CITY OF SEATTLE

ORDINANCE __________________

COUNCIL BILL __________________

AN ORDINANCE granting Puget Sound Bike Share, d.b.a. Pronto! Emerald City Cycle Share, permission to install, maintain, and operate a bike-share program in public places located within: Major Institution Overlay Districts, designated Urban Centers, Urban Villages, and all commerciallyor industrially-zoned areas in the City of Seattle; for a tenyear term, renewable for two successive ten-year terms; specifying the conditions under which this permit is granted; and providing for the acceptance of the permit and conditions.

WHEREAS, the Puget Sound Bike Share is a Washington non-profit organization that will operate a bike-share program in the Puget Sound region to provide a low-cost, convenient transportation alternative for the public; and

WHEREAS, the Seattle Department of Transportation (SDOT) supports bike-share programs because they provide a healthy, safe, and affordable travel option that has the potential to attract new people to biking, and serve residents and visitors alike; and

WHEREAS, SDOT looks forward to continuing their relationship with the Puget Sound Bike Share and its Board of Directors as they develop a bike-share system that equitably serves the City's needs with a high-performing system; and

WHEREAS, by Resolution 31468, the City granted conceptual approval to Puget Sound Bike Share for the installation, maintenance, and operation of the bike-share program in public places located within Major Institution Overlay Districts, designated Urban Centers and Urban Villages, and abutting commerciallyor industrially-zoned parcels lying between these areas in the City of Seattle; and

WHEREAS, the adoption of this ordinance is the culmination of the approval process for the Puget Sound Bike Share, d.b.a. Pronto! Emerald City Cycle Share, to legally occupy a portion of the public right-of-way or other public place, NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Permission. Subject to the terms and conditions of this ordinance, the City of Seattle ("City") grants permission (also referred to in this ordinance as a "program term permit") to Puget Sound Bike Share, d.b.a. Pronto! Emerald City Cycle Share, Pronto!, or Pronto! Cycle Share; and its successors and assigns as approved by the Director of the Seattle Department of Transportation ("Director") according to Section 14 of this ordinance (the party named above and each such approved successor and assign is referred to as "Permittee"), to install, maintain, and operate a bike-share program consisting of modular bike-share stations with docks for bicycles, payment kiosk, helmet-vending kiosk, wayfinding signage, solar power structure providing power for the bikeshare station, and any other related-appurtenant structure or utility ( referred to as the "bike-share program") in public places located within: Major Institution Overlay Districts, designated Urban Centers, Urban Villages, and all commerciallyor industrially-zoned areas in the City of Seattle. The City acknowledges that the Permittee has entered into a contract with a vendor to operate and maintain the bike-share program. Notwithstanding that a vendor will operate and maintain the bike-share program under a contract with the Permittee; the Permittee shall be exclusively responsible for complying with all the terms and conditions of this program term permit.

Section 2. Term. The permission granted to the Permittee is for a term of ten years starting on August 1, 2014 and ending at 11:59 p.m. on July 31, 2024. Upon written application made by the Permittee at least 180 days before expiration of the term, the Director or the City Council may renew the program term permit twice, each time for a successive ten-year term, subject to the right of the City to require the removal of the bikeshare program or to revise by ordinance any of the terms and conditions of the permission granted by this ordinance. The total term of the permission, including renewals, shall not exceed 30 years. The Permittee shall submit any application for a new permission no later than 180 days prior to the expiration of the then-existing term.

Section 3. Protection of utilities. The permission granted is subject to the Permittee bearing the expense of any protection, support, or relocation of existing utilities deemed necessary by the owners of the utilities, and the Permittee being responsible for any damage to the utilities due to the installation, construction, repair, reconstruction, maintenance, operation, or removal of the bike-share program and for any consequential damages that may result from any damage to utilities or interruption in service caused by any of the foregoing.

Section 4. Removal for public use or for cause. The permission granted is subject to use of the street right-of-way or other public place (collectively, "public place") by the City and the public for travel, utility purposes, and other public uses or benefits. The City expressly reserves the right to deny renewal, or terminate the permission at any time prior to expiration of the initial term or any renewal term, and require the Permittee to remove the bike-share program, or any part thereof or installation on the public place, at the Permittee's sole cost and expense in the event that:

(a) The City Council determines by ordinance that the space occupied by the bike-share program is necessary for any public use or benefit or that the bike-share program interferes with any public use or benefit; or

(b) The Director determines that use of the bike-share program has been abandoned; or

(c) The Director determines that any term or condition of this ordinance has been violated, and the violation has not been corrected by the Permittee by the compliance date after a written request by the City to correct the violation, unless a notice to correct is not required due to an immediate threat to the health or safety of the public.

A City Council determination that the space is needed for, or the bike-share program interferes with, a public use or benefit is conclusive and final without any right of the Permittee to resort to the courts to adjudicate the matter.

If the existence of a bike-share program or portion thereof would interfere with any construction for street or transportation purposes authorized, ordered, or performed by the City; the Permittee shall on 30-calendar-days' notice from the Director, remove that portion of the bike-share program at its own cost and expense that interferes with the construction activity. If any non-transportation-related construction project conflicts with any portion of the bike-share program; the Permittee upon receiving notice from the City for planned City work or from a private contractor as may be required by a Street Use permit; shall coordinate with the contractor the removal of the portion of the bike-share program that would interfere with the construction.

The removed bike-share program may be returned to its originally-permitted location when the construction conflicts no longer exists and the bike-share program does not pose conflicts with the public place's post-construction configuration. There may be instances where the Director determines that the postconstruction public place is no longer a viable bike-share program location, and may revoke the original bike-share program siting permit due to post-construction-public-place conflicts.

Section 5. Permittee's obligation to remove and restore. If the permission granted is not renewed at the expiration of a term, or if the permission expires without an application for a new permission being granted, or if the City terminates the permission, then within 90 days after the expiration or termination of the permission, or prior to any earlier date stated in this ordinance, in another ordinance, or order requiring removal of the bike-share program; the Permittee shall, at its own expense, remove the bike-share program and all of the Permittee's equipment and property from the public place and replace and restore all portions of the public place that may have been disturbed for any part of the bike-share program in as good condition for public use as existed prior to installing the bike-share program and in at least as good condition in all respects as the abutting portions of the public place as required by SDOT right-of-way restoration standards.

Failure to remove the bike-share program as required by this section is a violation of Chapter 15.90 of the Seattle Municipal Code (SMC) or successor provision; however, applicability of Chapter 15.90 does not eliminate any remedies available to the City under this ordinance or any other authority. If the Permittee does not timely fulfill its obligations under this section, the City may in its sole discretion remove the bike-share program and restore the public place at the Permittee's expense, and collect such expense in any manner provided by law.

Upon the Permittee's completion of removal and restoration in accordance with this section, or upon the City's completion of the removal and restoration and the Permittee's payment to the City for the City's removal and restoration costs, the Director shall then issue a certification that the Permittee has fulfilled its removal and restoration obligations under this ordinance. Upon prior notice to the Permittee and entry of written findings that it is in the public interest, the Director may, in the Director's sole discretion, conditionally or absolutely excuse the Permittee from compliance with all or any of the Permittee's obligations under this section.

Section 6. Repairing, reconstructing, or relocating. The bike-share program shall remain the exclusive responsibility of the Permittee and the Permittee shall maintain the bike-share program in good working order, including keeping the adjacent public place free of litter and debris, maintaining the bikeshare facilities free of graffiti, and promptly repairing any vandalism. The Permittee shall not install, reconstruct, or relocate the bike-share program except in strict accordance with plans and specifications approved by the Director. The Director may, in the Director's judgment, order the bike-share program reconstructed, removed, or relocated at the Permittee's cost and expense because of: the deterioration or unsafe condition of the bike-share program; the installation, construction, reconstruction, maintenance, operation, or repair of any municipally-owned public utility or transportation-related facility; or for any other cause.

Section 7. Failure to correct unsafe condition. After written notice to the Permittee and failure of the Permittee to correct an unsafe condition within the time stated in the notice, the Director may order the bike-share program be closed or removed at the Permittee's expense if the Director deems that the bike-share program has become unsafe or creates a risk of injury to the public. If there is an immediate threat to the health or safety of the public, a notice to correct is not required. In cases of emergencies, City personnel may be required to remove, relocate, or temporarily abate a portion of the bike-share program without prior notice to the Permittee.

Section 8. Continuing obligations. Notwithstanding termination or expiration of the permission granted, or closure or removal of the bike-share program, the Permittee shall remain bound by all of its obligations under this ordinance until the Director has issued a certification that the Permittee has fulfilled its removal and restoration obligations under Section 5 of this ordinance. Notwithstanding the issuance of that certification, the Permittee shall continue to be bound by the obligations in Section 9 of this ordinance and shall remain liable for any unpaid fees assessed under Section 17 of this ordinance.

Section 9. Release, hold harmless, indemnification, and duty to defend. The Permittee, by accepting the terms of this ordinance, releases the City, its officials, officers, employees, and agents from any and all claims, actions, suits, liability, loss, costs, expense, attorneys' fees, or damages of every kind and description arising out of or by reason of the bike-share program or this ordinance, including but not limited to claims resulting from injury, damage, or loss to the Permittee or the Permittee's property.

The Permittee agrees to at all times defend, indemnify, and hold harmless the City, its officials, officers, employees, and agents from and against all claims, actions, suits, liability, loss, costs, expense, attorneys' fees, or damages of every kind and description, excepting only damages that may result from the sole negligence of the City, that may accrue to, be asserted by, or be suffered by any person or property including, without limitation, damage, death or injury to members of the public or to the Permittee's officers, agents, employees, contractors, invitees, tenants, tenants' invitees, licensees, or successors and assigns, arising out of or by reason of:

(a) The existence, condition, construction, reconstruction, modification, maintenance, operation, use, or removal of the bike-share program or any portion thereof, or the use, occupation, or restoration of the public place or any portion thereof by the Permittee or any other person or entity;

(b) Anything that has been done or may at any time be done by the Permittee by reason of this ordinance; or

(c) The Permittee failing or refusing to strictly comply with every provision of this ordinance; or arising out of or by reason of the bike-share program or this ordinance in any other way.

If any suit, action, or claim of the nature described above is filed, instituted, or begun against the City, the Permittee shall upon notice from the City defend the City, with counsel acceptable to the City, at the sole cost and expense of the Permittee, and if a judgment is rendered against the City in any suit or action, the Permittee shall fully satisfy the judgment within 90 days after the action or suit has been finally determined, if determined adversely to the City. If it is determined by a court of competent jurisdiction that Revised Code of Washington (RCW) 4.24.115 applies to this ordinance, then in the event claims or damages are caused by or result from the concurrent negligence of the City, its agents, contractors, or employees, and the Permittee, its agents, contractors, or employees, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the Permittee or the Permittee's agents, contractors, or employees.

Section 10. Insurance. For as long as the Permittee exercises any permission granted by this ordinance and until the Director has issued a certification that the Permittee has fulfilled its removal and restoration obligations under Section 5 of this ordinance, the Permittee shall obtain and maintain in full force and effect, at its own expense, insurance and/or self-insurance that protects the Permittee and the City from claims and risks of loss from perils that can be insured against under commercial general liability (CGL) insurance policies in conjunction with:

(a) Installation, construction, reconstruction, modification, operation, maintenance, use, existence, or removal of the bike-share program or any portion thereof, as well as restoration of any disturbed areas of the public place in connection with removal of the bike-share program;

(b) The Permittee's activity upon or the use or occupation of the public place described in Section 1 of this ordinance; and

(c) Claims and risks in connection with activities performed by the Permittee by virtue of the permission granted by this ordinance.

Minimum insurance requirements are CGL insurance written on an occurrence form at least as broad as the Insurance Services Office (ISO) CG 00 01. The City requires insurance coverage to be placed with an insurer admitted and licensed to conduct business in Washington State or with a surplus lines carrier pursuant to RCW Chapter 48.15. If coverage is placed with any other insurer or is partially or wholly self-insured, such insurer(s) or self-insurance is subject to approval by the City's Risk Manager.

If the Permittee contracts with a vendor to operate the entire bike-share program, the minimum limits of liability maintained by the Permittee shall be $3,000,000 per Occurrence; $3,000,000 General Aggregate; $3,000,000 Products/Completed Operations Aggregate, including Premises Operation; Personal/Advertising Injury; Contractual Liability. Coverage shall include the "City of Seattle, its officers, officials, employees and agents" as additional insureds for primary and non-contributory limits of liability subject to a Separation of Insureds clause.

If the Permittee does not contract with a vendor and operates the entire bike-share program, or if a vendor operates the entire bike-share program, the minimum limits of liability maintained by the Permittee or vendor shall be $6,500,000 per Occurrence; $6,5000,000 General Aggregate; $6,500,000 Products/Completed Operations Aggregate, including Premises Operation; Personal/Advertising Injury; Contractual Liability. Coverage shall include the "City of Seattle, its officers, officials, employees and agents" as additional insureds for primary and non-contributory limits of liability subject to a Separation of Insureds clause.

Within 60 days after the effective date of this ordinance, the Permittee shall provide to the City, or cause to be provided, certification of insurance coverage including an actual copy of the blanket or designated additional insured policy provision per the ISO CG 20 12 endorsement or equivalent. The insurance coverage certification shall be delivered or sent to the Director or to SDOT at an address as the Director may specify in writing from time to time. The Permittee shall provide a certified complete copy of the insurance policy to the City promptly upon request.

If the Permittee is self-insured, a letter of certification from the Corporate Risk Manager may be submitted in lieu of the insurance coverage certification required by this ordinance, if approved in writing by the City's Risk Manager. The letter of certification must provide all information required by the City's Risk Manager and document, to the satisfaction of the City's Risk Manager, that self-insurance equivalent to the insurance requirements of this ordinance is in force. After a self-insurance certification is approved, the City may from time to time subsequently require updated or additional information. The approved self-insured Permittee must provide 30 days prior notice of any cancellation or material adverse financial condition of its self-insurance program. The City may at any time revoke approval of self-insurance and require the Permittee to obtain and maintain insurance as specified in this ordinance.

In the event that the Permittee assigns or transfers the permission granted by this ordinance, the Permittee shall maintain in effect the insurance required under this section until the Director has approved the assignment or transfer pursuant to Section 14 of this ordinance.

Section 11. Third-party contract provisions. The Permittee shall submit to the Director a copy of all contracts that the Permittee enters into with a contractor or vendor to provide bike-share services. The contract shall include provisions that the contractor or vendor:

(a) Obtain liability insurance naming the City as an additional insured in an amount and form as approved by the City's Risk Manager according to Section 10 of this ordinance; and

(b) Provide the Director with an annual certificate of insurance; and

(c) Indemnify the City, in a form approved by the City, against all claims or damages arising from the use or operation of the bike-share station, bicycles, or any other bike-share equipment the vendor provides under contract with the Permittee.

All required documents shall be submitted, or caused to be submitted, by the Permittee to the Director within 60 days of the effective date of this ordinance.

Section 12. Performance bond. Within 60 days after the effective date of this ordinance, the Permittee shall deliver to the Director for filing with the City Clerk a sufficient bond executed by a surety company authorized and qualified to do business in the State of Washington that is in the amount of $3,500 per bike-share station proposed to be installed in the public place in the coming year, and conditioned upon a requirement that the Permittee shall comply with Sections 5, 6, and 7 of this ordinance. A bond renewed on an annual basis is acceptable, however, the Permittee shall ensure that the bond remains in effect until the Director has issued a certification that the Permittee has fulfilled its removal and restoration obligations under Section 5 of this ordinance. The bond amount shall be adjusted annually based on the total number of bike stations currently installed and to be installed in the coming year. If the City receives notice that the bond will be cancelled or not renewed by the surety, then prior to the effective cancellation date of the bond, Permittee shall either: 1) provide the City with a replacement bond or other security acceptable to the City, or remove all stations and restore all public areas in the condition required under Section 5. An irrevocable letter of credit approved by the Director in consultation with the City Attorney's Office may be substituted for the bond. In the event that the Permittee assigns or transfers the permission granted by this ordinance, the Permittee shall maintain in effect the bond or letter of credit required under this section until the Director has approved the assignment or transfer pursuant to Section 14 of this ordinance.

Section 13. Adjusting insurance or bond requirements. The Director may adjust minimum liability insurance levels or surety bond requirements during the term of this permission. If the Director determines that an adjustment is necessary to fully protect the interests of the City, the Director shall notify the Permittee or vendor supplying any bike-share program elements to the Permittee of the new requirements in writing. The Permittee or vendor shall, within 60 days of the date of the notice, provide proof of the adjusted insurance or surety bond levels to the Director.

Section 14. Consent for and conditions of assignment or transfer. The permission granted by this ordinance shall not be assignable or transferable by operation of law; nor shall the Permittee transfer, assign, mortgage, pledge or encumber the same without the Director's consent, which the Director shall not unreasonably refuse. The Director may approve assignment or transfer of the permission granted by this ordinance to a successor entity only if the successor or assignee has accepted in writing all of the terms and conditions of the permission granted by this ordinance; has provided, at the time of the acceptance, the bond and certification of insurance coverage required under this ordinance; and has paid any fees due under Section 17 of this ordinance. Upon the Director's approval of an assignment or transfer, the rights and obligations conferred on the Permittee by this ordinance shall be conferred on the successors and assigns. Any person or entity seeking approval for an assignment or transfer of the permission granted by this ordinance shall provide the Director with a complete description of the current bike-share program that includes all stations and related infrastructure serving the program, and all known or potential bike-share expansion plans.

Section 15. Inspection fees. The Permittee shall, as provided by SMC Chapter 15.76 or successor provision, pay the City the amounts charged by the City to inspect the bike-share program during installation, construction, reconstruction, repair, annual safety inspections, and at other times deemed necessary by the City. An inspection or approval of the bikeshare program by the City shall not be construed as a representation, warranty, or assurance to the Permittee or any other person as to the safety, soundness, or condition of the bike-share program. Any failure by the City to require correction of any defect or condition shall not in any way limit the responsibility or liability of the Permittee.

Section 16. Reporting. The Permittee shall submit to the Director, or to SDOT at an address specified by the Director, an annual report that:

(a) Describes the physical locations and provides photo documentation of the condition of all bike-share program elements;

(b) Describes any major damages or repairs made to any element of the bike-share program in the prior year; and

(c) Quantifies maintenance complaints and summarizes the type of maintenance complaints received in the prior year, and quantifies the turn-around time for resolving the complaints received in the prior year.

A report meeting the foregoing requirements shall be submitted before the expiration of the first year of the term; subsequent reports shall be submitted annually within 30 days prior to the anniversary date of the last inspection report. The Director may, however, in the event of a natural disaster or other event that may have damaged the bike-share program, require that additional reports be submitted by a date established by the Director. The Permittee has the duty of inspecting and maintaining the bike-share program. The responsibility to submit inspection reports annually or as required by the Director does not waive or alter any of the Permittee's other obligations under this ordinance. The receipt of any reports by the Director shall not create any duties on the part of the Director. Any failure by the Director to require a report, or to require action after receipt of any report, shall not waive or limit the obligations of the Permittee.

In addition to the annual inspection report, the Permittee shall submit location coordinates of all bike-program elements located in the public place on a quarterly basis.

Section 17. Annual fee. In consideration of the bike-share program serving a beneficial transportation function, the annual fee shall be based on the estimated cost for SDOT to administer the program term permit. Beginning on August 1, 2014, and annually thereafter, the Permittee shall promptly pay to the City, upon statements or invoices issued by the Director, an annual fee of $3,440, and adjusted annually based on the actual costs incurred by the City to administer the program term permit. This annual fee is based on the $172 hourly rate established by the current SDOT Street Use Permit Fee Schedule and may be adjusted according to subsequent Council-authorized fee schedule amendments. All payments shall be made to the City Finance Director for credit to the Transportation Operating Fund.

It is the responsibility of the Permittee to obtain, or cause to be obtained by all contractors or vendors, all necessary City permits for installing, removing, maintaining, or relocating any element of the bike-share program in the public place and pay all related City permit fees. The Permittee or vendor shall not install, remove, or relocate any element of the bike-share program or impair the mobility of the adjacent public place during maintenance activities without first securing a Street Use permit to do the work in the public place. Individual site permits shall be reviewed and issued under a type 54, Miscellaneous Uses for Use of Public Place according to SMC 15.04.100, Street Use permit based on the current SDOT Street Use Permit Fee Schedule for all proposed new or relocation site requests. Any revisions, omissions, or additions to the scope of work authorized under a permit shall be reviewed and approved by the SDOT prior to implementation. If any ground-disturbance activity or removal of existing City infrastructure is required to accommodate the site request, additional review and permitting may be required.

Section 18. Compliance with City standards and other laws. Permittee shall install, maintain, and operate the bike-share program in compliance with all applicable federal, state, County and City laws and regulations. Without limitation, in all matters pertaining to the bike-share program, the Permittee shall comply with the City's laws prohibiting discrimination in employment and contracting including Seattle's Fair Employment Practices Ordinance, Chapter 14.04, and Fair Contracting Practices code, Chapter 14.10 (or successor provisions).

The Permittee shall site and operate the bike-share program in compliance with the Right-of-Way Improvements Manual, the Traffic Control Manual for In-Street Work, and all other City Standard Specifications. SDOT may prepare siting guidelines compiling existing established City standards in order to help facilitate the review of individual station site applications.

All bike-share program signs located in the public place shall conform with the Sign Code, SMC Chapter 23.55.

Section 19. Acceptance of terms and conditions. The Permittee shall deliver to the Director its written signed acceptance of the terms of this ordinance within 60 days after the effective date of this ordinance. The Director shall file the written acceptance with the City Clerk. If no such acceptance is received within that 60-day period, the privileges conferred by this ordinance shall be deemed declined or abandoned and the permission granted deemed lapsed and forfeited. The Permittee shall not install or operate any bikeshare program element prior to the Permittee delivering its written signed acceptance of the terms of this ordinance and providing the bond and certification of insurance coverage required by this ordinance as well as the vendor documents required by Section 11 of this ordinance.

Section 20. Ordinance obligations bind subsequent Permittees. The obligations and conditions imposed on the Permittee by this ordinance bind the Permittees' heirs, successors, and assigns regardless of whether the Director has approved an assignment or transfer of the permission granted by this ordinance.

Section 21. Section titles. Section titles are for convenient reference only and do not modify or limit the text of a section.

Section 22. This ordinance shall take effect and be in force 30 days after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Seattle Municipal Code Section 1.04.020. Passed by the City Council the ____ day of ________________________, 2014, and signed by me in open session in authentication of its passage this

_____ day of ___________________, 2014.

_________________________________

President __________of the City Council

Approved by me this ____ day of _____________________, 2014.

_________________________________

Edward B. Murray, Mayor

Filed by me this ____ day of __________________________, 2014.

____________________________________

Monica Martinez Simmons, City Clerk

(Seal)

Angela Steel SDOT Puget Sound Bike Share Program ORD May 13, 2014 Version #15