1 MEMORANDUM OF UNDERSTANDING
THIS MEMORANUDM OF UNDERSTANDING (this “MOU”) is made and entered on ________, 2022, between the CITY OF FORTUNA, a California municipal corporation (the “City”), and Bird Rides, Inc., a ____________ (“Bird”) to provide certain services within the City for the deployment of Stand-up electric scooter sharing systems.
This agreement shall remain in effect until January 1, 2023, unless terminated as set forth below.
AGREEMENT
1) Scope: This MOU and its terms apply to any proposed deployment of Stand-up electric scooter sharing systems by Bird within the City’s jurisdiction boundaries. Nothing in this MOU grants or conveys to Bird the exclusive right, within the City, to deploy, own, or operate a Stand-up electric scooter sharing systems (or other similarly system) within the City. 2) Stand-up electric scooters shall be limited to one rider per scooter. Stand-up electric scooters shall be governed by the rules applying to bicycles and are to be ridden on designated streets, and where available, in bike lanes and bike paths. Stand-up electric scooters are to stay to the right of street lanes and to offer the right of way to bicycles in bike lanes and on bike paths.
Stand-up electric scooters shall otherwise obey all the ordinances contained in the traffic ordinance of the City. The City reserves the right to prohibit parking or riding of scooters in certain areas as designated by the City, this may include, but is not limited to construction zones, road races, and public events. Bird agrees that within 24 hours of notification by the City, via email or other communication to the operations manager, the prohibition shall take effect. Users of Stand-up electric scooters shall be 18 or older. Users shall be prohibited from using any portable wireless communication device during operation. Users of Stand-up electric scooters who violate these provisions may be fined by the City consistent with fines for cyclists. 3) Bird shall provide easily visible contact information, including toll-free phone number and/or e-mail address on each Stand-up electric scooter for members of the public to make relocation requests or to report other issues with devices. Bird shall provide the City with the name and cell phone number of an operations manager for its operation within the City who shall be available daily during hours of operation (defined below) to respond to any issue arising from deployment or use of Stand-up electric scooters.
4) Hours of operation: Stand-up electric scooters will be made available to rent from 6 a.m. to midnight (local time).
5) Bird Rides, Inc. shall provide a minimum of 25 vehicles at launch. 2 6) Safety Education: Bird Rides will provide materials, videos, signage to promote safe riding and educate riders on rider responsibilities and encourage safe and courteous riding and parking.
7) Data sharing: Bird Rides, Inc. will provide data to City as necessary to assist with monitoring program usage.
8) Indemnification: To the maximum extent permitted by law, Bird agrees to indemnify, defend and hold harmless the City (and City’s officials, employees, agents, insurers, and affiliates) from and against all actions, liability, loss, judgments, damages or claims, of any nature whatsoever, brought against the City arising out of Bird’s breach of this MOU, or its negligence or willful misconduct, except to the extent such loss or liability is caused by the City’s sole willful conduct or active negligence.
9) Insurance: Bird shall comply with the insurance provisions included in Exhibit A hereto and incorporated herein by this reference.
10) Notices: All notices and communications to the Fortuna from Bird shall be made in writing (includes electronic communications) and sent to the address below. 11) Either party may terminate this agreement at any time and without cause upon (30) days prior written notice.
12) In carrying out their responsibilities, the parties shall remain independent contractors, and nothing herein shall be interpreted or intended to create a partnership, joint venture, employment, agency, franchise or other form of agreement or relationship. 13) The parties acknowledge that Bird may utilize independent business logistics providers to facilitate local operations. Bird's use of these logistics providers does not constitute a transfer or assignment of this Agreement, and Bird. remains responsible for all obligations and requirements under this Agreement.
14) This agreement shall be governed by and construed in accordance with the laws of the State of California. Any action to enforce any provision of this MOU shall be brought and prosecuted in the Superior Court of California, in and for the County of Humboldt. 15) The parties each warrant and represent to the other that the person signing this MOU is properly authorized by his or her respective entity to enter into this MOU and that, upon execution of this MOU, the MOU constitutes a binding obligation of the respective entity. 3 16) Paragraphs 8, 9, and 14, above, shall survive expiration or sooner termination of this MOU.
THE CITY OF FORTUNA BIRD RIDES, INC.
By: By:
Name: Merritt Perry Name:
Its: City Manager Its:
4 Exhibit A
Bird Rides Inc. shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Bird Rides Inc. has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
If Bird Rides Inc. maintains broader coverage and/or higher limits than the minimums shown above, Fortuna requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Fortuna.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
Fortuna, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Bird Rides Inc. including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
Primary Coverage
For any claims related to this contract, the Contractor’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects Fortuna, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by Fortuna, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
5 Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to Fortuna.
Waiver of Subrogation
Contractor hereby grants to Entity a waiver of any right to subrogation which any insurer of said Contractor may acquire against Fortuna by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not Fortuna has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by Fortuna. Fortuna may require Bird Rides Inc. to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or Entity.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to Fortuna.
Claims Made Policies (note – should be applicable only to professional liability, see below) If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, Bird Rides Inc. must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Contractor shall furnish Fortuna with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Entity before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. Fortuna reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Special Risks or Circumstances
Entity reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.