May 17, 2022 DDA Board Meeting Packet

REGULAR BOARD MEETING Downtown Development Authority Tuesday, May 17, 2022, 8:30 AM 300 Clematis Street, Suite 200 West Palm Beach, FL 33401 https://us02web.zoom.us/j/81493931225 Dial: +1 301 715 8592 Webinar ID 814 9393 1225 CALL TO ORDER PUBLIC COMMENTS AND QUESTIONS EXECUTIVE DIRECTOR’S REPORT PRESENTATIONS •

rbb Communications

CONSENT CALENDAR (Action Required) Minutes of Regular Board Meeting April 19, 2022 Financial Statements of April 30, 2022

• •

OLD BUSINESS (Action Required) • •

Mobility Coalition Update Trash Receptacle Purchase

NEW BUSINESS (Action Required) • FY 2020-2021 Audit • Circuit Program Merger with Brightline

Raphael Clemente Catherine Ast Mark Bymaster, CPA, CFE Raphael Clemente

ANNOUNCEMENTS ADJOURNMENT

300 Clematis Street, Suite 200, West Palm Beach, FL 33401 Phone: 561.833.8873|Fax: 561.833.5870| www.downtownwpb.com

REGULAR BOARD MEETING Downtown Development Authority Tuesday, April 19, 2022 at 8:30 AM 300 Clematis Street, Suite 200 West Palm Beach, FL 33401 https://us02web.zoom.us/j/81246209068 Dial: +1 301 715 8592 Webinar ID 812 4620 9068

ATTENDANCE DDA Board members in attendance: Chairman Rick Reikenis, Mary Hurley Lane, Cynthia Nalley, Vice Chairman William Jacobson, Varissa Lall Dass, Darryl Houston. DDA Staff in attendance: Vivian Ryland, Tiffany Faublas, Sherryl Muriente. Teneka James-Feaman, Sabrina Lolo, and DDA attorney Max Lohman, guest Jordan Rothenberg with PNC.

CALL TO ORDER Chairman Reikenis called the meeting to order at 8:30 a.m.

PUBLIC COMMENTS AND QUESTIONS None EXECUTIVE DIRECTOR’S REPORT Teneka James-Feaman touched on the upcoming Pairings and Harmony events, as well as the Sidewalk Café meeting with the City to discuss proposed policy changes.

PRESENTATIONS Sherryl Muriente gave a presentation on the Community Foundation Placemaking Grants that the DDA was awarded in the amount of $35,000.00.

CONSENT CALENDAR Vice Chairman Jacobson made a motion to approve the consent calendar. Board Member Nalley seconded the motion. Motion passed unanimously.

Old Business Vivian Ryland presented the revised Investment Management Agreement for the DDA’s account with PNC Bank. Jordan Rothenburg, with PNC Bank was in attendance and shared with the board how the Investment Management Agreement is structured.

Board Member Nalley made a motion to approve the Investment Management Agreement with PNC Bank. Vice Chairman Jacobson seconded the motion. Motion passed unanimously.

New Business Catherine Ast gave a presentation on the Clean Team contract amendment.

Board member Houston motioned to approve the Clean Team contract amendment. Bill Vice Chairman Jacobson seconded the motion. Motion was passed unanimously.

Teneka James-Feaman presented an overview on the Downtown Incentive programs.

Vice Chairman Jacobson made a motion to approve the consent calendar. Board Member Nalley seconded the motion. Motion passed unanimously.

ANNOUNCEMENTS None ADJOURNMENT Motion to adjourn the meeting by Board member Lall Dass. The motion was seconded by Board member Houston.

ASSETS

West Palm Beach Downtown Development Authority Balance Sheet April 30, 2022 Current Assets

PNC Bank Operating Valley National Bank - MMA PNC Investment Management Acct Petty Cash Due from Employees

922,207 159,776 5,000,000 50

Total Current Assets Other Assets Lease Security Deposit

6,082,033

23,000

Total Other Assets

23,000

Total Assets

6,105,033

LIABILITIES AND FUND BALANCE Current Liabilities

37 481 483 95 0

Due to Lincoln National Vision Premium Payable Flexible Spending Withholding Suppl Med Ins. Premium Payable Payroll Liabilities Total Current Liabilities

Fund Balance Net Income

1,096

4,288,189 1,815,748

Total Fund Balance

6,103,937

Total Liabilities and Fund Balance

6,105,033

West Palm Beach Downtown Development Authority Statement of Revenues And Expenditures April 30, 2022 Month

Current Year Revenues - Schedule 1 Expenditures Business Development - Schedule 2 Public Realm Maintenance - Schedule 3 Marketing/Public Relations- Schedule 4 Neighborhood Services - Schedule 5 General Office - Schedule 6 Operations - Schedule 7 Professional Services - Schedule 8 Total Personnel Expense Insurance Expense Total Rent Expense Tax Collection Travel and Training Reserves Total Expenditures

Current Year Surplus (Deficit) DDA Carryforward CRA Carryforward

Total Carry Forwards Net Total Surplus (Deficit)

Year-to-Date

Trolley Gross Annual

Budget

Work Plan

Services

Marketing

Security

Incentives

Y-T-D

Y-T-D

Y-T-D

Y-T-D

Y-T-D

635,000

575,000

324,000

Budget

%

120,344

4,941,407

4,995,470

98.9%

3,357,407

61,091 99,784 116,537 348,817 15,339 3,095 43,165 82,026 0 13,242 0 3,747 0 786,843

106,906 780,071 385,248 966,360 58,203 18,103 96,822 540,464 31,982 118,519 11,694 11,286 0 3,125,658

984,693 1,831,872 1,582,526 2,070,000 104,000 39,050 260,800 890,000 40,000 198,000 18,000 25,285 502,774 8,547,000

10.9% 42.6% 24.3% 46.7% 56.0% 46.4% 37.1% 60.7% 80.0% 59.9% 65.0% 44.6% 0.0% 36.6%

44,871 780,071 0 183,301 58,203 18,103 96,822 540,464 31,982 118,519 11,694 11,286

(666,499)

1,815,749

(3,551,530)

11,274 269,391 280,665

25,990 1,394,627 1,420,617

360,925 3,190,605 3,551,530

(385,834)

3,236,366

0

7.2% 43.7% 40.0%

50,000

62,035 385,248 452,713

330,346

1,895,316

452,713

385,248

330,346

62,035

1,462,091

(402,713)

249,752

244,654

261,965

25,990 277,753 303,743

0 452,713 452,713

0 352,126 352,126

0 250,000 250,000

0 62,035 62,035

1,765,834

50,000

601,878

494,654

324,000

No CPA provides any assurance on these financial statements.

Supplemental Schedules April 30, 2022 SCHEDULE 1 - CURRENT YEAR REVENUES Current Year Revenues Tax Revenues TIF DDA/City Interlocal Agreement DDA/CRA Interlocal CRA Project Funding Interest Income Virgin Trains USA Ticket Sales Sponsorships Fees and Services Grants and Contributions Total Reimbursements Other Miscellaneous Income Rosemary Square MOU Total Current Year Revenues

Gross

Month

Year-to-Date

Trolley

Annual

Budget

Budget

%

Work Plan

Services

Marketing

Security

Incentives

Y-T-D

Y-T-D

Y-T-D

Y-T-D

Y-T-D

635,000

575,000

324,000

635,000

575,000

324,000

85,314 0 0 0 0 30 0 0 0 35,000 0 0 0

2,444,156 (2,278,400) 0 4,738,780 0 191 0 0 0 36,291 389 0 0

2,460,385 (2,278,400) 0 4,813,385 0 100 0 0 0 0 0 0 0

99.3% 100.0% 0.0% 98.5% 0.0% 191.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%

2,444,156 (2,278,400) 0 3,154,780 0 191 0 0 0 36,291 389 0 0

120,344

4,941,407

4,995,470

98.9%

3,357,407

No CPA provides any assurance on these financial statements.

50,000

0 50,000

West Palm Beach Downtown Development Authority Supplemental Schedules April 30, 2022 Gross Month

Year-to-Date

SCHEDULE 2 - BUSINESS DEVELOPMENT Total Property and Buss Incentives 50,000 Facade Improvements 10,000 Leasing/Brokers Meeting 0 Total Business Training and Support 0 Business Partnerships 0 Grand Open/New Business 1,091

Trolley

Annual

Budget

Work Plan

Services

Marketing

Security

Incentives

Budget

%

Y-T-D

Y-T-D

Y-T-D

Y-T-D

Y-T-D

62,035 10,000 5,000 19,290 9,490 1,091

399,000 206,515 40,500 194,638 105,000 39,040

15.5% 4.8% 12.3% 9.9% 9.0% 2.8%

10,000 5,000 19,290 9,490 1,091

61,091

106,906

984,693

10.9%

44,871

SCHEDULE 3 - PUBLIC REALM MAINTENANCE 58,944 Clean Team 28,620 Graffitti Maintenance 1,500 Landscape Maintenance 10,720 Holiday Lights 0 Signage & Pedestrial Wayfinding 0 Capital Projects/Alleys 0

254,907 171,717 7,175 169,064 165,198 0 12,010

500,000 415,000 25,000 607,087 175,000 109,785 0

51.0% 41.4% 28.7% 27.8% 94.4% 0.0% 0.0%

254,907 171,717 7,175 169,064 165,198 0 12,010

Total Physical Environment

780,071

1,831,872

42.6%

780,071

Total Business Development

Pressure Washing/Street Clean

99,784

62,035

No CPA provides any assurance on these financial statements.

0

0

0

62,035

0

0

0

0

West Palm Beach Downtown Development Authority Supplemental Schedules April 30, 2022 Gross Month

SCHEDULE 4 - MARKETING/PR Collateral Materials

Year-to-Date

Trolley

Annual

Budget

Work Plan

Services

Marketing

Security

Incentives

Budget

%

Y-T-D

Y-T-D

Y-T-D

Y-T-D

Y-T-D

3,750 11,300 0 6,250 35,018 39,840 20,379

41,500 46,150 3,328 29,205 132,690 79,122 49,253

173,873 226,240 85,000 179,522 542,891 175,000 200,000

23.9% 20.4% 3.9% 16.3% 24.4% 45.2% 24.6%

116,537

385,248

1,582,526

24.3%

0

SCHEDULE 5 -NEIGHBORHOOD SERVICES Homeless Outreach 150,000 Transportation 96,399 Security and Policing 99,059 Public Space Programs 165 Community Engagement 2,194 Residential Programming 1,000

150,500 452,713 330,346 13,965 8,165 10,671

75,000 905,000 825,000 140,000 75,000 50,000

200.7% 50.0% 40.0% 10.0% 10.9% 21.3%

150,500

Total Res. Services/Quality of Life

966,360

2,070,000

46.7%

183,301

PR/Marketing

Retail Promotion Value Added Events Advertising and Promotion Marketing Programs

Community & Cultural Promotion Total Marketing/PR

348,817

41,500 46,150 3,328 29,205 132,690 79,122 49,253 0

385,248

0

0

452,713 330,346 13,965 8,165 10,671

No CPA provides any assurance on these financial statements.

452,713

0

330,346

0

West Palm Beach Downtown Development Authority Supplemental Schedules April 30, 2022 Gross Month

SCHEDULE 6 - GENERAL OFFICE General Office Expense

Year-to-Date

Trolley

Annual

Budget

Work Plan

Services

Marketing

Security

Incentives

Budget

%

Y-T-D

Y-T-D

Y-T-D

Y-T-D

Y-T-D

Equipment, Computers, Programs

2,422 0 12,917

11,767 451 45,985

35,000 12,000 57,000

33.6% 3.8% 80.7%

11,767 451 45,985

Total General Office

15,339

58,203

104,000

56.0%

58,203

Telephone Expense

872 519 552 0 1,152

8,376 2,203 1,851 32 5,641

9,000 10,250 5,500 300 14,000

93.1% 21.5% 33.7% 10.7% 40.3%

8,376 2,203 1,851 32 5,641

Total Operations

3,095

18,103

39,050

46.4%

18,103

General Postage

SCHEDULE 7 - OPERATIONS Dues Hospitality Board Meeting Publications

No CPA provides any assurance on these financial statements.

0

0

0

0

0

0

0

0

West Palm Beach Downtown Development Authority Supplemental Schedules April 30, 2022 Gross Month

Year-to-Date

SCHEDULE 8 - PROFESSIONAL SERVICES Accounting 2,000 Professional Service 0 Audit 15,600 Studies and Surveys 25,000 Legal 565 Total Professional Services

43,165

Trolley

Annual

Budget

Work Plan

Services

Marketing

Security

Incentives

Budget

%

Y-T-D

Y-T-D

Y-T-D

Y-T-D

Y-T-D

12,100 12,839 15,600 50,872 5,411

24,000 95,000 27,500 82,300 32,000

50.4% 13.5% 56.7% 61.8% 16.9%

12,100 12,839 15,600 50,872 5,411

96,822

260,800

37.1%

96,822

Some rounding error may occur.

No CPA provides any assurance on these financial statements.

0

0

0

0

MEMO TO:

DDA Board Rick Reikenis, Chairman Bill Jacobson, Vice Chairman Bob Sanders Mary Hurley Lane Cynthia Nalley Varisa Lall Dass Daryl Houston

FROM: Catherine Ast, District Services Manager RE:

Litter Prevention Program

DATE: May 17, 2022

In March 2021, Staff requested permission to purchase new trash cans for Clematis Street to replace old, damaged, and ineffective cans that are currently there. At that time the Board approved a quote of just under $34,000. For the course of several months, we had continual backorders and damaged shipments from the company we purchased the cans from. After six months, we completely cancelled the order. This order remained active only because no other supplier had the product.

With assistance from Public Works, we have been looking for alternative cans and suppliers. The can that was originally chosen is unavailable in the amount needed so a different can has been found and priced.

Attached is the quote for the newly chosen can and it is the least expensive one we have found that meets the needs. We are requesting a total cost increase from $34,000.00 to $54,026.47 including shipping to move forward and finalize this project.

Staff recommends approval of this request.

MEMO To:

DDA Board

Rick Reikenis, Chairman William Jacobson, Vice Chairman Mary Hurley Lane Robert Sanders, Esq. Cynthia Nalley Varisa Lall Das Daryl Houston

FROM: Raphael Clemente, Executive Director RE:

Circuit Mobility DDA/Brightline Cross Use Agreement

DATE: Tuesday, May 17th, 2021

_________________________________________________________________________________________

Currently Brightline and the DDA have separate Transit as a Service Agreements with Circuit Transit, Inc. for the provision of on-demand micro transit within the greater Downtown area.

To maximize the services contracted for by both the DDA and Brightline, staff has worked with Brightline on terms for a Cross Use Agreement that will benefit both Brightline and the DDA in accomplishing the shared goal of providing free, convenient mobility for residents and visitors to the Downtown area. The Cross Use Agreement will allow the vehicle fleets of both entities to flexibly serve the needs growing ridership.

There is no fiscal impact to the DDA as a result of this agreement. Staff recommends approval of the proposed agreement.

300 Clematis Street, Suite 200, West Palm Beach, FL 33401 Phone: 561.833.8873|Fax: 561.833.5870| www.downtownwpb.com

CROSS USAGE AGREEMENT FOR TRANSPORTATION SERVICES This Cross-Use Agreement (the "Agreement") dated as of _________ , 2022 (the "Effective Date"), by and between Brightline Trains Florida LLC "Brightline") and West Palm Beach Downtown Development Authority ("the DDA").

WHEREAS Brightline and the DDA desire to work cooperatively, but independently, to cross promote each other's business; WHEREAS Brightline and the DDA currently have separate Master Transit as a Service Agreements with Circuit Transit, Inc. (“Circuit”) for the provision of on-demand microtransit (the “Circuit Solution”) to both Brightline and the DDA; WHEREAS Brightline, the DDA and Circuit desire to maximize the services contracted for

by Circuit for the benefit of both Brightline and the DDA and in connection with accomplishing these goals, the Parties desire to enter into an Agreement in accordance with the terms below which shall govern the provision of Transportation Services by Circuit to both Brightline and the DDA. NOW, THEREFORE in consideration of the covenants, promises and representations set forth herein and for other good and valuable consideration, the Parties hereto hereby agree as follows: 1.0

Term and Termination 1.1 Term of Agreement. The term of this Agreement begins upon execution of this Agreement and continues without interruption until September 30, 2022 (the “Term”).

1.2 Termination. If an obligation under this Agreement is materially breached, the nonbreaching party may provide written notice specifying the nature of the breach and the breaching party will have thirty (30) days from receipt of notice to cure. If not so cured, the non-breaching party may terminate this Agreement by providing a second written notice of immediate termination. In addition, this Agreement, including all Transportation Services under them, shall terminate automatically and immediately upon either party’s insolvency or any attempt by either party to obtain protection from creditors or wind down operations, unless otherwise agreed by the opposing party in a written notice. Upon termination or expiration of this Agreement, all copies and embodiments of each party’s Confidential Information must be returned or destroyed, in which case, the party who destroyed the Confidential Information must certify that it has destroyed the other party’s Confidential Information. The notification by either party of its intent to terminate this Agreement does not relieve either party of any obligations that have accrued on or before the date on which termination becomes effective nor does it have any effect on or create any obligations in furtherance of the

pre-existing Master Transit as a Service Agreements between Brightline and Circuit and the DDA and Circuit.

2.0

Applicable Locations for Circuit Vehicles as per the Terms of the Master Transit as a Service Agreement with Circuit: 2.1 The Brightline locations include each of the following: 2.1.1 511 Evernia St, West Palm Beach, FL 33401 2.1.2 Brightline shall provide Circuit with parking and electric vehicle charging. In the event that sufficient vehicle charging is not provided by Brightline, Brightline will incur an additional charging fee as indicated in the statement of work.

2.2 The DDA locations include each of the following: 2.2.1 [INSERT DDA LOCATIONS / SERVICE FOOTPRINT]

3.0

Services 3.1 Vehicles Included Fleets. Brightline Fleet vehicles shall include a maximum of fiv e (5) Polaris GEM electric golf carts (“Brightline Dedicated Fleet”) and the DDA’s Fleet vehicles operated by Circuit shall include a maximum of five (5) Polaris GEM electric golf carts (“DDA Dedicated Fleet”). Circuit shall recommend and Brightline and the DDA will have final approval over the make and model of vehicles in the Dedicated Fleet.

3.2 Hours of Brightline Operation. Both Brightline and the DDA commit to the availability of the Dedicated Fleet based its respective operations and the terms of its respective agreements with Circuit however the Dedicated Fleet shall operate for the benefit of both Parties, 365 days a year and up to 15 hours per day from approximately 5 a.m. to 11 p.m. (the “Dedicated Fleet Service Hours”).

3.3 Usage of Dedicated Fleet by the Parties. Both Brightline and the DDA will have the ability to utilize the Dedicated Fleet and make the Dedicated Fleet available to its customers and or 3rd parties during the Dedicated Fleet Service Hours. Rides will be booked on a “first come, first served basis.” Neither Brightline nor the DDA make any commitment or representation of any percentage or amount of availability of the Dedicated Fleet to one party or the other. The Dedicated Fleet is intended to be available to both Parties to the extent available during the Dedicated Fleet Service Hours.

3.3.1 Dedicated Fleet Branding.

Brightline Dedicated Fleet shall be wrapped in a heavy-duty vinyl film with Brightline approved branding (the “Wrap”).

DDA Dedicated Fleet shall be wrapped __________.

3.3.2 Brightline shall be solely responsible for all reasonable costs directly and indirectly related to the installation, repair and removal of the Wrap on Brightline Dedicated Vehicles only, except to the extent those costs that arise out of Circuit and/or its contractor’s negligence or willful misconduct.

3.3.3 The DDA shall be solely responsible for all reasonable costs directly and indirectly related to the installation, repair and removal of the Wrap on the DDA Dedicated Vehicles only, except to the extent those costs that arise out of Circuit and/or its contractor’s negligence or willful misconduct.

3.3.4 Fees For Dedicated Fleet Service Hours. Brightline and the DDA shall pay to

Circuit fees at rates in accordance with those outlined in their respective Transit as a Service Agreements with Circuit. Neither party is responsible for payment of any fees to the other party or any other obligation (contractual or otherwise) arising out of the provision of services by Circuit pursuant to the Master Transit as a Service Agreement.

3.4 Additional Services. During the Term, either Party may require additional services from Circuit and however the Party making such request shall be solely responsible for fees associated with those changes. Any change to the commitment by either Party to the Dedicated Fleet or Dedicated Fleet Service Hours shall be agreed to in writing by both parties.

4.0

Intellectual Property and Related Rights. Intellectual Property. Each party (the "Granter Party") hereby grants to the other party (the "Grantee Party") a limited, royaltyfree, non-exclusive, revokable, and non-transferrable right and license to use its name and marks solely as may be provided by Grantor Party in its sole discretion (the "Intellectual Property") and solely in connection with the Grantee Party's fulfillment of its obligations pursuant to this Agreement. Each Grantee Party acknowledges the exclusive ownership of the Grantor Party in Granter Party's Intellectual Property and acknowledges that Grantee Party's use of Grantor Party's Intellectual Property inures to the benefit of the Grantor Party, including, without limitation, any goodwill, and that Grantee Party will not acquire any ownership in Granter Party's Intellectual Property as a result of this Agreement. No Grantee Party shall utilize any Grantor Party's Intellectual Property in any manner that would cause any person reasonably to infer or convey the impression that the parties are affiliated or otherwise acting on behalf of each other outside of the promotional activities described in this Agreement, or which would diminish the value of the Intellectual Property or harm the reputation of the Grantor Party. The provisions of this section shall survive the expiration or earlier termination of this Agreement.

5.0

Performance of Obligations. The Transportation Services to be performed pursuant to this Agreement shall be performed at all times by Circuit and its employees and not by independent contractors unless mutually agreed to in writing by each Party. As per the terms of its Master Transit as a Service Agreements between Circuit and Brightline and Circuit and the DDA, respectfully, Circuit shall at all times be responsible, at its sole cost and expense, for (a) the recruitment and management of its employees; (b) performance of all maintenance and repairs; (c) procuring all insurance and operating supplies necessary for the safe operation of the vehicles and Transportation Services provided by Circuit pursuant to this Agreement; Circuit and (d) providing all safety training, monitoring and corrective actions as may be necessary.

6.0

Confidentiality 6.1 Confidential Information. The Parties anticipate exchanging certain non-public information concerning their respective organizations and operations, and their businesses and proposals which information, together with notes, analyses, compilations, studies or other documents prepared by it or its representatives and which is identified as Confidential Information (the “Disclosing Party”) to the other

Party to this Agreement (the “Receiving Party”). Based upon containing or otherwise reflecting such information is hereinafter referred to as the “Confidential Information”.

6.2 Use of Confidential Information. Each party may use the Confidential Information solely for the purpose of performing its obligations arising pursuant to this Agreement and not for any other purpose and shall at all times keep such Confidential Information. Confidential Information may be disclosed to such of our or your directors, officers, employees, and advisors (collectively, the “Representatives”) as need to know such information for the purpose of assisting us and you in evaluating and negotiating the terms of any Transaction. Each party will advise its respective Representatives that the Confidential Information is confidential and that by receiving such information each Representative is agreeing to be bound by this Agreement and not to use such information for any purpose other than as described herein. In addition, each party agrees to be responsible for any breach of this Agreement by its respective Representatives.

6.3 Confidential Information shall not include information which (i) is or becomes generally available to the public other than (a) as a result of a disclosure by the party receiving such information hereunder or its Representatives (the “Recipient”) or any other person who directly or indirectly receives such information from the Recipient, or (b) in violation of a confidentiality obligation to the party providing such information hereunder (the “Provider”) known to the Recipient, (ii) is or becomes available to the Recipient on a non-confidential basis from a source which, to the knowledge of the Recipient, is entitled to disclose it; (iii) was known to the Recipient prior to its disclosure to it by the Provider; or (iv) is verifiably developed by the Recipient without the benefit of the information provided by the Provider.

6.4 Notwithstanding any other terms, conditions, or provisions set forth in this Agreement, Brightline specifically acknowledges that the DDA is public governmental entity, subject to the requirements of Chapter 119, Fla. Stat. In response to requests for public records, the DDA shall disclose all public records in its custody and control in accordance with the requirements set forth in Chapter 119, Fla. Stat. for which an exemption or confidentiality provision does not apply.

7.0

Indemnification and Allocation of Liability.

7.1 Except as specifically provided in Section 8.4 below, the DDA will indemnify, defend and hold Brightline, its parent, subsidiaries and affiliates, and the respective members, managers, partners, officers, directors, joint venturers, shareholders, agents, representatives, servants, employees, consultants, contractors, successors and assignees of the foregoing (“Brightline Indemnified Parties”) harmless from any and all third party demands, claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) whatsoever arising out of or in connection with (a) the negligent acts or omissions (alleged or actual) of the DDA or anyone acting on behalf of the DDA (including but not limited to any of its contractors (independent or otherwise), subcontractors (independent or otherwise), agents, employees, or affiliates) (“the DDA Parties”) except to the extent caused by the negligence or intentional misconduct of the Brightline Indemnified Parties, or (b) a third party claim alleging that any act or omission of the DDA, or any of its employees,

agents or contractors, infringes, misappropriates or violates a third party’s Intellectual Property rights.

7.2 Except as specifically provided in Section 8.4 below, Brightline will indemnify, defend and hold the DDA, its parent, subsidiaries and affiliates, and the respective members, managers, partners, officers, directors, joint venturers, shareholders, agents, representatives, servants, employees, consultants, contractors, successors and assignees of the foregoing (“DDA Indemnified Parties”) harmless from any and all third party demands, claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) whatsoever arising out of or in connection with (a) the negligent acts or omissions (alleged or actual) of Brightline or anyone acting on behalf of Brightline (including but not limited to any of its contractors (independent or otherwise), subcontractors (independent or otherwise), agents, employees, or affiliates) (“the Brightline Parties”) except to the extent caused by the negligence or intentional misconduct of the DDA Indemnified Parties, or (b) a third party claim alleging that any act or omission of Brightline, or any of its employees, agents or contractors, infringes, misappropriates or violates a third party’s Intellectual Property rights.

7.3 In the event of any and all third party demands, claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) whatsoever arising out of or in connection with (a) the negligent acts or omissions (alleged or actual) of Circuit or anyone acting on behalf of Circuit (including but not limited to any of its contractors (independent or otherwise), subcontractors (independent or otherwise), agents, employees, or affiliates) (“the Circuit Parties”) arising out of or in connection with the provision of the Circuit Solution, except to the extent caused by the negligence or intentional misconduct of the DDA Indemnified Parties and/or the Brightline Indemnified Parties, or (b) a third party claim alleging that any act or omission of Circuit, or any of its employees, agents or contractors, infringes, misappropriates or violates a third party’s Intellectual Property rights, the assumption of liability of either Party may not in any instances exceed the following parameters of allocation of risk: 7.3.1

The DDA shall be responsible for any loss, injury, or damage to a DDA Passenger or DDA Invitee utilizing the Circuit service, regardless of circumstances or cause, subject to the terms and provisions of this Section 7.

7.3.2 Brightline shall be solely responsible for any loss, injury, or damage to a Brightline Passenger or Brightline Invitee utilizing the Circuit service, regardless of circumstances or cause, subject to the terms and provisions of this Section 7.

7.3.3 For purposes of this Agreement, a DDA Passenger is defined as a passenger in which neither their planned origins or planned destination include a location within 100 feet of any public entrance to the Brightline Station in West Palm Beach and a Brightline Passenger is defined as passenger in which either the planned origins or planned destination include a location within 100 feet of any public entrance to the Brightline Station in West Palm Beach.

7.4 Procedure. As an express condition of the foregoing indemnification obligations, the Parties hereby agree that: the indemnified Party shall promptly (and in no event more than seven (7) days after receipt or discovery) notify the indemnifying Party in writing, of any threat, warning, or notice of any such claim or action, with copies of any and all documents which the Indemnified Party may receive relating thereto; the indemnified Party shall cooperate with all reasonable requests of the indemnifying Party (at the indemnifying Party’s expense) in defending or settling such claim; the indemnifying Party shall be allowed to control the defense and settlement of such claim; the indemnified Party shall have the right, at its option and expense, to participate in the defense of any action, suit or proceeding relating to such a claim through counsel of its own choosing and at the indemnified party’s sole expense; the indemnifying Party may not settle any claim that includes an admission of liability, fault, negligence or wrongdoing on the part of the indemnified Party unless the indemnified Party provides prior written consent, or unless the indemnifying Party and the third-party unconditionally releases the indemnified Party of all liability that is the subject of the indemnification obligation and such settlement does not adversely affect the indemnified Party’s business; and each indemnified Party will undertake commercially reasonable efforts to mitigate any loss or liability resulting from an indemnification claim related to or arising out of this Agreement. Additionally, the DDA’s indemnification of Brightline, as set forth in Section 7.1, hereinabove, shall be subject to the monetary limitations set forth at Section 768.28, Fla. Stat.

8.0

Warranties; limitation of liability; insurance.

8.1 Warranties. Both parties warrants that: (a) from the Effective Date until the expiration or termination of this Agreement, they will comply in all material respects with this Agreement; (b) each has all right, power and authority to commit to the provision of the Circuit Solution and provide the Transportation Services through Circuit as contemplated by the Master Transit as a Service Agreement without the need to obtain any further authority or consent, written or otherwise from Circuit or any other party; (c) that it shall comply with applicable federal, state and local laws.

8.2 Disclaimers. WITHOUT PREJUDICE TO OTHER TERMS AND CONDITIONS CONTAINED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW: (a) EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NONINFRINGEMENT).

8.3 Limits on and Exclusions from Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR LOST DATA EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations and exclusions in this Section apply to all claims or causes of action under whatever theory brought and regardless of whether a party was advised of the possibility of the claim.

8.4 Insurance 8.4.1 As provided in the Agreement, each Party shall ensure that Circuit and any of its subcontractor(s) shall, at a minimum, procure and maintain for the duration of the Term of the Agreement the following insurance in accordance with the terms and conditions of the Agreement, unless otherwise agreed to in writing by mutual consent of the parties.

A. Statutory Workers’ Compensation and Employer's Liability Insurance, as required by the laws of the State of Florida, but not less than $1,000,000 each accident, $1,000,000 disease policy limit, $1,000,000 disease each employee, and $1,000,000 Employers’ Liability; B. Comprehensive General Liability Insurance, of $1,000,000 per occurrence, $2,000,000 aggregate, for bodily injury, personal injury, death and property damage including operations, products and completed operations and contractual liability coverage of all such liabilities arising pursuant to this Agreement; C. Automobile Liability Insurance, including coverage for hired and nonowned motor vehicles as defined in the State of Florida, with limits $2,000,000 property damage and personal injury, on a per occurrence basis for both owned and non-owned vehicles; D. Umbrella Liability Insurance, of not less than $5,000,000 combined single limit and aggregate limit, on an occurrence basis, in excess of the underlying insurance otherwise required in connection with the Agreement, which is at least as broad as each and every one of those underlying policies; and E. Cyber Security Insurance in an amount not less than $2,000,000 combined single limit, covering all acts, errors, omissions, negligence, infringement of intellectual property (except patent and trade secret) and network and privacy risks (including coverage for unauthorized access, failure of security, breach of privacy perils, wrongful disclosure of information, as well as notification costs and regulatory defense) in the performance of Transportation Services for Customer or on behalf of Customer hereunder.

Such insurance shall be maintained in force at all times during the Term of the Agreement and for a period of three (3) years thereafter for Transportation Services completed during the Term of the Agreement.

A certificate evidencing the coverage under each policy shall be delivered to each Party upon request. As per the terms of the Master Transit as a Service Agreement, Circuit shall provide each Party at least thirty (30) days prior written notice of any material change, non-renewal, or cancellation of the policy. Each insurance policy shall be with an insurance company reasonably acceptable to each Party. All policies of liability insurance (except Workers’ Compensation and Errors and Omission Insurance) shall name the Brightline Indemnified Parties and DDA Indemnified as "Additional Insureds".

Circuit’s insurance shall be primary to any other insurance that may be available to any Additional Insured. If any Additional Insured has other insurance applicable to any loss, any such other insurance shall be non-

contributing with and excess to Circuit’s insurance. The amount of the Circuit’s liability or required insurance will not be reduced by the existence of such other insurance. Additional Insured status for any party required to be named as an Additional Insured under this Agreement shall extend to the full limits of liability maintained by the Circuit even if those limits of liability are in excess of those required by this Agreement. None of the requirements contained herein as to types, limits nor approval of insurance coverages to be maintained by Circuit by either Party is intended to and shall not in any manner limit, qualify or quantify the liabilities and obligations of Circuit under this Agreement or otherwise provided by law. Circuit hereby waives all rights of recovery and shall, use commercially reasonable efforts to cause its insurers to waive their right of subrogation against all Additional Insureds hereunder, and Circuit’s policies shall be endorsed as necessary so that they are not invalidated by such waiver.

9.0

Regulatory Compliance.

9.1 Circuit’s Obligations. As per the terms of the Master Transit as a Service Agreement between Brightline and Circuit and the DDA and Circuit, Circuit shall at all times carry out and provide the Transportation Services in compliance with all Applicable Laws including but not limited to the United States Department of Transportation (USDOT) and Florida Department of Transportation (FDOT), as applicable. For any change in the Transportation Services required by a change in Applicable Laws, Circuit shall promptly notify both Parties thereof so that the Circuit and both Parties may discuss any changes to the Transportation Services required for on-going compliance and mitigate the adverse effects of such change including minimization of increase in costs of the Transportation Services arising therefrom. Without prejudice to the rest of this Section, Circuit shall use commercially reasonable efforts to minimize any disruption caused by any changes in Applicable Laws introduced pursuant to this Section. Both Parties acknowledge and agree that the Transportation Services hereunder do not include, and neither party intends that they be construed as including, any legal, financial, tax or compliance advisory Transportation services with respect to the Transportation Laws.

9.2 Consents; Permits. Circuit shall obtain all governmental registrations, licenses, permits, approvals and certifications required by Applicable Laws for the performance of the Transportation Services hereunder and shall pay all governmental fees associated therewith. both Parties shall obtain all governmental registrations, licenses, permits, approvals and certifications required by Applicable Laws in connection with this Agreement, as necessary to operate its intercity passenger rail service in the State of Florida and shall pay all governmental fees associated therewith. To the extent required for the performance of Transportation Services pursuant to this Agreement, both Parties also shall obtain from its third party vendors, licensors, supply-chain partners, clients, customers, distributors or similar parties, any authorization or consent necessary for Service Provider to access or utilize the Transportation Services, property or facilities of such parties if necessary for Circuit’s performance of the Transportation Services.

10.0

General Provisions.

10.1 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns, in accordance with the terms hereof. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by a Party, in whole or in part without the prior written consent of the other Party, and any attempt to make any such assignment without such consent shall be null and void.

10.2 Corporate Approval. This Agreement and the transactions contemplated hereby shall have been adopted and approved by an authorized representative of each Party as may be required.

10.3 Entire Agreement; Amendments and Waivers. This Agreement constitutes the entire agreement among the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. This Agreement may be supplemented, modified or amended by action by the written agreement of each Party and such supplement, modification or other amendment of this Agreement shall be binding on the Parties. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

10.4 Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given (a) on the date of service if served personally on the Party to whom notice is to be given, (b) on the date sent by email if delivered without receipt of any “bounce back” or similar notice indicating failure of delivery, or (c) one Business Day after delivery to a reputable overnight delivery service for next Business Day delivery. If the day on which a notice or other communication is not a Business Day, then such notice or other communication will instead be deemed given on the next Business Day. Such notices, requests, demands and other communications will be addressed to the Parties as follows: If to Brightline:

If to the DDA:

161 NW 6th Street, Suite 900 Miami, FL 33136 Patrick Goddard, President Patrick.Goddard@gobrightline.com

300 Clematis Street, Suite 200 West Palm Beach, FL 33401 Raphael Clemente, Executive Director rclemente@downtownwpb.com

With a copy to:

With a copy to:

161 NW 6th Street, Suite 900 Miami, FL 33136 Cynthia Bergmann, General Counsel Cynthia.Bergmann@gobrightline.com

Lohman Law Group, P.A. 500 S. Australian Ave., Suite 531 West Palm Beach, FL 33401 Attn: R. Max Lohman, Esq. max@lohmanlawgroup.com

10.5 Specific Performance Each Party agrees that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof and that the other Party shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy at Law or equity without the necessity of demonstrating the inadequacy of monetary damages.

10.6 Third-Party Beneficiaries Except as provided for in this Agreement, nothing expressed or referred to in this Agreement will be construed to give any Person other than the Parties to this Agreement (and their successors and assigns) any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement.

10.7 Assignment. Both parties may assign this Agreement without the other party’s prior written consent however the terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.

10.8 Governing Law and Jurisdiction This Agreement shall be construed, interpreted and the rights of the Parties determined in accordance with the Laws of the State of Florida (without reference to any choice of Law rules that would require the application of the Laws of any other jurisdiction). Except as otherwise provided in this Agreement, each Party hereto irrevocably agrees that any action with respect to this Agreement or for recognition and enforcement of any judgment in respect hereof brought by another Party hereto or its successors or assigns shall be brought exclusively in the federal or state courts located in the State of Florida and each of the Parties hereto hereby (a) irrevocably submits with regard to any such action for itself and in respect to its property, generally and unconditionally, to the exclusive personal jurisdiction of the aforesaid courts in the event any dispute arises out of this Agreement or any transaction contemplated hereby, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not bring any action relating to this Agreement or any transaction contemplated hereby in any court other than the aforesaid courts. Any service of process to be made in such Action may be made by delivery of process in accordance with the notice provisions contained herein. Each of the Parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any Action with respect to this Agreement.

10.9 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ANCILLARY AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

10.10Severability. If any provision of this Agreement is deemed or held to be illegal, invalid or unenforceable, this Agreement shall be considered divisible and inoperative as to such provision to the extent it is deemed to be illegal, invalid or

unenforceable, and in all other respects this Agreement shall remain in full force and effect; provided, however, that if any provision of this Agreement is deemed or held to be illegal, invalid or unenforceable the Parties agree to replace such illegal, invalid or unenforceable provision with a provision that is legal, valid and enforceable that achieves the original intent of the Parties as closely as possible.

Further, should any provision contained in this Agreement ever be reformed or rewritten by any Governmental Authority of competent jurisdiction, such provision as so reformed or rewritten shall be binding upon all Parties hereto.

10.11No Presumption Against Drafting Party. The Parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

10.12Force Majeure.

Neither Party will be liable for any failure in performance (including failure to operate passenger rail service), due to any of the following causes, to the extent beyond its reasonable control: acts of God, riots, war, terrorist act, epidemic, pandemic, government mandated quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, rail accident, generalized lack of availability of raw materials or energy (a “Force Majeure”), provided such Party gives the other Party notice thereof promptly. In such a Force Majeure the time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event more than ninety (90) days. If after such (90) day period, the Party unable to perform due to Force Majeure has been unable to recommence performance of its obligations, then either Party may terminate this Agreement by providing written notice to the other Party, and thereafter, the Parties shall be released of any further liability under this Agreement.

10.13Other Remedies. Any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby,

by Law or equity upon such Party. The exercise of a remedy will not preclude the exercise of any other remedy.

10.14Counterparts; Electronic Signature This Agreement may be executed in counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. Any executed counterpart to this Agreement may be delivered by electronic means including pdf or any electronic signature complying with the United States federal ESIGN Act of 2000.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date first written above.

BRIGHTLINE:

WEST PALM BEACH DOWNTOWN DEVELOPMENT AUTHORITY:

By:

By: ______________________________

Name: Patrick Goddard

Name:

Title: President

Title:

Date:

Date:

Exhibit A Usage Plan for Circuit Dedicated Fleet Current DDA Usage Plan DDA Circuit Vehicle Fleet at launch of this agreement will operate during the following hours: Monday – Wednesday | 7:30 a.m. – 9 p.m.

Thursday and Friday | 7:30 a.m. – 10 p.m.

Saturday | 10 a.m. – 10 p.m.

Sunday | 10 a.m. – 8 p.m.

Brightline Circuit Vehicle Fleet at the launch of this agreement will operate between the hours of 6 a.m. – 11 p.m., seven days a week.

These hours can be changed at each organization’s discretion and upon written agreement between the parties.

The DDA, Brightline and Circuit will work cooperatively on hours of vehicle fleet service to satisfy known demand across both services. While under no obligation to do so, both parties may explore ways to cooperatively provide similar levels of investment in service hours to test options for long term collaborative agreements.