Agmt15 Bay Area Bike Share Agreement

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203193300.19 -14- 2.5 Non-Renewal. Notwithstanding anything to the contrary contained in Section 2.4, Operator has the right not to renew the Term for either Renewal Term by notice given to MTC not later than 6 months prior to the expiration of the then current Term. If Operator gives MTC a non-renewal notice in accordance with the preceding sentence, then this Agreement shall end upon the expiration of the then current Term. 2.6 Services. 2.6.1 Subject to Events of Force Majeure, following completion of Phase I, Operator shall operate the Program so that it is fully operational at all Stations, consistent with the Key Performance Indicators as set forth in Appendix A, 24 hours per day, seven days per week, every day of each year, during the Term. 2.6.2 Adjustments to KPIs. (a) KPIs in General. Notwithstanding anything to the contrary, if at any time and from time to time either Party in good faith believes that the KPIs should be updated, including by amending, supplementing or replacing them, (a) on account of technological developments incorporated into the Program by Operator, or (b) because the Party seeking changes believes the KPIs are ineffective, or not as effective as the KPIs could be, in strengthening the Program, the customer experience, and Operator’s performance, then the Party seeking changes to the KPIs shall submit proposed changes to the KPIs together with an explanation of how the proposed changes would address the deficiencies in the then existing KPIs (“KPI Change Request”). Within 10 business days thereafter, the other Party shall either accept the KPI Change Request in writing, or reject the KPI Change Request along with the reasons for the rejection. In the case of such rejection, at the request of the Party submitting the KPI Change Request, the matter will be referred to discussion in accordance with Section 23.1.1, except the matter will not be subject to mediation in accordance with Section 23.1.2. If the matter is not resolved within 30 business days of the KPI Change Request, the KPIs shall not be changed pursuant to the KPI Change Request. In lieu of rejecting or accepting a proposed KPI change, the Parties may agree to test trials to test proposed changes and then defer any decision until the conclusion of the trial period. (b) Rebalancing. It is the objective of Operator to maximize the utility of the Program and the customer experience at all times, but particularly during the hours between 6:00 AM and 10:00 PM (“Peak Hours”), in a cost effective manner. Maximizing utility requires that Operator take affirmative steps to address severe imbalances in the demand for and supply of available Bicycles and empty Operable Docks during Peak Hours, which imbalances typically arise from patterns in demand and usage in which Bicycles typically travel in one direction. Operator’s objective is to minimize instances, and minimize the duration of those instances, in a cost effective manner, when the demand for an empty Operable Dock or an available Bicycle at a Station is not met by the available supply at that Station. Achieving this objective is a multistep and collaborative process requiring the involvement, cooperation and flexibility on the part of Operator, MTC and the Participating Cities. To achieve this objective, during the period commencing upon the completion of Phase I and ending 6 months after the completion of Phase V (the “Assessment Period”), the parties will (i) observe demand and use patterns as the Program is being implemented to identify the times and locations that a shortage of empty Operable Docks and/or a shortage of available Bicycles arises and the extent of the shortages at those time and locations; and (ii) assess alternative approaches to alleviating outages, including, by way of example, by (A) enlarging existing Stations or adding new Stations in areas in which there is a shortage, (B) finding and utilizing storage areas located near Stations that experience Bicycle shortages so that additional Bicycles can be