,to eliminate,disable or discontinue the Citi Hyperlinks at any time,or to
require Deco to eliminate,disable or discontinue the Cit Hyperlinks at any time.
2.Deco_Marks.Deco hereby grants to Citi a non-exclusive,non-transferable,non-
sublicensable,royalty-free license in the United States and on the internet during the term of this
Agreement to use the trademarks,services marks and other indicia of ownership of Deco attached hereto
as Exhibit E (collectively,the "Deco Marks")in advertising and promoting the Program in any media
whether existing now or later invented.Deco shall have the right to approve all such uses in writing in
advance of distribution or printing.Such approvals shall not be unreasonably withheld or delayed.Deco
6
1/1/2014
hereby grants to Citi permission to establish and maintain a hyperlink from the Citi.com (or any other Citi
website)to the Program webste (the "Deco Hyperlinks").The Deco Hyperlinks will be used for the
purposes of promoting and advertising the Program,and Citi may link to the Program website solely for
those purposes.Deco reserves the right,in its sole discretion,to eliminate,disable or discontinue the Deco
Hyper{inks at any time,or to require Citi to eliminate,disable or discontinue the Deco Hyper!inks at any
time.
A Functionality &Ownership.s set forth in Section HI[E)Deco shall be responsible for creating.
updating,hosting,and operating a Program website and Program mobile application,including but not
limited to creating and adhering to terms and conditions and privaey policies for the such website and
application Deco shall ensure that the Program website is available to users as of the Program Re-
Launch Date (defined below)and that the Program mobile application is available to users on a date that
is mutually agreed upon by the parties but no later than one month before the Program Re-Launch Date.
The version of the Program mobile application that shall launch on such mutually agreed upon date shall
allow users to locate Program stations,available bicycles,and Citibank branches and shall be created for
Apple and Google platforms.Deco shall be responsible for expanding the Program mobile application to
run on other platforms as mutually agreed to by the Parties and shall,at regular intervals as reasonnbly
necessary for the operation of the application,updnte the mobile application and issue new versions of the
application which shall include functionality that will be mutually agreed upon by the Parties.Except as
set forth in Section VI(CI),Deco shall own the Proram mobile application and website,hoth of which
shalt relate solely to the Program.
B.Takedown Notices.Deco authorizes Citi and its affiliates and their designee(s)to act as agent for
and on behalf of Deco for purposes of seeking the takedown,removal,or deletion of any unauthorized
reproductions or colorable imitations of the Program mobile application or website,and undertaking
activities in connection therewith (and Deco shall provide related consents and authorizations or join us a
party if reasonably requested by Citi).The Parties acknowledge and agree tha Citi sha!!have no
obligation to seek such takedawn,removal,or deletion and may cease pursuing the takedown,removal,or
deletion of any such reproduction or imitation at any tune and in Citi's sole discretion.Citi shall have no
liability to Deco or affiliates or any other person or entity i connection with its or its designee(s)actions
or omissions i connection with any such takedown.removal,or deletion,and any such actions or
omissions shall he considered those of Deco for the purposes of Section VHI(H)of this Agreement.
C.Securitylnident Renerting.In order to ensure a consistent process for identifying,reporting,
investigating and closing information security incidents,Deco shall develop,implement,document and
maintain an information security incident reporting process (hereinafter "S[RP").Such SIRP shall (u)
provide an acmute and up-to-date list of Deco and iti personnel to be contctcd in the cvent of a actual
or suspected information security incident related to the Program website audior Program mobile
application which may or could result in the disclosure of personally identifying information from
Program members,including but not limited to credit or debit card numbers,(b)detail incident severity
definitions,and (c)set specific escalation procedures and timeframes for same based upon the breach
7/7/2014
severity level of the actual or suspected information security incident.At a minimum,the S{RP must (I)
mandate that all of Deco personnel notify their management in the event that any of Deco personnel
become aware of any action which indicates that there has been or may be an information security
incident,and (2)mandate hat an officer of Citi must be contacted immediately in the event of any actual
or likely disclosure of personaliy identifying information from members,in accordance with rhe
aforementioned escalation procedure.
D.ygIngrability Assessment.,At Citi's request,no less than semi-annually,Deco will allow Citi or a
third party engaged by Citi,to perform a vulnerability assessment of the Program website and/or Program
mobile application,including but not limited to Deco's technology infrastructure ("Vulnerability
Assessment").Citi shall be responsible for all expenses associated with the performance of the
Vulnerability Assessment.Deco will provide information requested by Citi to enable Citi or a third party
engaged by Citi to perform the Vulnerability Assessment within seven (7)days of Citi's request for such
information.Citi shall keep complete and accurate records regarding the results of the Vulnerability
Assessment Citi will notify Deco of security risks identified by Citi or by a third party engaged by Citi
(singular "Deficiency",or plural,"Deficiencies").Deco shall have thirty (30)days to cure all
Deficiencies identified as "high"according to industry standards.All other Deficiencies identified will be
cured by Deco within ninety (90)days of Citi's notification to Deco of such Deficiencies.Deco shall be
responsible for all expenses associated with curing Deficiencies identified as a result of the Vulnerability
Assessment.Cii shall have the right to re-perform the Vulnerability Assessment upon receipt of Deco's
notification that Deficiencies were eliminated.If,in Citi's sole and exclusive discretion,the results of
such Vulnerability Assessment demonstrate that Deco has failed to cure any Deficiency,Citi shall have
the right to terminate this Agreement immediately upon written notice,without liability.Further,if Citi
terminates this Agreement in accordance with this Section,Citi shall be entitled to a prorated refund of
the fees paid to Deco.
Industry standard definition of HIGH,MEDIUM,and 1.OW Deficiencies
High Risk:These issues identify conditions that could directly resuit in the compromise or
unauthorized access of a network,system,application or information.Examples of High
Risks include known buffer overflows;weak/no passwords,no encryption,which could
result in denial of service on critical systems or services;unauthorized access;and
disclosure of information In addition,all non-compliant Citigroup policy issues will be
categorized as High:Risk
Medium Risk:These issues identify conditions that do nor immediately or directly result
in the compromise or unauthorized access of a network,system,application or
in for«nation,but do provide a capability or information that could,in combination with
other capabilities or information,result in the compromise or unauthorized access of a
network,system,application or information.Examples of Medium Risks include
unprotected systems,files,and services that could result in deniai of service on non-
8
7/7/2014
critical services or systems;nnd exposure of configuration information and knowledge of
services or systems to further exploit.
Low Risk:.These issues identify conditions that do not immediately or directly result in the
compromise of a network,system,application,or information,but do provide information
that could be used in combination with other inforation to gain insight into how to
compromise or gain unauthorized access to a network,system,application or information,
Low risk issues may also demonstrate an incomplete approach to or application of security
measures within the environment.Examples of Low Risks include cookies not marked
secure;[P hopping;revealing system banners;and general best practices
recommendations
V I I.Term_&Termination
A.ermn.The initial term of this Agreement shall begin on the effective date and shall continue for a
period of five ($)years from the date that the Program is re-launched to include the downtown Miami
area and all Program bicycles include the Program Logo (the "Program Re-Launch Date')({the "Initial
Term"),unless terminated earlier in accordance with Section VIII(B).Such Program Re-Launch Date
shall occur no later than November I5,2014.Thereafter,the Parties may automatically renew this
Agreement for (a)an additional five (S)year term in Deco's City of Miami program and (b)to the natural
expiration of Deco's municipal contract term in the City of Miami Beach (Expiratior:Date:September 30,
2023),upon the mutual agreement of the Parties no less than one-hundred and twenty (120)days prior to
the end of the then-current term (each,a "Renewal Term").The Parties will mutually agree on the
Sponsorship Fee for any Renewal Term,while all of the other terms and conditions set forth herein shall
remain the same,except as otherwise agreed to by the Parties in writing.Notwithstanding the forgoing,in
the event that Deco elects not to renew the Agreement and enter into an agreement with a third party for
the title sponsorship,Deco must,prior to entering into such an agreement,provide Citi with the option to
renew its sponsorship under the same terms and conditions as those offered to such third party.The Initial
Term together with each Renewal Term shall collectively be referred to herein as the "Term."
B.Termination.
I.Citi shall have the right to terminate this Agreement upon ten (I0)days prior written notice to
Dcco in the event that the City of Miami,the City of Miami Beach,or any other
governmental or administrative body or agency having jurisdiction related to the Program,
terminates its agreement with Deco governing the Program or passes any rule,regulation,or
law that would significantly limit Deco's ability to operate the Prgram as contemplated
herein.In the event of such termination,Deco shall refund Citi a pro-rata portion of the
Sponsorship Fee and any applicable advances paid for the contract year during which such
termination occurs.Nothing herein shall be interpreted to preclude Citi from entering into an
agreement with another operator of the Program in the event that the contract between Deco
and the City of Miami or the City of Miami Beach is terminated.
2 Citi shall have the right to terminate this Agreement immediately in the event that a change in
law,regulation,or other regulatory requirement applicable Citi (herein referred to as "New
9
7/7/2014
Legislation"),would prohibit Citi from sponsoring the Program or would render Citi's
obligations hereunder impermissible or impracticable without a violation of the New
Legislation.Notwithstanding the forgoing,in the case of termination by Citi pursuant to this
paragraph,Citi shall provide Deco with the amount of prior notice allowed based on the
effective date and the content of such New Legislation.Any Equipment Fees already paid by
Citi to Deco shall not be refundable if Citi terminates for this reason and Citi shall continue to
make such payments pursuant to a scparate written agreement which will be entered by the
parties,provided,that Deco has made purchases for which such Equipment Fccs were to be
used (and can provide supporting documentation of such purchases),the equipment is
necessary and capable of functioning as intended.and Deco is not able,after using ail
commercially reasonable efforts to immediately cancel the order(s),return or reduce the
amount of such purchases.
3.Citi shall also have the right to terminate this Agreement if Deco breaches this Agreement
and the breach remains uncured for more than twenty (20)days after Deco receives written
notice of such breach from Cti,except for breaches by Deco of Section III(C)(DO),(E),(F),
(G),in which case Deco shall have sixty (60)days to cure such breach and breaches which
result from Deco's failure to meet the non-safety related SLAs for which Deco shall have
ninety (90)days to cure such breach.In the event of such termination,Deco shall refund Citi
a pro-rata portion of the Sponsorship Fee paid for the contract year and any applicable
advances during which such termination occurs.Notwithstanding the forgoing,in the event
of that Citi terminates this Agreement as a result of a breach for with a sixty (60)or ninety
(90)cure period applies,then any advances rude by Citi of the Sponsorship Fees and the
Equipment Fees paid hy Citi shall not be refundable;provided that Deco has made purchases
for which such advances and Equipment Fees were to be used (and can provide supporting
documentation of such purchases),the equipment is necessary and capable of functioning as
intended,and Deco is not able,after using alt commercially reasonable efforts to immediately
cancel the order(s},return or reduce the amount of such purchases and provided,further,such
termination is not the result of Deco's misuse of such Equipment Fees or the advances.
4.Citi shall also have the right to terminate this Agreement upon one hundred eighty (I80)days
written notice in the event that the Program fails to meet the agreed upon utilization netrics
set forth in Exhibit C sy the end of the fourth quarter of the first year of the Term.Such
termination would become effective on the last day of the first quarter of the second year of
the Term Any Equipment Fees and advances of Sponsorship Fees used to pay for equipment
for the Program provided by Citi shall not be refundable and Citi shall continue to pay the
Equipment Fees pursuant to a separate written agreement which will be entered by the
parties;provided that Deco has made such purchases (and can provide supporting
documentation of such purchases),the equipment is necessary and capable of functioning as
intended and Deco is not able,after using all commercially reasonable efforts to cancel,
return or reduce the amount of such purchases and provided,further,such ternination is not
the result of Deco's misuse of such Equipment Fees or the advances.
10
1/7/2014
5.Deco shall have the right to terminate this Agreement upon prior written notice to Citi if Citi
fails to make a payment to Deco of any sums due hereunder,provided that Citi is notified in
writing of such nonpayment by Deco and such payment is not made within twenty (20)days
following Citi's receipt af such notification.In the event of such termination,Citi will still be
obligated to pay the sums due hereunder up to the date of termination,but shall be relieved of
any future payment obligations hereunder,except for Equipment Fee for purchases which
Deco can demonstrate through documentary evidence are non-cancellable or refundable.
6.Either Party shall have the right to terminate this Agreement upon prior written notice to the
other Party in the event of:(i)the other Party's insolvency;(ii)the filing of any petition by or
against the other Party under bankruptcy,reorganization,or receivership law which petition is
not withdrawn or dismissed within thirty (30)days thereafter;(iii)the other Party's execution
of an assignment for the benefit of creditors;or (iv)the appointment of any trustee or receiver
of the other Party's business or assets or any part thereof,unless such petition,assignment,or
appointment is withdrawn or nullified within fifteen (15)days of such event.In the event of
termination by Citi hereunder,Deco shall refund Citi a pro-raa portion of the Sponsorship
Fee paid for the contract year during which such temnination occurs.Any Equipment Fees
paid by Citi shall not be refundable;provided that Deco has made such purchases (and can
provide supporting documentation of such purchases),the equipment is necessary and
capable of bemng functioning as intended and Deco is not able,after using all commercially
reasonable efforts to cancel,reum or reduce the amount of such purchases.
7.Upon termination or expiration of this Agreement,each Party shall immediately cease using
the Marks of the other Party.
VIII.Representations,Warranties &Covenants
A.Hy Dgcc.Deco represents,warrants and covenants that:
I.It is authorized by the cities of Miami and Miami Beach and has the ful!right and legal
authority to enter into and fully perform this Agreement in accordance with its terms without
violating the rights of any third party;
2.It has or will abtain all government licenses,waivers,releases,registrations,approvals,
permits or other authorizations necessary to perform its obligations as contemplated under
this Agreement and that such licenses,agreements,permits,waivers,releases,registrations,
approvals,and/or authorizations will be valid and sufficient for the performance of its
obligations hereunder;
3.twill comply with al!applicable laws,regulationus,ordinances and codes pertaining to the
fulfillment of its obligations under this Agreement;and
I!
7/7/2014
IX.
4.The Deco Marks and all content,promotions,and advertising created or furnished by Deco
(except to the extent they use the Citi Marks)for use in connection with the Agreement will
not violate or infringe upon the rights of any third party when uscd by Cti in accordance with
the terms of this Agrcement
5.Deco has and will maintain information security standards and procedures for the Program
website and Program mobile application in accordance with industry standards and maintains
appropriate procedures to remediate any information security breach that may occur.If Deco
leamns that an information security breach has occurred on the Program website or Program
mobile application,Deco will promptly notify Citi of such iafonation security breach to the
extent legally permissible.
B.By_Cii.Citi represents,warrants and covenants that:
l.It has the full right and legal authority to enter into and fully perform this Agreement in
accordance with its terms without violating the rights of any third party;
2.The use of the Citi Marks as permitted and approved hereunder shall not infringe upon the
intellectual property rights of any third party;and
3.ltwill comply with all applicable laws,regulations,ordinances and codes pertaining to the
fulfillment of its obligations under this Agreement.
Indemnifigatign.
A.Deco shall defend,indemnify,and hold harmless Cit,its parents.affiliates and subsidiaries and
its and their respective directors,officers,employees and agents from and against any liabilities,lasses,
investigations,inquiries,claims,suits,damages,costs and cxpcnses (including without limitation,
reasonable attomeys'fees and expenses}(each,a "Claim')arising out of or otherwise relating tc
(i)Deco'breach of its obligations under this Agreement,including but not limited to its representations
and warranties;(ii)the failure of Deco or those acting under its control to comply with all applicable
laws,regulations,codes,ordinances or other requirements of any governmental authority;(iii)the
authorized use of the Deco Marks and materials provided by or on behalf of Deco;(iv)the acts or
omissions of Deco or anyone acting under its direction or control;(v)the unauthorized use by Deco of the
Citi Marks or other Citi owned materials provided pursuant to this Agreement;(vi)or any loss,damage,
personal injury or death,suffered by any third party arising in connection with the Programn.
B.Citi shall defend,indemnify,and hold harmless Deco and its directors,officers and employees
from and against any Claims rising out of or otherwise reiating to (i)Citi's breach of its obligations
under this Agreement,including but not limited to its representations and warranties;(i)the authorized
use of the Citi Marks and any materials provided by Citi in connection with the Program;and (iii)the
unauthorized use by Citi of the Deco Marks or other Deco-materials provided pursuant to this Agreement.
C.Notwithstanding the foregoing,neither Party shall be obligated to indemnify the other Party for
any Claims that may arise out of the gross negligence or willful misconduct of the pnrty otherwise
12
7/7/2014
indemnified.Each Party shall provide written notice to the other of any Claims,whether actual or
threatened,promptly upon receipt of notice thereof.The other party shall make no settlement of an
indemnified claim specifically naming or directing the Indemnified Party without the ademnified Party's
prior written approval.
X.Insurance
A.During the Term,Deco shall obtain and maintain all insurance coverage needed to provide and
the properly run the Program and as required by federal or state law,including without limitation,
Workers Compensation with statutory limit and one million dollars ($1,000,000)Limit Employer's
Liability.one million dollars (S1,000,000)Limit tor Automobile Liability,Commerciai General Liability
including broad form contractual liability and personal injury endorsements,providing coverage against
liability for bodily injury and property damage in the minimum amount of $1MM per occurrence and na
less than two million dollars (S2,000,000)annual aggregate in addition to ao Umbrella/Excess Liability
providing excess liability coverage in the minimum amount of ten million dollars ($10,000,000.00)
annual aggregate.Upon request of'Citi,Deco shall provide a copy of a Certificate of Insurance that
conforms to the foregoing requirements.The certification provided to Citi must include the amount and
type of the coverage(s),names of the insurance providers,the policy numbers and the expiration date of
such coverage(s),or that such coverage information has not materially changed since the effective date of
this Agreement or the prior year's certification,as the case may be.
B.Citi,its parent Citigroup Inc.and subsidiaries as "Additional Insured"should be listed on any
General Liability,Auto Liability,and Umbrella Liability coverage.In addition,Cii should be named as
"Certificate Holder"on the Certificate of Insurance.Insurance Carrier shall notify Citi thirty (30)days
prior to any non-renewal or cancellation of the Insurance required.
C.Citi's acceptance of delivery of a Certificate of Insurance that does not conform to the
requirements herein shall not relieve Deco of its obligations to provide applicable insurance conforming
to the requirements herein.Failure to comply with the insurance requirement above shall constitute a
material breach of this Agreement.
A.Each Party shall treat as confidential and shall not copy or duplicate or disclose to any person or
organizntion any information obtained from the other Party,either directly or indirectly,that is marked as
confidential or which should be reasonably understood to be confidential ("Confider:ial Information")
and will only use or reproduce such Confidential Information (i)to perform its obligations under this
Agreement,(ii)as required by the order of any court or any government agency with proper jurisdiction
(and provided it gives notice to disclosing Party and an opportunity to object to the disclosure of such
Confident.al Information)or iii)to receiving Party 's attorneys,accountants or other representatives as
necessary in the performance of their duties and in the case of Deco,to the cities of Miami and Miami
Beach solely to the extent required under the agreements between Deco and such cities.Confidential
Information shall not include ({I)information that was in the public domain through no fault of the
receiving Party at or subsequent to the time it was communicated to the receiving Party,(2)inforution
13
1/7/2014
that was rightfully in the receiving Pary's possession free of any obligation of confidentiality at or
subsequent to the time it was communicated to the receiving Party by the disclosing Party and (3)
information developed by receiving Party independently or and without reference to information provided
by the disclosing Party hereunder.Without the disclosing Party's prior written consent and other than as
set forth above,receiving Party may not disclose Confidential Information to any third party.The
receiving Party shall trea:Confidential Information with at lcast the same degree of care that it treats its
own confidential information and shall exercise reasonable precautions to prevent disclosure of
Information to unauthorized parties.If the receiving Party becomes aware of any threatened or actual
violation of the disclosing Party's obligations with respect to Confidential Information,the receiving
Party shall immediately notify the disclosing Party thereof and the receiving Party will,and will assist the
disclosing Party with its effort to,cure or remedy such violation.
B.'This Agreement and the Parties'dealings under this Agreement,including any payments made by
Citi,arc confidential and shall not he disclosed by either Party without the prior written consent of the
other Party (which may he by e-mail),unless such Party is under a legal obligation to disclose such
information or such disclosure is to such Party's advisors or for purposes of enforcement.In such event,
the Party with the obligation to so disclose shall make reasonable efforts to provide the other Party with
adequate notice of the required disclosure.
Xll.Miscellaneous.
A.Governing Law_&Jurisdiction.All matters affecting the interpretation or performance of this
Agreement and the rights of the Parties hereto shall be governed by and construed in accordance with the
laws of the State of New York,exclusive of conflict of laws provisions.Any action or proceeding
commenced pursuant to this Agreement shall be commenced in a federal or state court in the State of New
York,County of New York.Both Parties hereby irrevocably waive trial by jury.
B.No Subcontractors.Deco may not engage any third party to perform any of its obligations
hereunder without Citi's prior written approval.Notwithstanding such approval,Deco shall remain
responsible for the performance of ail obligations hereunder and for the acts or omissions of any its agents
or subcontractors.
C.Assignment.Neither patty shall assign this Agreement,in whole or in part (by assigning any
right or delegating any duty under this Agreement),voluntarily or involuntarily,by operation of law,or in
any other manner,without the other party's prior written consent(which may be by e-mail or facsimile)
which may be withheld in such party's sol discretion,provided,however,that Citi may assign this
Agreement to an affiliate or subsidiary capable performing hereunder upon notice,but without consent,to
Deco.Except for such assignment by Citi,any purported assignment or delegation by a party without the
other party's prior written consent is void.Subject to the foregoing,all of the terms and provisions of this
Agreement shall be binding upon and inure to te benefit of and he enforceable by the successors and
permitted assigns of the parties.
D.Force [ajeure.la the event that Deco is unable to perform its obligations under this Agreement
as a result of an Act of God or of the public enemy,act of the goverment either in its sovereign or
4
7/7/2014
contractual capacity,suspension or cancellation of the Program,civil commotion,fire,or flood,each of
which must have a prolonged impact on the use of bicycles in the cities of Miami and/or Miami Beach
(each an "Event")for one hundred twenty days ((20),then Citi may,at its option either extend the Term
for a period equal to the period that Deco was unable to perform its obligations or,if the impact exceeds
one hundred eighty days (180),terminate this Agreement.In addition,if as the result of such Event,Deco
is unable to meet the Program metrics in Exhibit C,then Citi shall also have the right to extend the Tcrm
for a period equal to the period of the Event.Notwithstanding the above,this Section XII (D)shall not
relieve the Parties of any obligations relating to confidentiality,information security or non-infringement
under this Agreement.
E.Relationship of thg_Parties.Deco shall perform services as an independent contractor,and
nothing contained herein shall be deemed to create any association,partnership,joint venture or
relationship of prineipnl and agent between the Parties hereto or any affiliates or subsidiaries thereof,or to
provide either Party with the right,power or authority,whether express or implied,to creatc any such
duty or obligation on behalf of the other Party.Deco also agrees that it will not hold itself out as an
affiliate of,or partner,joint venturer,co-principal or co-employer with Citi or any of is pareat
corporations,affiliates or subsidiaries by reason of this Agreement and that Deco will not permit any of
its employees,agents or subcontractors to hold themselves out as,or claim to be,officers or employees of
Citi or any of its parent corporations,subsidiaries or affiliates by reason of this Agreement
F.Role of_the Cities of Miami &Miami Beach.Pursuant to its agreements with the cities of Miami
and Miami Beach,copies of which has been provided to Citi,Citi acknowledges and agrees that the such
municipalities may have approval rights regarding the Program I.ogo,Program Name,colors of the
bicycles and stations,and station formats.Deco shall be responsible for securing any necessary approvals
which shall not bc unreasonably withheld.
G.Waiver.This Agreement constitutes the entire agreement of the Parties and supersedes all prior
representations,proposals,discussions,and communications,whether oral or in writing,relating to the
subject matter hereof.This Agreement may be modified only by a written instrument signed by both
Parties.None of the provisions of this Agreement may be waived or modificd,except expressly in
writing signcd by both Parties.However,failure of either Party to require the performance of any term of
this Agreement or the waiver by either Pary of any breach shail not prevent subsequent enforcement of
such term nor be deemed a waiver of any subsequent breach.
H.Syerability.Each and every paragraph,sentence,tern and provision of this Agreement shall be
considered independent,reasonable,and severable.If a court of competent jurisdiction or arbitrator(s)
makes a final determination that any paragraph,sentence,term or provision of this Agreement is
unreasonabie,invalid or unenforceable,the remaining paragraphs,sentences,terms and provisions of this
Agreement shall be unimpaired and the unreasonable,invalid or unenforceable paragraph,sentence,term
or provision of this Agreement shall be deemed replaced by a paragraph,sentence,term or provision that
is valid,reasonable and enforceable and that most closely approximates the intention of the Parties with
respect to the unreasonable,invalid or unenforceable term or provision,as evidenced by the remaining
valid eaforceable terms and conditions of this Agreement.
15
7/7/2014
I.Audit.At least once during each year of the Term Citi,its internal or extemal auditors shali be
entitled to audit Deco's books and records as related to the Program and Deco's expenditure of the
Equipment Fees and advances.In the event that Citi finds that Deco has overstated such expenditures or
misused such Equipment Fees or advances,Citi shall be entitled to terminate this Agreement and receive
a refund of such Equipment Fees and/or advances.
J.Publicity.Neither Party shall issue any press release or public announcement conceming this
i\greement,or identifying,mentioning or using the name of the other Party,without obtaining the prior
approval of the other Party hereto,which approval shall not be unreasonably withheld,conditioned or
delayed,provided,however,that Citi shall be entitted to include the Program in any list of its
sponsorships.
K.Notice.Unless otherwise specified herein,all notices,requests,demands,payments,consents and
other communications hereunder shall be transmitted in writing and shall be deemed to have been duly
given (i)when hand-delivered,(ii)upon delivery when sent by express mail,courier,overnight mail or
other overnight or next-day delivery service,(iii)when received when sent by facsimile or via email,
provided that such facsimile or email is electronically confirmed to have been received,or (iv)three (3)
days after the date mailed when sent by registered or certified United States mail,postage prepaid,return
receipt requested,or when deposited with a public telegraph company for immediate transmittal,charges
prepaid,addressed as follows:
Cit'Citibank,N.A.
Attn:Elyssa Gray
One Court Square
Long island City,NY 120
With a copy to:Citi Legal Department
Attn:Jane G.Pollack or Anne Robinson
One Court Square,41st Floor
Long Island City,NY ILL2O
Deco:4I NE I7 TER,MIAMI,FL 33132
Citi or Deco may change its address by giving written notice of such change of address to the others.
L.Survival.The following provisions shall survive expiration or termination of this Agreement:
Sections VI(B)2),V(II(BA),V!II(B)UT),IX -XII.
M.lntirg_Agreement.This Agreement,including ail exhibits,schedules,and other attachments to
this Agreement as well as documents specifically referenced in this Agreement,constitute the entire
expression of the Parties'agreement with regard to the subject matter of this Agreement.Ali prior and
16
7/7/2014
contemporaneous negotiations and agreements between the parties with regard to the subject matter of
this Agreement are expressly superseded by this Agreement.
'./.~ounterparts.This Agreement may be executed rn one or more counterparts,each ofwh1ch shaj
be deemed an original,but all of which taken together constitute one and the same instrument.Delivery
of an executed counterpart of a signature page to this Agreement by facsimile or other electronic /l
tr:111sm1ss1on shall be effee11ve as delivery of a manually executed original counterpart of this Afe,ee i
rN WITNESS WHEREOF,the Partres hereto have executed this Agreement as oithc d~Le ~wr'e
above./.I
CITIBANK,DECOBIKE,LLc ,/94°'•
Print ;\lame:•--i 1 ;7Kotrorep
17
By
7/7/2014
Exhibit A
Sponsorship Benefits
In addition to the benefits outlined n Sections l and !I of the Agreement,Deco shall provide to Citi the
following sponsorship benefits during each year of the Tern
L.Status,Rights &Exclusivity
Citi will be the exclusive title sponsor of the Program
Cii colors as selected by Citi shall be incorporated into the branding of the Program,subject
to approval by the cities of Miami and Miami Beach
•During each year of the Term.Deco will provide Citi with a mast favored discounted rate on
all passes and memberships 1 the Program nd will give Citi $7500 of free Program
memberships in the form of passes,member access cards or key fobs to be distributed by Cit
in its sole discretion,but in compliance with the terns and conditions of the Program.
•At least once during each year of the Term,Deco shall allow Citi to create an email that may,
in Citi's sole discretion,include messaging about Citi products and services,that Deco will
deploy to the Program member hase (cxeluding members who have opted cut from receiving
marketing messages)
2.Cii Branding Visibility on Bieyeles
Program Name and Program Logo on the fenders,frames,and baskets of all of the Program
bicycles.the exact placement of which shall be mutually agreed upon by the parties.Such
Programs Name and Program Logo shall appear on all Program bicycles (mininum 1 700).as
of the Program Re-Launch D)ate.Deco will add the Program Name and Program L.ogo to all
Program bicycles that it adds t the Program.In addition,in the event that Deco orders new
bicycles,such bicycles shall ot include the name of the manufacturer of such bicycles on the
5ea!s.
•Cati shalt choose color of bikes and other graphic design elements.subject to approval by
cites of Miami and Miami Beach.Any changes to the design elements of the Program bikes,
ineluding but not limited to any proposed addition of any logos or other elements shall be
subject to Cit's approval.As of the Program Ke-Launch Date,the 700 downtown Miami area
Program bicycles shall all include design elements chosen by Cit.Dy January 30,2015 the
!900 Miami Beach Program bicycles shall ull include design elements chosen by CCiti and
there should no longer be any Program bcyules that do not include design elements chosen
by Citu.
•Cai responsible for paying for the stickers on the bicycles which need to be rebranded.Such
costs shall not exceed 60,010 00.
3.Citi Branding Visibility on Station Kiosks,Station Docks &o ther
Program Logo on all station kiosks with the placement to bc mutually agreed upon by Citi
ui Deco The parties acknowledge and aree that Deco will use best effort to obtain
permissions to include Citi branding on any station kiosks or docks which are placed on
private property,provided,tuwever,that the Deco shail use best efforts not to place stations
on prate property and shall work with Citi to determine an acceptable location for a station
dock or kiosk if such kiosk or dock needs to be placed on private property The parties
acknowledge and agree that currently there is only one station o private property
18
7/7/2014
•in the Miami Beach area,Citi shall have the main 22'x 48'ud panel at 40 station kiosks on
which Cii commercial advertising can appear.The Program Name and Program Logo will
appear on all of the stations kiosks (minimum of !00)in the Miami Beach area.In the event
that Citi advertising cannot appear on an ad panel,o information on ay commercial entity
(other than Deco)shall be included on such ad panel;rather,the ad panel shall consist of
Program,city or tourist related information.In addition,the Program Logo will appear on the
rail lockiag docks and the sations kiosks and docks will be Citi blue (or feature Citi blue
decals).As Deco adds station kiosks,Citi will receive the same benefits on such kiosks.
•In the downtown Miami area,Cit.shall have ali of the ad panels at every station kiosk
(minimum 70)The main panel shall be 23"W x 58"Hand the side panels shall be 16"W
58"H.One side pauel shall be used for the bikeshare station network map on all kiosks.As
Deco adds station kiosks,Citi will receive the same benefits on such kiosks
•Program Logo on al!member access cards.Program maintenance trucks,rebalancing trailers,
Program uni;oms.city makes,and marketing collateral.
4,Marketing and promotions
•Deco will consult ad cooperate with Citi in devising and executing the marketing plan and
al}promotional efforts in support of the Program
•Deco will consult and cooperate with Cti on any and all third-party collateral,sponsorships
and promotionl activities in support of the Programn or using the Program Name or Logo.
Specifically,Citi shall have the right to review and approve all such collateral,sponsorships
and promotional activities.Such approval shall not be unreasonably withheld.
•Deco will prominently display the Program Logo on all promotional campaign material for
the Program,including in a!l social media posts,press releases and narketing collateral
•Deco will also prominently display the Program Logo on any materials associated with
community and bicycle safety programs
•In the event Deco sells advertising space an the Program website and'or Program mobile
application,Deco shall provide Citi with ad inventory on such properties free of charge and
will nor sell ad space to a third party that is no approved by Citi.
•Dcco will undertake at a minimum,the following marketing efforts in support of the
Program:
o Safety,education and community outreach campaign,including dozens of cvents in
many areas of the city
o Email blast to 4,300 city staff members regarding the Program and the Program Re-
Launch
o Program launch event with national and global media attention
o Social media activation starting I month before Program Re-Launch and ongoing
o Events,tabling,contests,ambassadors and programs to drive increase in membership,
ridership and community ongoing.
o Outreach to tourists,both prior to visit to iari and Miami Beach and during their
stays
o Facilitate cross promotional opportunities with hotels,at community events (i.e.,Aids
Walk,Relay for Life.Bike Miami Days,and the Winter Party)
5.Public relations
Citi shall have the right to have Citi designated spokesperson participate in all media events
that Citi considers to be key media.
19
«a
7/7/2014
w Citi will receive a credit as the exclusive title sponsar in li press releases or other controlled
media in a form to be mutually approved by the Parties.
•Citi and the Program Nams and Program Logo will be featured in all official Program press
announcements and at all Program Events
»Deco will use best efforts to arrange for a press conference to announce the sponsorship with
the participation of the mayors of the cities of Miami Beach and Miami
»Deco will conduct ongoing press outreach concerning the Program
6.Safety
•Deco,together with the cities of Miami and Miami Beach,will execute a variety of programs
designed to bring attention to bicycle safety and helmet usage.Deco will consult with Citi
regarding the execution of such Programs and provide Citi with the opportunity to participate
in such Programs,including but not limited to through helmet giveaways at Citibank branch
locations.
»Deco will place safety messaging prominently on the website,emails and newsletters to
members,and on the station kiosks
Deco will continue to conduct bicycle safety workshops,bike safety summer camp programs,
and its work with the Soath Florida Bike Coalition and will provide Citi with the opportunity
to participate in these programs
•Deco will continue to provide free helmets to all annual subscribing Program members at
Deco office location(s)and,in Citi's discretion.Citi may also allow Deco to provide such
helmets at Citi branches in the immediate area
20
7/7/2014
Exhibit B
SLAA
All Service Level Agreements are assessed monthly unless otherwise specified.
Service Level
Agreement
Every Station,as
well as all
Bicycles
1 Slalion &i present,isBicycleIcleanedorcleaningwipeddown at
I least once every
I4davs.
ti,'Gile
receives n full
Bicycle mechanical
Maintenance ,check at least
Ref.Name
2
Measurement
Tool(s)
I Performance!Level Units
Liquidated
Damages
Per Unit
Deco databases
'once every
calendar month,
Dec databases
<98%Per Station
per Day $50
<100%Per Bicycle
per Day $10
Stations must be
cleaned within
48 hours of
discovery or
notification.
Cleaning
includes,but is
I
not limited to
wash or wipe-
down,graffiti,
scratchiti and
sticker removal..._-->-------+--------•-----Operator must
clean Bicycles
or remove them
from the system
within 96 hours
of discovery or
notification.
Cleaning
includes,but is
not limited to
wash or wipe-
down,graffiti,
-l1ifatchiti and
3
Station
cleaning
after
discovery or
notification
4
Ii
Bicycle
cleanig
after
discovery ur
notification
Deco databases.<90%
Per instance,
per 24 hour
period
beyond {
deadline i
$50
Deco databases <90%
Per instance,
per 24 hour
period
beyond
deadline
$10
21
7/7/2014
-~------o
Service Level Measurement Performance LiquidatedRef.Name Agreement Tool(s)Level Units Damages
Per Uoit
sticker removal II I
----·-IIStationsthatare
not marked for I!repairs,Iundergoing
repairs or
temporarily
5 Station removed from Deco 95%Per hour per $50Uptimecirculationmustdatabase(s)station
be fully
functional
including all
communications
and transaction
sstems
Website must be
fully functional.
This includes
but is not limited
to the ability to:
process
transactions.
Website provide real-Deco6availabilitytimedataanddatabase(s)-97%Per hour $50
map;and
provide
subscriber
account
information,
such as rental
histories.
Central TRe Cenirf
7 Computer Computer Deco <97%I Per 'out $50SystemSystem1mustbedatabases)IoutagefuilyfunctionalI '"u;cyc~,
The operator
will ensure that Deco8Bicyclefleetallbicycl"s that LJatubu~e(s)<95%$15
are not removed
from circulation .'22
7/7/2014
Ref.Na
9 Op
Do
10 Die
reb
-·-I LiquidatedServiceLevelMeasurementPerformance'me Units DamagesAgreementTool(s)Level--·Per LUaitforrepair,o
replacement or
cleaning are in
circulation as
agreed upon by
--all parties.
Deployed Docks .
not marked for
repair or
replacement
erational must be fully Deco
els functional.This database(s)<95%Per Dock 510
includes but is
not lirited to I
the ability to
__J_
rent und receive
---Bicycles
Bicycles shall be ---
redistributed Measurement
ycle throughout the Deco 1HD method to be TBDalaneingsystemHasdatabase(s)mutually
necessary to agreed upon
--meet demand.
·-
Deco shall be exempt from the SLA requirements in this exhibit under the following circumstances:
(a)Damaged or Stolen Stations and Components:In the event a sration is damaged by acts of
god or multiple stations arc damaged at the same time as a result of an event beyond the
direct control of Deco,Deco shall be excused from complying with SLA terms for such
stations,bikes and components,provided,however,that Deco takes all necessary steps to
ensure that riders cannot access such stations,bikes or components until they are fixed and
provided further that such time Deco is excused is less than thirty (30)days unless further
delay is the result of a Force Majcure Event under the Agreement or the result of a delay by
the municipality or other governing body.Deco shall use best reasonable efforts to replace or
repair such equipment quickly.It is agreed by the parties that in the event equipment must be
ordered or removed for repairs,there will be a corresponding downtime for such equipment
of which Deco will not be penalized.
(b)Tempo rary Removal or Relocation of Stations:During the Term,stations may be moved or
removed temporarily for repairs,upgrades (including tor the rollout of the new equipment as
set forth in the Agreement)and/or to make way for construction projects (such as repaving or
road infrastructure work).Deco shall be exempt from complying with SLA terms for such
stations and shall not be penalized,provided,however,that Deco shall use all commercially
21
7/7/2014
reasonable effort to have any station that is ctfected by such construction project relocated to
a different area during the project and shall aiso notify Citi of such removal.
(c)3"Party Communication Providers:In the rare event a cellular data service provider
(such as AT&T or T-M obile for example)experiences an issue that impacts that data
comm unication an d perfo rm an ce of Deco's stations,Deco shall be exempt from the SLA
during such period and shall not be penalized.Deco shall notify the commun ication
provider immediately upon identifying and attempting to troubleshoot the issue.Deco
will notify m embers (via email or social media)and Citi of any impact on the operation
of the system if it is likely to persist for more than two hours.
7/7/2014
Exhibit C
Program Metrics
The utilization metrics for the Program shall be as follows:
•Contract Years I&2-An average af 2 Rides (defined below)per day per bicycle (based oa the
Program fleet levels set forth in the Agreement)
•Contract Years 3,4&5--Any average of 2.5 Rides per day per bicycle (based on the Program
fleet levels set forth in the Agreement)
No late first quarter of the second contract year of the Term,Deco would perform a formal ridership
analysis to determine the degree of utilization of the Program over the first year of the Initial Term
In the event that the review demonstrates that the degree of utilization of the Program during the first
contract year of the Term is less than an average of at least two Rides (as defined below)per day per
bicycle has not been met,then Deco and Citi will come to mutually agreeable revised marketing and
public relations commitments for Deco.which may include increasing the financial resources and
manpower committed by Deco and related to those commitments,including but not limited to
providing Citi with additional media placements,increasing public relations activities,and holding
additional local promotions with Miami and Miami Beach agencies.After the initial audit,Deco will
conduct quarterly ridership analyses and continue the revised marketing ard public relations actions
until the agreed-upon metrics have heen met for at least two consecutive quarters.The parties
acknowledge and agree for the purposes of making such calculations the limited time periods during
which new docks were installed throughout Miami Beach and locks were changed out throughout
Miami Beach will not be counted.Once such metrics have been satisfied for two consecutive
quarters such reviews will be conducted at least once annually based on the metrics set forth above
for the remainder of the Initial Term,unless any review shows that such metrics have not be satisfied
in which case a review shah!be conducted for the following quarter.In the event that the metrics are
not met for two consecutive quarters,Citi shall have the option to terminate the Agreement as set
forth in Section VIKB3).
25
I
7/7/2014
Cit Bike name
Citi Bike Design logo
Blue Wave Design
Citi
Citi with Are Design
Citibank
Exhibit D
Citi Marks
26
7/7/2014
D eco B ike N am e and Logo
ecoBike Bicycle Design
Exhibi:E
Deco Marks
27
1/7/2014
Exhibit F
Program Membership Pricing Ranges
o Standard Monhy Bike Pass Subscription (unlimited 30 Min rides):$15-$18
Deluxe Monthly 3ke Pass Subscription (unlimited 60 Min des}:$25-$30
o Annual Pre.Pald Bike Pass (unlimited 30 Min rides):$150-$160
o 30Mn:$4-$6
o 1Hour.$6-$9
o 2Hour:$10-$13
o 4Hour$18$22
o 10ay:$24$30
•Deco may modify its prices in accordance with the ranges noted above upon providing ten [A0)days prior
notice to Citl.Deco shall be permitted to ofter other various short-term passes not listed here at its
discretion,but all subject to any requirements set forth in the Agreement.Far the avoidance of doubt,Deco
shall be able to offer discounts of of tte prices below in its discretion,provided that it gives notice to Citi and
that such discounts are not related to method of payment far such passes.
28
Exhibit 16.2
Advertising Locations for the Bicycle Basket Advertising Program
and Kiosk Advertising Program
Active Station #:
107 (1)
122 (2)
124 (3)
128 (4)
136 (5)
145 (6)
147 (7)
148 (8)
149 (9)
157 (10)
159 (11)
161 (12)
163 (13)
164 (14)
166 (15)
167 (16)
168 (17)
169(18)
170(19)
171 (20)
172(21)
173 (22)
174 (23)
178 (24)
181 (25)
182 (26)
184 (27)
187 (28)
202 (29)
203 (30)
205 (31)
211 (32)
212(33)
215 (34)
220 (35)
221 (36)
302 (37)
305 (38)
306 (39)
308 (40)
Location:
2nd Street &Collins Ave
Ocean Drive &15th Street
7th Street &Parking Garage
Michigan Ave &5th Street
9th Street &Washignton Ave
14th Street &Alton Rd
Washington Ave &13th Street
13th Street &Collins Ave
14th Street &Collins Ave
15th Street &Alton Rd
15th Street &Washington Ave
15th Street &Collins Ave
Lincoln Rd &James Ave
Washington Ave &17th Street
Drexel Ave &Lincoln Rd
Pennsylvania Ave &Lincoln Rd
Euclid Ave &Lincoln Rd
Meridian Ave &Lincoln Rd
1666 West Ave
Jefferson Ave &Lincoln Rd
Michigan Ave &Lincoln Rd
Lenox Ave &Lincoln Rd
Lincoln Rd &West Ave
17th Street &Convention Center Dr
17th Street &Collins Ave
18th Street &Collins Ave
19th Street &Dade Blvd
West Ave &20th Street
Miami Beach Dr &22nd Street
23rd Street &Collins Ave
24th Street &Collins Ave
35th Street &Collins Ave
40th Street &Collins Ave
Chase Ave &41 st Street
Collins Ave &44th Street
44th Street &Collins Ave
Collins Ave &5500 Blk
67th Street &Collins Ave
69th Street &Collins Ave
Byron Ave &71 st Street
45
Docusign Envelope ID:F328520B8-9D34-46FA-B830-7F548152ACB9
EXHIBIT 27
Human Trafficking Affidavit
In accordance with Section 787.,06 (13),Flori&a Statutes,the undersigned,on behalf of
Concessionaire hereby attests under penalty of perjury that Concessionalre does not use coercion
for labor or services as defined in Section 787.06,Florida Slalutes,entitled "Human Trafficking".
l understand that l am swearing or affirming under oath to the truthfulness of the claims made in this
affidavit and that the punishment for knowingly making a false statement includes fines and/or
imprisonment.
The undersigned ls authorized to execute this affidavit on behalf of Concessionaire.
CONCESSIONAIRE:
9%%"E a_"cororoon.
41 ne 17th ter Miami fl 33132
N rrlll Ricardo Pi erdant PRESIDENT[lg {d,(Address)
Stale of
County of
Florida
Miami dade
The foregoing instrument was acknowledged before me by moans of [l physical presanco or l
onine notarization.mhts Q/"aay ot anuC,2026 by
huordo kid@ nt.as Preside )t
[)eOfl.LA.,a L'corporation,known to me to be the
person described hereln,or who produced .-s identiflcalion,
and who didtdld not take an oath.
of
NOTAFL/41 (iii.O ICA GARCIAt"i."rn.~\llotary Publlc -State of Florida
izl:;j commlsten #HH 427053-%$%l a».sic iii.o
snced through National Notary Assn.
(Print Name)
My commission explrss
46
.,'
RESOLUTION NO 2023-32803
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH,FLORIDA,ACCEPTING·THE RECOMMENDATION OF THE
FINANCE AND ECONOMIC RESILIENCY COMMITTEE,AT ITS SEPTEMBER
22,2023 MEETING,AND OF THE CITY MANAGER (AS SET FORTH IN THE
CITY COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION)
AND WAIVING,BY 5/7TH VOTE,THE FORMAL COMPETITIVE BIDDING
REQUIREMENT IN SECTION 2-367(E)OF THE CITY CODE,FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY,AND AUTHORIZING
THE CITY MANAGER TO NEGOTIATE AND EXECUTE A NEW CONCESSION
AGREEMENT WITH 'DECO BIKE;LLC FOR THE IMPLEMENTATION,
MANAGEMENT,AND OPERATION OFA SELF-SERVICE BICYCLE SHARING
PROGRAM,FOR A TERM OF FIVE (5)YEARS,COMMENCING ON JANUARY1,2025 AND EXPIRING ON DECEMBER 31,2029,BASED UPON THE
ESSENTIAL TERMS'SET FORTH IN THE TERM SHEET,ATTACHED AS
EXHIBIT "4"TO THE CITY COMMISSION MEMORANDUM ACCOMPANYING
THIS RESOLUTION;'AND FURTHER'APPROVING THE TERMS OF THE
SPONSORSHIP AGREEMENT BETWEEN DECO 'BIKE AND CITIBANK,
ATTACHED AS EXHIBIT"2 To THE C iTY COMMISSION MEMORANDUM
ACCOMPANYING THIS RESOLUTION,AUTHORIZING THE OPERATION OF
THE PROGRAM UNDER 'THETITLE'SPONSORED NAME OF "CITI BIKE".
-··°-:.?•5 '.1 «.•
'
•s t .'•WHEREAS,on July 16,2009,the City entered into an agreement with Deco Bike,LLC
("Deco Bike")in response to RFP 44-07/08.forthe delivery and operation ofa self-service bicycle
rental fleet for public use,to be stationed in the public right-of-way (the "Agreement");and
WHEREAS,the Agreement required Deco Bike to implement a program which enabled
the public to self-rent bicycles from any number of locations and return them to another location,
on a 24-hour,365-day per year basis (the "Program");and"
·•..o .+...ET .:..g •...
WHEREAS,it becameviderit early or'hat without intervention by the City,eitherthrough
a contract term modificationor additional revenue source,'the'Program would not achieve a return
of capital or modest profit to Dec "Bike,or allow'the'recovery ·of the City's forgone parking
revenues;and
WHEREAS,on July 18,2012,the Mayor and City Commission adopted Resolution No.
2012-27975,approving Amendment No.1 to the Agreement;said Amendment (1)extending the
term of the Agreement through September 30,2023,an additional ten (10)years;(2)increasing
the operational maximum number of bicycles to 1,100 bicycles;(3)approving certain advertising
and sponsorships;(4)providing for a revenue sharing provision by increasing the exemption from
City revenue share from $1,000,000 to $1,500,000 during the first year of the new term,declining
at a rate of $250,000 per year to $0in year seven (7)of the revised term;and (5)adding a Windfall
Provision,which provided for the opportunity to recover the waived revenue;and
••...•'•••••·;;_••.•,•••'·,'.::.':-•.-•'~.:·.:.,:':·~•••',•••••,l ,.·••:••,.·;....._--•.::.,,._•'i •·,'.
WHEREAS,on May12,2015,he'City and'Deco Bike,executed Amendment No.2 to the
Agreement,approving the sponsorship with'Citibank'to operate under the Program name of "Citi
Bike",providing for the sharing of the advertising revenue generated from the Citibank
°·
Docusign Envelope ID:F328520B-9D34-46FA-B830-7F548152ACB9
EXHIBIT 29
Prohibltlon Against Contracting with Foreign Countrios of Concorn Affidavit
In accordance with Section 287.138,Florida Statutes,incorporated herein by reference.the
undersigned,on behalf of Concessionaire,hereby attests under penally of perjury thal
Concessionaire dogs not meet any of the fallowing criteria In Paragraphs 2(a}(c)of Section
287.138,Florida Statutes:(a}Concessionaire is owned by a government of a foreign country of
concern;(b)the government of a foreign country of concam has a controlling interest in
Concessionaire;or (c)Concessionaire is organized under the laws of or has lts principal placa of
business in a foreign country of concamn.
I understand that I am swearing or affirming under oath,under penalties of perjury,to the
truthfulness of the claims made in thls affidavit and that the punishment for knowingly making a false
statement includes fines and/or imprisonment.
The undersigned is authorized to execute this affidavit on behalf of Concessionaire.
CONCESSIONAIRE:
Decobike LLc LLC C[fa{Df1,
17th NE ter miam fl 33132
Name/Tile.Ricardo Pierdant PRESIDENT (Address)
State of
County of
Florida .
Miami dade
The foregolng instrument was acknowledged before me by means of [J physical presence or ]
oiine notarzgloo,hle l day ot ..Jauy]_.,2023 yhaloPeri@not..as Birsdo±.o
Dgoixe LC ,a LC corporation,known to me to be the
arson described herein,or who produced ..-.asidentification,
and who did/did not taks an oath.
(
(Signature}'
Monica age
(Pint Name)
My commission expires:
Giii~..MONICA GARCIA$pi;oary Pol -·sate of Flora32EiS}commtsson +8H 427093%?=5%y Comm.Expires Jul 27,2027
3orded through National Notary Assn .
47
...Sponsorship Agreement,.as part of the Bicycle Basket Sponsorship Program,the Kiosk
Advertising Program and naming rights;and
....
WHEREAS,on December 11,2019,the Mayor and City Commission adopted Resolution
No.2019-31105,authorizing the City Manager to negotiate an amendment to the Agreement.
between the City and Deco Bike for the provision of a docked electric-assisted bicycle sharing
pilot program.("Pilot Program"),subject to the City Commission's approval of the final amendment;
and
..W HEREA S,due to the COVID-19 pandemic,bike service was interrupted,and on June
23,2021,the Mayor and City Commission adopted Resolution No.2021-31743,approving
Amendment No.3 to the Agreement;said amendment approving the implementation,
management and operation of a one-year Pilot Program for the operation of up to 100 docked
electric assisted bicycles Citywide within the existing concession areas;and
W HEREA S,on May 17,2023,the Mayor and City Commission adopted Resolution No.
2023-32605,approving Amendment No.'4 to the Agreement;said amendment extending the
Agreement on a month-to-month basis,for a period not to exceed fourteen (14)months,or until
such time as the City Commission awards a contract pursuant to a new .competitive solicitation
for the City's Self-Service Bicycle Sharing Program,whichever occurred first;and.........•..•..•.....••..•.-.....
W HER EAS,at the September 13,2023 City Commission meeting,Vice-Mayor
Richardson sponsored a referral item(C4 P)to the Finance and Economic Resiliency Committee
(FERC)to discuss the status of the current Deco Bike Agreement,including contract period,plans
for renewal,plans for a solicitation,contract revenues and other related matters;and
W HEREA S,at the September 22,2023 Finance and Economic Resiliency Committee
("Committee")meeting,Deco Bike requested a five (5)-year extension to their Agreement,based
on various factors,including the financial success of the Program,benefits to the City,and the
value of the Citibank sponsorship;and''
........
.--W HEREA S,the Committee unanimously recommended the five (5)-year extension,which
would begin on January 1,2025,the end of the current extension,and expire on December 31,
2029,and further recommended that the new contract include a minimum guarantee and a public
benefit,which would serve to incentivize residents to use the Program;and
++•+,•+
W HEREA S,based upon the recommendation of the Committee,the City Administration
and Deco Bike have negotiated the essential terms of a new five-year agreement,summarized in
the proposed Term Sheet,with the financial terms including the addition of a Minimum Guarantee
payment and a new public benefit contribution,along with a City contribution,as follows:
..,·.•....•........
•Concession Fees to the City equal to the greater of (1)the Annual Minimum Guarantee
payment (MG),in the amount of $380,000.00;or (2)the annual Percentage of gross
sales receipts (PG)payments (paid monthly)received from Deco Bike's operations
equal to 12%of the total gross sales receipts under $3.million and 15%of gross sales
receipts equal to or greater than $3 million for a contract year;and
......
In addition to the membership plans offered under the current Agreement,Deco Bike
has agreed to provide three (3)30-minute free rides per month for Miami Beach
residents who are not Citi Bike members,or .one (1)free month for every twelve
.....
months of membership for established customers of the Program ("Monthly Incentive
Program")in order to incentivize use of bicycles as a transportation alternative.Deco
Bike will cover the cost of the Monthly Incentive Program up to the total amount of
$35,000.00 and the City will cover .the cost exceeding $35,000.00;and
.....••:-•.••·:..·...••..•..:-.·-.·:....·
WHEREAS,under the proposed Term Sheet,Deco Bike will continue to provide the
membership plans offered under the current Agreement:a membership option for residents of
$20.00 per month,which provides for unlimited 30-minute rentals,with a three-month minimum
commitment,to ensure the benefit flows to the residents,instead of tourists;a deluxe.monthly
plan that provides unlimited one-hour rentals for an extra $5.00 per month;and an employee
rental plan at $99.00 annually,with unlimited 30-minute trips;and···
WHEREAS,the Program under the new agreements shall continue to operate initially
with 1,100 bicycles,of which 100 will be electric-assisted bicycles ("e-bikes");however,the City.
Manager will have the authority to increase the number of e-bikes to a number that is up to 200,
thereby increasing the total number of bicycles in the fleet to a number that is up to 1,200;and
WHEREAS,Deco Bike has demonstrated to be a good partner to the City by providing
a reliable bicycle service which has been used for leisure,exercise and the transportation needs
of the community;and '
WHEREAS,in FY 2012,the Agreement provided revenues to the City of $279,457.00;
in FY 2022,revenues rose.to $687,061.00,including advertising revenues from the Citibank
sponsorship payments;and for FY 2023,revenues to the City were approximately $700,000.00
through a combination of Concession and sponsorship fees;and
.....
WHEREAS,the new agreement is anticipated to generate a similar revenue stream
on.an annual basis;and''
WHEREAS,Deco Bike's ability to secure the Citibank sponsorship has served to
make the Program profitable,without the need for the City to subsidize the Program,as is
typical of these bicycle sharing programs in out-of-state municipalities;and •
WHEREAS,based upon the longstanding and satisfactory performance record of.Deco
Bike,including their ability to generate revenues for the City,the City Manager recommends
accepting the recommendation of the Committee,at its September 22,2023 .meeting,and
-waiving,by 5/7 vote,the formal competitive bidding requirement in Section 2-367(e)of the City
Code,finding such waiver to be in .the best interest of the City,and authorizing the.City Manager
to negotiate and execute a new Concession Agreement with Deco Bike,LLC,for the
implementation,management,and operation of:the Program,for a term of five (5)years,
commencing on January 1,2025 and expiring on December 31,2029,based upon the essential
terms set forth in the Term Sheet,attached as Exhibit "1"to the City Commission Memorandum
accompanying this Resolution;and further approving the terms of the Sponsorship Agreement.
between Deco Bike and Citibank,attached as Exhibit "2"to the City Commission Memorandum
-accompanying this Resolution,authorizing the operation of the Program under the title sponsored
name of "Citi Bike".·
NOW,THEREFORE,BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH,FLORIDA,that the Mayor and City
Commission hereby accept the recommendation of the Finance and Economic Resiliency
Committee,at its September 22,2023 meeting,and of the City Manager (as set forth in the City
Commission Memorandum accompanying this Resolution)and waive,by 5/7"vote,the formal
competitive bidding requirement in Section 2-367(e)of the City Code,finding such waiver to be
in the best interest of the City,and authorize the City Manager to negotiate and execute a new
Concession Agreement with Deco Bike,LLC for the implementation,management,and operation
of a Self-Service Bicycle Sharing Program,for a term of five (5)years,commencing on January
1,2025 and expiring on December 31,2029,based upon the essential terms set forth in the Term
Sheet attached as Exhibit "1"to the City Commission Memorandum accompanying this
Resolution;and further approve the terms of the Sponsorship Agreement between Deco Bike and
Citibank,attached as Exhibit "2"to the City Commission Memorandum accompanying this
Resolution,authorizing the operation of the Program under the title sponsored name of "Citi Bike".
PASSED and ADOPTED this /¥day or _lo4e 2023.
ATTEST:
0CT 2 0 023
,s i
Dan Gelber,Mayor
APPROVED AS TO
FORM &LANGUAGE
&FOR EXECUTION
City Attorney~
t-I0-23
Dote
Resolutions -C7 K
MIAMI BEACH
COMMISSION MEMORANDUM
TO:Honorable Mayor and Members of the City Commission
FROM:Alina T.Hudak,City Manager
DATE:October 18,2023
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH,FLORIDA,ACCEPTING THE RECOMMENDATION OF
THE FINANCE AND ECONOMIC RESILIENCY COMMITTEE,AT ITS
SEPTEMBER 22,2023 MEETING,AND OF THE CITY MANAGER (AS SET
FORTH IN THE CITY COMMISSION MEMORANDUM ACCOMPANYING
THIS RESOLUTION)AND WAIVING,BY 517TH VOTE,THE FORMAL
COMPETITIVE BIDDING REQUIREMENT IN SECTION 2-367(E)OF THE
CITY CODE,FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF
THE CITY,AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND
EXECUTE A NEW CONCESSION AGREEMENT WITH DECO BIKE,LLC
FOR THE IMPLEMENTATION,MANAGEMENT,AND OPERATION OF A
SELF-SERVICE BICYCLE SHARING PROGRAM,FOR A TERM OF FIVE
(5)YEARS,COMMENCING ON JANUARY 1,2025 AND EXPIRING ON
DECEMBER 31,2029,BASED UPON THE ESSENTIAL TERMS SET
FORTH IN THE TERM SHEET,ATTACHED AS EXHIBIT "1"TO THE CITY
COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION;
AND FURTHER APPROVING THE TERMS OF THE SPONSORSHIP
AGREEMENT BETWEEN DECO BIKE AND CITIBANK,ATTACHED AS
EXHIBIT "2"TO THE CITY COMMISSION MEMORANDUM
ACCOMPANYING THIS RESOLUTION,AUTHORIZING THE OPERATION
OF THE PROGRAM UNDER THE TITLE SPONSORED NAME OF "CITI
BIKE".
RECOMMENDATION
The Administration recommends approving the Resolution.
BACKGROUND/HISTORY
On July 16,2009,the City entered into an agreement with Deco Bike,LLC ("Deco Bike"or
"Concessionaire")in response to RFP 44--07/08 for the delivery and operation of a self-service
bicycle rental fleet for public use to be stationed in the public right-of-way.The agreement
required the Concessionaire to implement a program which enabled the public to self-rent
bicycles from any number of locations and return them to another location,on a 24-hour,365-
day per year basis.
Page 328 of 2240
A cquisition of bicycles and equipm ent,operation of a rental bike pro gram and staff ing exp enses
required an ext ended initial capital investm ent by D eco Bike.It becam e evident early on that
wi th out interv ention by th e C ity,either th roug h a contract term m odification or additiona l revenue
so urce,the progra m wo uld no t achieve a return of capita l or modest profit to the
C o ncessionaire,or allow th e recovery of the City's fo rgone parki ng revenues.G iven the nature
of pro gra m revenue,wh ich is genera ted in sm all portions th ro ugh bike rentals,a long-term
contract wa s necessary to allow D eco B ike tim e to recupera te its investm ent and generate
profit.
O n July 18,20 12 ,th e M ayor and City C om m ission adopted Resolut ion No.2012-27975,
approving A m endm ent No.1 to th e Agreem ent,extend ing the term of the Agreem ent fo r an
additional ten (10 )years ,th rough S eptem ber 30,2023,increasing the opera tional maxi m um to
1,10 0 bicycles,approving certa in ad vertising and sponsors hips,and pro viding fo r a revenue
sharing provi sion by increasing th e exem ption from City revenue share fro m $1,000,000 to
$1,500,000 during the firs t year of th e new term ,declining at a rat e of $250,000 per year to $0 in
year seven (7)of the revised term .The Am end m ent also included a W indfall Pro vision,wh ich
provided fo r th e opportunity to recover the wa ived revenues.
T he reafter,D eco Bike wa s able to secure a title na m e sponsors hip ag reem ent wi th Citibank,to
ope rate th e progra m under the "C ii Bike"na m e (the "C iti Bike Sponsors hip Agreem ent''}.O n
M ay 12 ,2015 ,the C ity and D eco Bike,execut ed Am endm ent No.2 to the Agreem ent,
approving the sponsors hip wi th Citibank to assist D eco Bike in generating revenues fo r its
opera tions and pro viding fo r the sharing wit h the City of the advertising revenue s generated from
th e C itibank S pons ors hip Agreem ent,as part of th e Bicycle Basket Sponsors hip Progra m and
th e K iosk A dvertising P ro gra m ,and including nam ing rights.These ty pe s of spo nso rs hips are not
co mmo n,and bicycle-sharing prog rams are typica lly subsidized by govern me ntal agencies to provide
additional transpo rtation options for residents.
O n D e cem ber 11,2019 ,th e M ayor and City Com m ission adopted Resolut ion No.2019-31105,
aut ho rizing th e C ity M anager to negotiate an am end m ent to th e Agreem ent betwe en the City and
D eco B ike for the pro vision of a docked electric-assisted bicycle sharing pilot pro gra m ("Pilot
P ro gram "),subject to the C ity C om m ission's appro val of the final am endm ent.Due to the
C O V ID -19 pand em ic,bike serv ice wa s interru pted.Later,on June 23,2021,the Mayor and
C ity C om m ission adopted R esolut ion No.2021-31743,appro ving Am end m ent No.3 to the
A gree m ent,wi th said am endm ent approving the im plem entation,m anag em ent and operation of
a one-year Pilot P rogra m fo r the opera tion of up to 100 docked electric assisted bicycles
C itywi de wi th in the existing Conc ession Areas.
A s the D eco Bike Agre em ent wa s set to exp ire on Septem ber 30,2023,on May 17,2023,the
M ayor and C ity Com m ission approved R esolut ion N o.2023-32905,approving Am end m ent No.
4 to th e A greem ent ;said am end m ent extend ing the Agreem ent on a month-to-m onth basis,fo r a
period no t to exceed fo urteen (14 )m onth s,or until such tim e as the City Com m ission awa rds a
contra ct purs uant to a new com petitiv e solicita tion for the City's bicycle sharing progra m ,
wh iche ver is earlier.A s directed by th e R esoluti on,the A dm inistra tion is fina lizing an Invita tion to
N egotiate for th e servi ces.
ANALYSIS
A t the S eptem ber 13 ,2023 C ity Com m ission m eeting ,V ice-M ayor Richardson sponsore d a
referral item (C 4 P }to th e Fina nce and E conom ic R esiliency Com m ittee ("FER C")to discuss
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