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Zagster/ComRel/33290/addl rental bikesAMENDMENT No. 2 TO SERVICES AGREEMENT This Amendment ("Amendment No. 2"). effective as of June nth, 2015, amends the Services Agreement dated as 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 $4,000.00 $12,000.00 Se tup/ rnp tern en tali on Fee 7.00 Additional hike parking dock $150.00 $1050.00 2. The following shall be added to the table in Schedule A, Section 5: Quantity' Item Description Monthly Unit Price Total Monthly Price 22.00 Adult Bicycles $110.00 $2.420.00 [Remainder of this page intentionally left blank) Except as otherwise set fort h herein, the Agreement shall remain in full force and effect. This amendment No. 2 shall be attached to, and become part of, the Agreement. ACKNOWLEDGED AND AGREED TO BY: COMPANY By l Name Title: to� ZAGSTER-INE,� By: (�� Nang(/1190 17j/ Fri CS c-1 f c. Title: ��� of 'Carmel ONE CIVIC SQUARE CARMEL, INDIANA 46032-2584 FORM APPROVED BY STATE BOARD OF ACCOUNTS FOR CITY OF CARMEL - 1997 'INDIANA RETAIL TAX EXEMPT CERTIFICATE NO. 003120155 002 0 FEDERAL EXCISE TAX EXEMPT 35-60000972 PAGE PURCHASE ORDER NUMBER 31(-010 THIS NUMBER MUST APPEAR ON INVOICES, ANP VOUCHER, DELIVERY MEMO, PACKING SLIPS, SHIPPING LABELS AND ANY CORRESPONDENCE. PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION 6/3h0 /5 . 4 VENDOR zags+cam LV, c. 2.4 I/torndiICe 9ree,f, Su;+e2 CUnnbc;c1ge, MA b2111i SHIP TO CiFy u -r Cannel 0,0.OF `-tv,.-honc +F.(ono VYIZ. Deve1Ipvhe✓1- Carientl, IAJ 9032 CONFIRMATION BLANKET CONTRACT PAYMENT TERMS / FREIGHT• . 4 QUANTITY I UNIT OF MEASURE DESCRIPTION UNIT PRICE EXTENSION c%j- X59 1914Fund/ iji S►VIY2 - G(uhunct ofvdorut' 1.8�,1jD0 Send Invoice To: PLEASE INVOICE IN DUPLICATE 113,370 TOTAL: $ 33,290.00 DEPARTMENT ACCOUNT PROJECT PROJECT ACCOUNT AMOUNT SHIPPING INSTRUCTIONS • SHIP REPAID. • C.O.D. SHIPMENTS' CANNOT BE ACCEPTED. • PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABELS. • THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945 AND ACTS AMENDATORY THEREOF AND SUPPLEMENT THERETO. ORDERED BY TITLE CLERK -TREASURER DOCUMENT CONTROL NO. 32610 OFFICE COPY PAYMENT • NP VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE A PART OF THE VOUCHER AND EVERY INVOICE AND VOUCHER HAS THE PROPER SWORN AFFIDAVIT ATTACHED. I HEREBY CERTIFY TH' q('�THERE IS AN UNCBLIGATED/BALANCE IN THIS APPROPRIATIOrvpU � CIENT TO PAY FOR TrIE ABOVE ORDER. • FA Zags! a better way to bike 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 ("Zagster"). 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 13: Company Obligations Schedule C: General Terms and Conditions AU 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./ The City of Carmel, Indiana By: —_f By: L t //e -n—.::_, Name: Timothy Ericson N9il e: James C. Brainard Title: CEO Title: Mayor Date: 02 / I I / 2015 Date: Contract N: 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 /a Fee >/,,b 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 ("Zagster 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 /a >/,,b ` The number of Zagster Bicycles may be increased, with a corresponding increase in the Recurring Fees to 04. be 9 %a10 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. [Remainder of page intentionally left blank] Jm t 7:11 fin I/3 -aD9.e° 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 will share a portion of the usage fees actually collected from Users that use the Zagster Bicycles at the Locations with Company less usage tees 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 Zagster. 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 its own cost) engage its own counsel to participate in the defense and settlement of the Third Party Claim. to. 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. tt. E -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 $150 far 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: Company B ZAGSTER INC. Na e: Jet 171LS /3hOtIICW Name: Title: NO") ef Cr /1 O fi 6-fr Ai ifricifunt Title Title: C rC) 1 %-y- RESOLUTION NO. BPW 07-15-I5-01 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 day of _-tay , 2015. CITY OF CARMEL, INDIANA G By and through its Board of Public Works and Safety BY: JaiBrainard. Presiding Officer Date: —/ _ /n ZAPS _, Mary Am : urke, ber Date: Lori S. Watson ''ember Date: `j/ tom /IS ATTEST: D: r na Cordray, IMCA, Clerk-"7reasurcr Date: 7— (5 / C C:AUsersA'mwrrayA ApppataVLocalAM icro,sortaWindows\Temporary Internet Files ACoulem.owlookv75P 1613VAAcknowledge 7a_ster Amendment 2015 docx7/82015 2:08 PM