Item - 2013.EX35.8

City Council on November 13, 14, 15 and 18, 2013, adopted the following:

1.         City Council adopt the revised confidential recommendations contained in the Confidential Attachment 1 to the supplementary report (November 11, 2013) from the General Manager, Transportation Services (EX35.8a).

2.         City Council authorize the public release of the recommendations contained it Confidential Attachment 1 to the supplementary report (November 11, 2013) from the General Manager, Transportation Services and that the balance of Confidential Attachment 1 remain confidential as it contains information which pertains to the security of the property of the City and its local boards

3.         City Council direct that Confidential Attachment 1 to the report (October 15, 2013) from the General Manager, Transportation Services remain confidential in its entirety as it contains information which pertains to the security of the property of the City and its local boards.

4.         City Council request the Chief Planner and Executive Director, City Planning to consider, and where appropriate require, provision of bike sharing stations and bikes as part of the planning approval process with the goal of complementing, strengthening and expanding the bike share program.

5.         City Council direct the Chief Planner and Executive Director, City Planning and the General Manager, Transportation Services to report to the February 27, 2014 meeting of the Planning and Growth Management Committee on a review of Toronto’s parking standards for new multi-unit residential and commercial developments with the objective to consider the expansion of public bike sharing programs at net zero costs to the City.

6.         City Council direct the General Manager, Transportation Services to consult with Councillors who support the expansion of the public bike share program in their respective wards to create estimated timetables for expansion and implementation.

7.         City Council confirm the confidential instructions issued to staff during the Closed Session.

The confidential recommendations contained in Confidential Attachment 1 to the supplementary report (November 11, 2013) from the General Manager, Transportation Services were adopted by City Council and are now public:

1.         City Council approve the termination of the Agreement between BIXI Toronto Inc. ("BIXI") and the City and the transfer of ownership of the bike share system from BIXI to the City of Toronto, more particularly:

a.         City Council authorize the termination of the current Agreement between BIXI Toronto Inc. and the City and City Council authorize the transfer/assignment of the BIXI Toronto assets to the Toronto Parking Authority as designated by the City of Toronto, for the purpose of continuing the bike share program, substantially in accordance with the terms as set out in the report (November 11, 2013) from the General Manager, Transportation Services, and such other terms consistent with the report and  satisfactory to the General Manager, Transportation Services, in consultation with the President of the Toronto Parking Authority and the Deputy City Manager and Chief Financial Officer, in such form as may be satisfactory to the City Solicitor;

b.         City Council authorize the General Manager, Transportation Services, in consultation with the President of the Toronto Parking Authority and the Deputy City Manager and Chief Financial Officer, to negotiate and enter into an Asset Purchase Agreement and Operation Agreement ("the Agreements") with BIXI as contemplated in the report (November 11, 2013) from the General Manager, Transportation Services, on the terms as set out in the report, and such other terms consistent with the report and satisfactory to those officials, in such form as may be satisfactory to the City Solicitor;

c.         City Council authorize, subject to BIXI agreeing to the terms of the Agreements, that the City make a payment to JFG Logistics, a major creditor of BIXI, in the amount of $200,000, being 30% of the total amount owed to JFG by BIXI, provided that the Agreements shall otherwise provide that BIXI shall be solely responsible for payment of all the remaining current operating deficits and current liabilities to the date that the Agreements are signed (Asset Transfer Date");

d.         Subject to BIXI agreeing to the terms of the Agreements, City Council authorize the payment by the City on a monthly basis of all reasonable operating losses during the Interim Operating Period (from the Asset Transfer date to March 31, 2014); and

e.         City Council authorize the General Manager, Transportation Services, to execute the Asset Transfer Agreement and Operation Agreement on behalf of the City of Toronto.

2.         City Council vest the bike share assets in the Toronto Parking Authority and delegate to the Toronto Parking Authority the responsibility and authority for the ownership, acquisition, management, maintenance and operation of the bike share program on behalf of the City of Toronto, including in its sole discretion, entering contracts and agreements, undertaking sponsorship, naming, rebranding, partnership, acceptance of donations and all other related ownership, operational, management or revenue generating activities, such responsibility and authority to be exercised only by the Toronto Parking Authority once delegated, and that Municipal Code Chapter 179, Parking Authority, be amended as appropriate to enact this.

3.         City Council confirm that the delegation of authority to the Toronto Parking Authority under Part 2 above shall include the approval of sponsorship and third party advertising on the bike station panels, subject to such negotiations with Astral Media for advertising on the right-of-way as may be required, provided that all revenues generated shall be deposited in the Bike Share Program Reserve to be used for the purposes of the Reserve, and that this approval shall constitute a deemed variance as necessary and such advertising shall, as with the City’s previous street furniture agreements, not be subject to the requirement for any further approvals under the City’s sign by-laws.

4.         City Council acknowledge and concur that the Toronto Parking Authority intends to select a qualified private operator for the management and operation of the bike share program, including by sole source if appropriate based on market conditions and time restrictions, and negotiate and execute an operating/management agreement with the new operator of the bike share program on such terms and conditions, and in such form as may be satisfactory to the Toronto Parking Authority in its sole discretion.

5.         City Council authorize the appropriate City staff, in the event of any act of insolvency or bankruptcy or act of default by BIXI Toronto Inc. or PBSC, to take the appropriate action, in conjunction with outside legal counsel, to exercise and preserve the City's rights.

6.         With respect to the loan guaranteed by the City, City Council:

a.         authorize the Deputy City Manager and Chief Financial Officer to enter into any necessary agreement with the National Bank of Canada ("NBC"), as the holder of the City's guarantee and BIXI's outstanding capital debt (in the amount of $3,687,500 as of October 16, 2013), to obtain its consent to allow for the ownership of the System to be transferred, to the Toronto Parking Authority, and to continue the capital loan made by NBC and guaranteed by the City to the end of the term, with all other terms and conditions remaining the same; and

b.         subject to the completion of the transfer of the BIXI assets which the City or Toronto Parking Authority seek to have transferred, authorize the  Deputy City Manager and Chief Financial Officer to pay off the entire Capital Loan amount (outstanding balance $3,687,500 as of October 16, 2013).

7.         City Council authorize the establishment of a Bike Share Program Reserve for the purpose of providing a source of funding for the debt, transition costs, interim operating payments, capital expansion and replacement costs, and ongoing operating contributions to the Toronto Parking Authority for any system operating losses, as further described in Appendix 1 of the report (November 11, 2013) from the General Manager, Transportation Services and that the City of Toronto Municipal Code Chapter 227, Reserves and Reserve Funds, Schedule 1, Corporate Reserves, be amended to add this Reserve.

8.         City Council direct the Toronto Parking Authority to place any operating surplus from the Bike Share Program in the Bike Share Program Reserve for the replenishment of the Toronto bike share program capital assets and/or any future operating deficits, and Municipal Code Chapter 179, Parking Authority, be amended if necessary to give effect to this direction.

9.         City Council approve the proposed "cash-out" of 11 automated public toilets (APTs) currently required to be supplied by Astral Media under the City-Astral Media Street Furniture Contract, for a total amount of $5.0 million, plus the "cash-out" of two additional APTs in such amount as may be agreed, and that these funds be deposited into the Bike Share Program Reserve and drawn upon as necessary for the purpose of:

a.         making payments to NBC on the loan guaranteed by the City and/or paying off the entire outstanding loan balance, at the timing and discretion of the Deputy City Manager and Chief Financial Officer;

b.         making the Interim Operating Period payments to BIXI Toronto Inc.;

c.         paying transition costs incurred by the City and the Toronto Parking Authority in the course of transferring ownership of the bike share system; and

d.         making any necessary operating contributions to the Toronto Parking Authority for any System operating losses.

10.       City Council direct the General Manager, Transportation Services, to include for consideration in the 2015 and future Years Capital Budget for Transportation Services a provision in the Cycling Infrastructure Capital budget an amount of $70,000 annually to be transferred to the Bike Share Program Reserve for the replenishment of the Toronto bike share program capital assets, as required.

11.       City Council authorize the Chief Corporate Officer to make available space identified deemed appropriate by the Chief Corporate Officer, in or on City properties, available to the Toronto Parking Authority on a temporary basis solely for its use in supporting the bike share system and reducing the operating costs for the system, on a nominal net rent basis, subject to the following:

a.         the requirement for an appropriate lease or license agreement with the Toronto Parking Authority or its operator on terms and conditions acceptable to the Chief Corporate Officer to protect the interests of the City;

b.         the use would be subject to cancellation by the City, upon reasonable notice, where required for the City's future operational requirements or for any other reason;

c.         all capital and/or operating costs incurred by the City and/or the Toronto Parking Authority shall be the responsibility of the Toronto Parking Authority, including but not limited to any indirect or incidental costs – all such costs arising from the use of the space shall be included as operating costs of the bike share program;

d.         the Toronto Parking Authority shall not have the right to dispose of such property; and

e.         the use of the space shall not have a detrimental impact on City operations.

City Council also issued the following confidential instructions to staff which are now public:

12.       City Council direct that if the annualized average annual net cash flow deficit exceeds the projected $750,000 amount outlined in the report from the General Manager, Transportation Services, the President, Toronto Parking Authority be requested to report directly to Council as soon as possible for Council direction.

The balance of Confidential Attachment 1 to the supplementary report (November 11, 2013) from the General Manager, Transportation Services remains confidential in accordance with the provisions of the City of Toronto Act, 2006, as it contains information that pertains to the security of the property of the City and its local boards.

Confidential Attachment 1 to the report (October 15, 2013) from the General Manager, Transportation Services remains confidential in its entirety in accordance with the provisions of the City of Toronto Act, 2006, as it contains information that pertains to the security of the property of the City and its local boards.