HomeMy WebLinkAboutBPW-07-15-15-01-Acknowledging Mayors Signature on Zagster ContractRESOLUTION NO. BPW 07-15-15-01
RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY
ACKNOWLEDGING RECEIPT OF CONTRACT
WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana ("City"), is authorized to
enter into contracts; and
WHEREAS, pursuant to Indiana Code 36-4-5-3, the City's mayor may enter into contracts on behalf of the
City; and
WHEREAS, pursuant to his authority under Indiana law, the City's mayor, the Honorable James C.
Brainard, has caused to be signed the City contract attached hereto as Exhibit A (the "Contract"); and
WHEREAS, Mayor Brainard now wishes to present the contract to the City's Board of Public Works and
Safety for it to be publicly acknowledged, filed in the Clerk -Treasurer's Office, and made available to the public for
review.
NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as
follows:
1. The foregoing Recitals are incorporated herein by this reference.
2. The receipt of the Contract is hereby acknowledged.
3. The Contract shall be promptly filed in the office of the Clerk -Treasurer and thereafter made available to
the public for review.
SO RESOLVED this 1 day of wj , 2015.
CITY OF CARMEL INDIANA
1; By and through its Board of Public Works and Safety
BY:
Janb Brainard, Presiding Officer
Date:
21
Mary An
Date:
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Lori S. Watson
Date:
ATTEST:
na Cordray, IMCA, Clerk -
Date: '] - (5 —1 S
easurer
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Services Agreement
This Services Agreement including all exhibits and attachments hereto (this "Agreement') is made effective as of the date of
last signature below (the "Effective Date"), by and between
The City of Carmel, Indiana of 1 Civic Square, Carmel, IN 46032 ("Company'), and
Zagster, Inc. of 24 Thorndike Street, Suite 2, Cambridge, MA 02141 ('gagster").
For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows: This Agreement consists of this signature page and the following schedules, which are incorporated by
reference and made a part of this Agreement:
Schedule A: Zagster Services and Fees
Schedule B: Company Obligations
Schedule C: General Terms and Conditions
All notices, requests and demands, and other communications required or permitted under this Agreement will be in writing
and sent to the addresses set forth above. A notice will be deemed effective: (a) upon delivery, if delivered personally to a
party; (b) 1 business day after deposit, if delivered to a nationally recognized courier service offering guaranteed overnight
delivery; or (c) 3 business days after having been deposited in the United States mails, certified mail, postage prepaid,
return receipt requested.
This Agreement may be executed in one or more counterparts, either in tangible form or through a recognized e -signature
service such as Docusign or its equivalent ("e -Signature"), each counterpart of which will be deemed to be an original and
which together will constitute one and the same instrument. The signature of any of the parties may be evidenced by a
facsimile copy of this Agreement bearing such signature or as enabled by such e -Signature service, and such signature will
be valid and binding as if an original executed copy of the Agreement has been delivered.
In Witness Whereof a duly authorized representative of each party has executed this Agreement as of the date set forth
below.
Zagster, Inc.
By: l�
The City of Carmel, Indiana
Name: Timothy Ericson e: James C. Brainard
Title: CEO Title: Mayor
Date: 02 / t 1 / 2015 Date:
Contract #: Z-201411-152
4. One Time Fees. Company will pay to Zagster non-refundable one-time fees in the amounts described below to
set-up and install the Zagster Bicycles at the locations set forth in the Launch Notification Form (the "Locations")
and for such other materials as may be mutually agreed to by the parties and set forth in the description below. The
Company will pay the one-time fees to Zagster on or before the Launch Date.
Quantity
Item
Description
Unit Price
Total
2.00
Location
$4,000.00
$8,000.00
Setup/Implementation
Fee
4.00
Additional bike parking
dock
$150.00
$600.00
5. Recurring Fees and Number of Zagster Bicycles. During the Term, Zagster will provide the number of bicycles
("Zaoster Bicycles') at the Locations set forth in the Launch Notification Form as follows:
Quantity'
Item
Description
Monthly
Unit Price
:Total Monthly
Price
16.00
Adult Bicycles
$110.00 '
•
$1,760.00 j
rata
' The number of Zagster Bicycles may be increased, with a corresponding increase in the Recurring Fees to be 9' 7,10
paid by Company, by mutual written agreement of the parties pursuant to the form set forth at
http://www.zagster.com/AddLocationForm (password: B1k3s).
Recurring Fees Payment Terms: Company shall pay the Recurring Fees on a quarterly due on receipt basis.
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b. Payment of Membership and Usage Fees. Users shall be responsible for paying, via credit card, Zagster's
annual membership fee, usage fees, and such additional fees and charges as set forth at
www.Zagster.com, as adjusted from time to time in Zagster's sole discretion. All fees paid by Users will be
processed by Zagster's third party credit card processor and Zagster will not receive, process, retain or
maintain any credit card data. Zagster wilt share a portion of the usage fees actually collected from Users
that use the Zagster Bicycles at the Locations with Company less usage fees which Zagster credits or
reimburses the User (the "Net Usage Fees"). Within thirty (30) days from the end of each calendar quarter
during the Term, Zagster will remit to Company 93% of the Net Usage Fees and a report summarizing the
calculation of Net Usage Fees. Zagster may offset against the Net Usage Fees any and all other
amounts, fees, or charges due from Company to Zagster hereunder.
(Remainder of page intentionally left blank)
unreasonably withheld or delayed. Zagster may provide any approvals required under this section via
email. Zagster shall not distribute or publish any Marketing Materials contemplated under this Agreement,
or otherwise make any public statements in any social forum or medium relating to this Agreement or
referencing this arrangement with the Company without the prior written consent of the Company (which
shall not be unreasonably withheld).
(d) Zagster Marketing Rights. Company, at its sole discretion, will provide Zagster with a list of Company's
prospective users of the Zagster Bicycles, which list shall include name, e-mail address, and other mutually
agreed to information (the "Marketing List"). Company hereby agrees that Zagster may use such
Marketing List to send marketing information and materials about Zagster and the Zagster Bicycles
available at the Locations, provided, that Zagster receives prior written approval of the proposed marketing
information from Company (which shall not be unreasonably withheld) and that Zagster provides the
recipients with the ability to opt -out of receiving future communications.
3. Zagster Bicycles.
(a) Company will use reasonable efforts to report any maintenance issues relating to Zagster Bikes or the
Zagster Bike Racks or facility on Company premises. Such reasonable efforts by the Company will be
construed only to mean a general visual inspection to look for flat tires, obvious and material cosmetic
defects to the bicycles and/or racks, and graffiti. Zagster will respond to all maintenance issues reported by
Company as soon as commercially practicable.
(b) At Zagster's request, unless Company has elected Damage Coverage, Company shall reimburse Zagster
for the costs, including costs of labor, to replace and/or repair Zagster Bicycles (only if it is apparent that
such Bicycles are vandalized, stolen or damaged while not in use by a User but not for normal or
expected wear and tear due to routine usage nor for damage, vandalism, or Zagster Bicycles stolen while
in use by a user), Zagster automated locks, and/or Zagster bicycle racks that have been
vandalized, stolen, and/or damaged by accident or misuse or abuse. Zagster shall invoice Company for
such costs on a regular basis and shall accompany the invoice with supporting documentation. Company
shall pay such invoices within thirty (30) days of receipt.
(c) Company will use its commercially reasonable best efforts to promptly remove all non-Zagster bicycles
from the Zagster bicycle racks at the Locations, provided that such bicycle racks clearly indicate that they
are for Zagster bicycles only.
(Remainder of page intentionally left blank)
PAYABLE FOR THE ZAGSTER SERVICE THAT IS
THE SUBJECT OF THE CLAIM. COMPANY
ACKNOWLEDGES THAT THE PROVISIONS OF
THIS SECTION REPRESENT A REASONABLE
ALLOCATION OF RISK THAT IS REFLECTED IN
THE FEES PAID BY COMPANY. THE FOREGOING
LIMITATION OF LIABILITY IS NOT INTENDED TO
LIMIT EITHER PARTY'S LIABILITY FOR GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
7. Confidentiality; Suggestions. Each party
acknowledges that during the term of this Agreement
the other party may not disclose information, whether
orally, visually, or in tangible form, that is proprietary
and confidential to the disclosing party and is
disclosed or marked as proprietary or confidential
(hereafter "Confidential Information") and that the
unauthorized disclosure of Confidential Information
may cause irreparable harm to the disclosing party.
Zagster acknowledges that Company's prospective
user lists (if applicable) are proprietary to Company
and Zagster will not use them, other than to provide
Zagster Service hereunder, without Company's
permission. Each party shall only use the Confidential
Information to perform its obligations hereunder and
will take all reasonable measures to safeguard and
prevent the unauthorized disclosure of Confidential
Information, but no less than the measures it takes to
safeguard its own confidential information, including
without limitation disclosing Confidential Information
only to those of its employees with a need to know
such information to perform their obligations
hereunder and which have been advised of the
confidential nature of the information and have
agreed to protect the Confidential Information to the
same extent as Company hereunder. The parties
acknowledge that it will be impossible to measure the
damages that would be suffered by one party if the
other party fails to comply with the provisions of this
Section 7 and that in the event of any such failure,
such party will not have an adequate remedy at law
and shall, therefore, be entitled, in addition to any
other rights and remedies, to seek specific
performance of the receiving party's obligations and
to seek immediate injunctive relief with respect
thereto.
Company may, from time to time, provide
suggestions, techniques, know-how, comments,
feedback or other input to Zagster with respect to the
Zagster Service (collectively, "Suggestions"). Both
parties agree that each Suggestion is and shall be
given entirely voluntarily. Each Suggestion, even if
designated as confidential by Company shall not,
absent a signed, written agreement with Zagster,
create an obligation of confidentiality for Zaqster.
Company agrees that it shall not give any Suggestion
that is subject to license terms or restrictions that
seek to require any Zagster technology, service,
product or documentation incorporating or derived
from such Suggestion, or any Zagster intellectual
property, to be licensed or otherwise shared with
Company or any third party. Termination.
a. Company shall have a one-time right to terminate this
Agreement, with such termination to be effective on
the 60th day following the Effective Date, by providing
written notice to Zagster at least ten (10) days prior to
such 60th day. If Company does not exercise the
foregoing right in accordance with the foregoing
sentence, Company will have no further right to
terminate this Agreement other than in accordance
with Section 8(b) below. Should Company exercise
its right to terminate the Agreement by the 60th day
following the Effective Date, Company shall be liable
only for the One Time Fees and for the Recurring
Fees for the number of months Company has
subscribed to the Zagster Service (plus any number
of days beyond the last full month the Agreement is in
effect on a pro -rated basis).
b. If either party breaches this Agreement and fails to
cure such breach within thirty (30) days after receipt
of written notice of that breach from the other party,
then the other party may terminate this Agreement
effective as of the end of that period. The
commitment of an act of bankruptcy (such as a giving
general assignment for the benefit of creditors) or the
filing of a bankruptcy petition will be deemed a
breach if not vacated within thirty (30) days of filing. It
is recognized that some breaches are not capable of
cure, such as a cessation of business. With respect
to any such incurable breach by a party, if it remains
possible to give notice, then upon such written notice
by the other party this Agreement will be deemed
terminated. If it is not possible then this Agreement
will be deemed to terminate automatically upon such
breach. In addition, if Company has entered into this
Agreement in its capacity as a multi -family property
owner or management company, Company may
terminate this Agreement with written notice to
Zagster by providing written notice to Zagster
1
its own cost) engage its own counsel to participate in
the defense and settlement of the Third Party Claim.
10. Nondiscrimination. Zagster represents and
warrants that it and all of its officers, employees,
agents, contractors and subcontractors shall comply
with all laws of the United States, the State of Indiana
and City prohibiting discrimination against any
employee, applicant for employment or other person
in the provision of any goods and/or services
provided pursuant to this Agreement with respect to
their hire, tenure, terms, conditions and privileges of
employment and any other matter related to their
employment or subcontracting, because of race,
religion, color, sex, handicap, national origin,
ancestry, age, disabled veteran status and/or
Vietnam era veteran status.
11. [-Verify. Pursuant to I.C. § 22-5-1.7 et seq., as the
same may be amended from time to time, and as is
incorporated herein by this reference (the "Indiana E -
Verify Law"), Zagster is required to enroll in and verify
the work eligibility status of its newly -hired employees
using the E -Verify program, and to execute an
affidavit and provide such documentation as is
reasonably acceptable to the Company affirming that
it is enrolled and participating in the E -verify program
and does not knowingly employ unauthorized aliens.
Should Zagster subcontract for the performance of
any work under and pursuant to this Agreement, it
shall fully comply with the Indiana E -Verify Law as
regards each such subcontractor. Should Zagster or
any subcontractor violate the Indiana E -Verify law,
and notwithstanding any other provision contained in
this Agreement, Company may require a cure of such
violation and thereafter, if no timely cure is
performed, terminate this Agreement, in Company's
sole discretion, in accordance with either the
provisions hereof or those set forth in the Indiana E -
Verify Law. The requirements of this paragraph shall
not apply should the Indiana E -Verify program cease
to exist.
12. Iran Certification. Pursuant to I.C. § 5-22-16.5,
Zagster hereby certifies that, by signing this
Agreement, it does not engage in investment
activities within the Country of Iran.
13. Indiana's Access to Public Records Act.
Notwithstanding any other provision contained in this
Agreement, Zagster understands and agrees that any
"public record", as that term is defined in I.C. § 5-14-
3-2(m), as amended, that is related to the subject
matter of this Agreement, shall be subject to release
under and pursuant to the provisions of Indiana's
Access to Public Records Act, as codified in I.C. § 5-
14-3-1, et seq., as amended.
14. Company Logo. Zagster agrees that, for the term of
this Agreement and any extensions thereof, and
unless otherwise agreed to in advance and in writing
by the Company, all Zagster bicycles that are made
available for use at any location located within the
corporate limits of the City of Carmel, Indiana shall
have visibly displayed thereon the Company's
approved logo.
AMENDMENT TO SERVICES AGREEMENT
This Amendment to Services Agreement ("Amendment") is intended to amend the Services
Agreement entered into by and between The City of Carmel, Indiana of 1 Civic Square, Carmel, IN 46032,
("Company"), and Zagster, Inc. ("Zagster) and effective February 24, 2015 (the "Original Agreement")
Capitalized terms not defined in this Amendment will have the meaning given them in the Original
Agreement.
For good and valuable consideration, the sufficiency of which is hereby acknowledged, both
parties agree as follows:
(A) Schedule A. In Schedule A of the Original Agreement, titled "Zagster Services and Fees," the No. of
Zagster Bicycles/Parking spots hereby increases to 22, to include 6 three -wheeled bicycles, with a
corresponding Increase in aggregate Recurring Fees to be paid by Company. Company will also pay a
One Time Fee of $1S0 for Setup and Implementation of each three -wheeled bicycle unit.
(B) Binding. Upon execution, this Amendment will become a valid and binding part of the Original
Agreement and will be considered included in the defined term "Agreement" Further, except as
amended herein, all other terms and conditions of the Original Agreement will remain in full force
and effect.
ACKNOWLEDGED AND AGREED TO BY:
Companyy
A
By: Vie.
Na
Titre:rtreitej of Ai
616-1111 q
ZAGSTER INC.
By:�
Name:
Title
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AMENDMENT No. 2T0 SERVICES AGREEMENT
This Amendment ('Amendment No. 2'), effective as of June 4th, 2015. amends the Services
Agreement dated es of February 11', 2015 by and between The City of Carmel, Indiana of 1 Civic Square,
Carmel, IN 46032, ("Company"), and Zagster, Inc. ( "Zagster") (the "Original Agreement.") Capitalized
terms not defined in this Amendment will have the meaning given them in the Original Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises set forth herein, and intending to be
legally bound hereby, Company and Zagster agree as follows:
1. The following shall be added to the table in Schedule A. Section 4:
Quantity
Item
Description
Unit Price
Total
3.00
Location
S4,000.00
$12,000.00
Setup/Implementation
Fee
7.00
Additional bike parking
dock
5150.00
51050.00
2. The followino shall be added to the table in Schedule A, Section 5:
Quantity*
Item
Description
Monthly
Unit Price
Total Monthly
Price
22.00
Adult Bicycles
5110.00
52.420,00
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Except as otherwise set forth herein, the Agreement shall remain in full force and effect. This
amendment No. 2 shall be attached to, and becorne part of, the Agreement.
ACKNOWLEDGED AND AGREED TO BY:
COMPANY
By:n
Name
Title: 111/9 ) f�
ZAGSTEWING-
By:
IN6.
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Name: /Fn -90f11 % Er i CS a--}
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Title: `"'C�