Agmt15 Bay Area Bike Share Agreement

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203193300.19 -15- deployed quickly, (C) prioritizing Stations by demand and time of demand so that Operator may, at any particular time, focus more attention on those Stations with the highest demand at that time and less attention on those Stations with weaker demand at that time and have greater flexibility to address those Stations with weaker demand, and (D) identifying the optimal time of day for Operator to transport Bicycles from areas in which there is a shortage of empty Operable Docks to areas in which there is a shortage of Bicycles, which optimality will take into account when it is most efficient for Operator to transport the Bicycles in order to meet the anticipated demand at the transferee Stations. As the parties are developing approaches to alleviating outages during the Assessment Period, the parties shall also reformulate a commercially reasonable KPI for Rebalancing. While Operator will strive to reduce and eliminate Cluster Outages at all times commencing on the completion of a Phase, liquidated damages for the Rebalancing KPI will not be assessed for any Phase until 6 months after the completion of such Phase. The Rebalancing KPI will be refined and reformulated during the Assessment Period, and the KPI, as refined and reformulated, will be fully implemented and effective immediately after the end of the Assessment Period. The parties recognize that as patterns of use and demand, as well as levels of use and demand, change from and after the Assessment Period, different outages may arise, which will also need to be addressed in the manner set forth above. 2.6.3 Subject to Events of Force Majeure, if Operator fails to comply with the KPIs, Operator shall be required to pay MTC liquidated damages as calculated in Appendix A, provided that the maximum aggregate liquidated damages payable by Operator in any calendar year for failure to comply with the KPIs is 4% of Ridership Revenue for such calendar year. (a) MTC is entitled to liquidated damages for failure of Operator to comply with the KPIs by notice (a “KPI Failure Notice”) given to Operator (i) not more frequently than once per quarter, and (ii) not later than 120 days after the occurrence of the related failure, except with respect to the failure to comply with a KPI that is measured on an annual basis, for which the KPI Failure Notice shall be given by March 31 of the following calendar year. Each KPI Failure Notice shall provide specific and detailed information about the failure to comply and the amount of the liquidated damages due in connection therewith. (b) Prior to the later of (a) 30 days after Operator’s receipt of a KPI Failure Notice and (b) the end of the calendar quarter in which such KPI Failure Notice is given (the later of (a) and (b) being the “KPI LD Payment Date”), Operator shall either pay the full amount of liquidated damages set forth in the KPI Failure Notice or 50% of such amount along with a notification to MTC that Operator seeks to contest, in good faith, the assessment of the liquidated damages (a “KPI Contest Notice”). The KPI Contest Notice shall provide specific and detailed information that rebuts or challenges the information contained in the corresponding KPI Failure Notice. After a KPI Contest Notice is given, any disputes relating to the subject matter of the KPI Failure Notice and the KPI Contest Notice shall be resolved in accordance with the Dispute Resolution Process. (c) If Operator does not timely give a KPI Contest Notice in response to a KPI Failure Notice, then interest on the liquidated damages set forth in the KPI