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HomeMy WebLinkAbout2019-08-12 19-308 Order 08/12/201919-308 08/12/2019 19-308 Airport Order N/A Title, Order Authorizing the City Manager to Execute Agreements between Transportation Network Carriers (TNCs) and the City of Bangor for Providing Service to the Bangor International Airport. This Order authorizes the City Manager to enter into agreements with Transportation Network Carriers (TNCs) such as Uber for providing service to the Bangor International Airport. Earlier this year, the State of Maine passed legislation allowing commercial service airports to regulate TNCs. Three TNCs, Uber, Lyft, and Tryp, have requested permission to provide passenger transport service to and from the airport. Staff is working with the TNCs on agreements that would detail the terms by which these ground transportation providers provide service at the airport. If approved, the term for each agreement with a TNC would include the following: 1) A term of one year, similar to agreements with taxicab companies. 2) Tracking of the number of trips, and a $1 fee paid to the Airport for each trip. 3) Prohibitions on certain driver behaviors. 4) Insurance and indemnification requirements. The agreements shall be in final form as approved by City Legal. Airport Committee 08/05/2019 Recommend for passage Staff recommends approval. Consent 08/12/201919-308 CITY OF BANGOR ORDER 08/12/2019 19-308 Tremble Authorizing the City Manager to Execute Agreements between Transportation Network Carriers (TNCs) and the City of Bangor for Providing Service to the Bangor International Airport. WHEREAS, the City of Bangor, Maine is the owner of an airport located in Bangor, County of Penobscot, State of Maine, commonly known as Bangor International Airport (BGR); and WHEREAS, Transportation Network carriers (TNCs) have requested permission to provide passenger transport service to and from the airport; and WHEREAS, the State of Maine has passed legislation allowing commercial airports to regulate this classification of ground transportation provider. NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR, That Catherine M. Conlow, City Manager, is hereby authorized on behalf of the City of Bangor to execute agreements with Transportation Network Carriers such as Uber, Lyft, and Tryp to provide passenger transport service to and from the Bangor International Airport. Said agreements shall be for 1 year, and shall include provisions for tracking of the number of trips, a fee paid to the Airport for each trip, prohibitions on certain driver behaviors, and insurance and indemnification requirements. The agreements shall be in final form as approved by City Legal. 19-308 AUGUST 12, 2019 OPERATING AGREEMENT THIS OPERATING AGREEMENT (the "Agreement") is hereby made and entered into on , 2019, by and between TNC Operator, ("Operator'), and the City of Bangor ("Airport Authority"). Operator and Airport Authority are sometimes hereinafter referred to individual as a "Party" or collectively as the "Parties". WHEREAS, Airport Authority is the owner and operator of the Bangor International Airport (the "Airport") located in Bangor, Maine; WHEREAS, Operator desires to operate a transportation network business at the Airport wherein the network provided by Operator will be used to connect passengers to pre -arranged transportation services offered by Drivers (hereinafter defined); WHEREAS, Airport Authority has agreed to allow the Operator to conduct its business at the Airport, subject, however, to the terms and conditions of this Agreement; and WHEREAS, the following definitions shall apply to this Agreement at all times: (a) "App" shall mean the mobile smartphone application or platform developed by Operator that connects passengers with Drivers/Vehicles, as reviewed and approved by Airport Authority. (b) "Designated Areas" shall mean loading zones that are available to the general public to pick up and drop off passengers at the Airport. (c) "Driver" means any individual who has been approved by Operator to use a vehicle to transport passengers whose rides are arranged through the Operator's online -enabled application. For purposes of this Agreement, the term "Driver" applies at all times that Driver is on Airport property by reason of the driver's relationship with the Operator, regardless of whether the Vehicle is carrying a passenger. (d) "Vehicle" shall mean the vehicle used by a Driver. NOW, THEREFORE, in consideration of the promises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. OPERATIONS 1.1. Designated Areas. Airport Authority grants to Operator the right to allow Drivers affiliated with Operator to use, in common with others so authorized, the Designated Areas to provide the Permitted Use (hereinafter defined), subject to the terms and conditions hereinafter set forth. Operator shall also inform Drivers of the relevant rules and 1 19-308 AUGUST 12, 2019 guidelines. Upon request, Drivers shall allow Airport Authority personnel access to an electronic waybill (described in Section 3.4). Operator shall perform, or have a third party perform, criminal background checks on each Driver before said Driver begins offering services at the Airport. Nothing in this Agreement shall be construed as granting or creating any license or franchise rights pursuant to any federal, state or local laws, rules or regulations. Operator's rights to use the Designated Areas shall be on a non-exclusive basis at all times. All Drivers shall maintain personal insurance for their Vehicles in accordance with state financial responsibility requirements at all times. 1.2. Rights of Ingress and Egress. Drivers affiliated with Operator shall have the non- exclusive rights of ingress and egress across Airport property to conduct their permitted operations hereunder, provided that such ingress and egress activity: (a) shall not impede or interfere, in any way, with the operation of the Airport by Airport Authority or the use of the Airport by its tenants, passengers or employees; (b) shall be on roadways, and other areas designated by Airport Authority from time to time; and (c) may be temporarily suspended by Airport Authority in the event of an emergency or a threat to the Airport during the time period of such emergency or threat. 1.3. Changes to Airport. Operator acknowledges and agrees that: (a) Airport Authority shall have the right, at all times, to change, alter and expand the Airport, including the terminals, roadways and designated pick-up, drop-off and staging areas; and (b) Airport Authority has made no representations, warranties and/or covenants to Operator regarding the design, construction, passenger or automobile traffic, or views of the Airport. Without limiting the generality of the foregoing, Operator acknowledges and agrees that: the Airport may from time to time undergo renovation, construction and other Airport modifications; and the Airport Authority may from time to time adopt rules and regulations relating to security or other operational matters that may affect Operator's business. 1.4. "As -Is" Condition. Operator accepts the Designated Areas and the Airport in their present condition and "as -is", without representation or warranty of any kind, and subject to all applicable laws, ordinances, rules and regulations. 1.5. Requirements. During the term of this Agreement, Operator shall have a non- exclusive, revocable license solely to: (a) operate a transportation network business (subject to this Agreement and all applicable laws, rules, ordinances and regulations) at the Airport utilizing smart phone mobile application technology to connect passengers with pre -arranged transportation services for hire; (b) permit Drivers to access the Operator's App in order to transport such passengers and their personal baggage to and/or from the Airport in Vehicles inspected and approved by Operator or a certified mechanic; and (c) permit Drivers in providing rides matched through the Operator's App to use common -use Airport roadways for ingress and egress to and from the Airport's passenger terminal. Nothing herein shall be deemed to grant Operator any exclusive right or privilege. 1.6. Geo -Fence. Operator shall demonstrate to Airport Authority that Operator has 2 19-308 AUGUST 12, 2019 established a Geo -Fence (defined below) to manage its airport business and shall notify affiliated Drivers about the geo-fence. 2. TERM; COMMENCEMENT DATE; TERMINATION 2.1. Term. This Agreement shall be effective on the Commencement Date and shall be in effect until June 30, 2020. 2.2. Commencement Date. This Agreement shall hereafter be effective, and the "Commencement Date" shall be deemed to occur, on the date on which all of the following conditions precedent are satisfied, in Airport Authority's sole judgment: (a) Airport Authority shall have received certificates evidencing that Operator has obtained all insurance required by this Agreement; (b) Operator shall have implemented a virtual perimeter that encompasses the real-world geographic area shown in Exhibit A (the "Geo -Fence"). Operator will use the Geo -Fence and other tools, as appropriate, to manage its airport business and comply with the terms of this Agreement. (c) Each Driver will maintain information on his or her smartphone while using the App that will be used in lieu of a tangible Airport decal or transponder. This information must be presented to Airport Authority immediately upon request. This information will allow the Airport Authority to confirm the following information for any Driver or Vehicle using the App while on Airport grounds: (1) Driver identity and color photo; (2) Vehicle make, model; (3) License plate number; (4) Certificates of insurance; and (5) An electronic waybill that meets the criteria set forth in Section 3.4. 2.3. Termination. This Agreement will continue in force until terminated as provided in subsection 2.1 or as hereinafter provided: (a) Airport Authority shall have the right to terminate this Agreement upon the occurrence of an Event of Default (hereinafter defined) if Operator has not cured such Event of Default within thirty (30) days' after written notice thereof from Airport Authority; or (b) Either party may terminate this Agreement, at any time, for any reason, if the requesting Party gives not less than thirty (30) days' prior written notice thereof to the other Party, and the other Party consents in writing to the termination within thirty (30) days of 3 19-308 AUGUST 12, 2019 receiving the request 3. USE 3.1. Permitted Use. Operator and Drivers may use the Designated Areas only for the uses specified in this Agreement (collectively, "Permitted Use") and for no other purpose, and shall not conduct any activity or operations at the Airport not expressly authorized by this Agreement. 3.2. No Exclusivity. Operator acknowledges and agrees that it has no exclusive rights to conduct the business described herein, and that Airport Authority has the right, at all times, to arrange with others for similar activities at the Airport. 3.3. Transportation Requirements. In conducting its operations consisting solely of the Permitted Use, without limiting the generality of other provisions of this Agreement, Operator shall inform Drivers of the terms of this Agreement and the following transportation requirements, as amended from time to time by Airport Authority: (a) Each Driver shall maintain, within such driver's vehicle at all times while upon Airport grounds, a digital decal as described in Section 2.2(c); (b) Each Driver shall be allowed to pick-up passengers at the Airport at the Designated Area, and will be allowed to drop-off passengers at any reasonably safe location within the geographic area shown in Exhibit A; (c) Each Driver must be able to produce, upon the request of any police officer or other Airport Authority representative, an electronic waybill meeting the requirements of Section 3.4; (d) Once a Driver has made contact with the passenger(s) with whom such driver was matched, the Driver shall promptly load such passenger(s); and (e) Each Driver shall limit such driver's curbside time to the time required for the prompt loading and unloading of passengers, and after loading passengers, such Driver shall thereafter promptly depart from the Airport. 3.4. Waybills. In lieu of a physical waybill and as an explicit requirement of Airport Authority under this Agreement, every passenger pick-up shall be documented electronically immediately after the completion of the ride to which it relates. Drivers shall, upon request, present a waybill to any Airport Authority official for inspection. 3.5. No Advertising or Promotions. No Vehicle shall post or display, on the exterior thereof, any signage or other displays except for Operator's name and/or logo (or the signage of other transportation network companies). 3.6. General Prohibited Activities. Without limiting any other provision herein, Operator 11 19-308 AUGUST 12, 2019 shall not, without the Airport Authority's prior written consent: (a) cause or permit anything to be done, in or about the Designated Areas or the Airport, or bring or keep anything thereon, which would be reasonably likely to (i) increase, in any way, the rate of fire insurance on the Airport, (ii) create a nuisance, or (iii) obstruct or interfere with the rights of others on the Airport or injure or annoy them; (b) commit, or suffer to be committed, any waste upon the Designated Areas or the Airport; (c) use, or allow the Designated Areas to be used, for any improper, immoral, unlawful or reasonably objectionable purpose; (d) place any loads upon the floor, walls or ceiling which endanger the structure or obstruct the sidewalk, passageways, stairways or escalators, in front of, within or adjacent to the Designated Areas or the roadways; or (e) do, or permit to be done, anything, in any way, which would be reasonably likely to materially injure the reputation or image of the Airport Authority or appearance of the Airport. 3.7. Other Prohibited Activities. Without limiting the generality of other provisions of this Agreement, Operator will convey to Drivers that the following activities are prohibited by Drivers: (a) Turning off or disabling the App when a Vehicle is on Airport property, unless the Driver is departing the Airport after a drop-off, or acting as a customer for personal reasons and not representing the Operator; (b) Allowing operation of a Vehicle on Airport roadways by an unauthorized driver; (c) Transporting a passenger in an unauthorized vehicle; (d) Picking -up passengers, or their baggage, at any location other than the Designated Areas while operating at the Domestic Terminal; (e) Failing to provide information, or providing false information, to police officers or Airport personnel; (f) Displaying, to an Airport official, a waybill in an altered or fictitious form; (g) Soliciting passengers on Airport property; (h) Using or possessing any alcoholic beverage while on duty; (i) Failing to operate a vehicle in a safe manner; (j) Failing to comply with posted speed limits and traffic control signs; (k) Using profane or vulgar language; (1) Attempting to solicit payment in excess of that authorized by law; (m) Soliciting for or on behalf of any hotel, club, nightclub, or other business; S 19-308 AUGUST 12, 2019 (n) Soliciting of any activity prohibited by the applicable laws, rules or regulations; (o) Operating a vehicle which is not in a safe mechanical condition or which lacks mandatory safety equipment; (p) Disconnecting any pollution control equipment; (q) Using or possessing any illegal drug or narcotic while on Airport property; (r) Operating a vehicle without proper certification or at any time during which Operator's authority is suspended or revoked; and (s) Engaging in any criminal activity. 3.8. Representative of Operator. Operator shall provide the Airport Authority with name, address, telephone and email address for at least one qualified representative authorized to represent and act for Operator in matters pertaining to its operation, and shall keep Airport Authority informed, in writing, of the identity of each such person. 4. FEES; REPORTING; AND RECORDKEEPING 4.1. Defined Terms. As used in this Agreement, the following capitalized terms shall have the following meanings: (a) "Trip" means each instance in which a Driver affiliated with an Operator enters Airport property and makes one or more stops to pick up one or more passengers on Airport property. (b) "Per Trip Fee" means a fee of $1 for each Trip. (c) "Monthly Fee" means the product of the following: (i) the number of Trips conducted by the Operator's Vehicles in one calendar month, and (ii) the Per Trip Fee then in effect. 4.2. Payment Requirements and Reports. (a) Within thirty (30) days after the close of any calendar month, Operator shall submit its operations report to Airport Authority for the previous calendar month (the "Monthly Report"). The Monthly Report shall be in an agreed-upon electronic format (as specified by Airport Authority), and shall contain the total number of Trips for the reporting period. All such information shall be accurate at all times. (b) Operator agrees to pay a Monthly Fee to the Airport Authority, which shall constitute a total of the Per Trip Fees assessed for each pick-up in the relevant month. The Monthly Fee is due, in full, and received by the Airport Authority, within thirty (30) days after the close of any calendar month. All payments hereunder, including Monthly Fees, shall be paid at the office of the Airport Authority, or at such other place or manner as Airport 19-308 AUGUST 12, 2019 Authority may designate in writing (c) All payments hereunder, including Monthly Fees, shall be paid in lawful money of the United States of America, free from all claims, demands, setoffs, or counterclaims of any kind. Any payments hereunder, including Monthly Fees, not paid when due shall be subject to a service charge of one and one-half percent (1.5%) per month, or if lower, the maximum amount allowed by law. 4.3. Books and Records. (a) Operator agrees to maintain and make available (in physical or electronic form) to Airport Authority at Operator's place of business or a mutually agreed upon third party location, during regular business hours, accurate and detailed books and accounting records reflecting its performance of its obligations under Sections 4.1-4.2 of this Agreement. Operator shall maintain such books and records in accordance with generally accepted accounting principles ("GAAP"), unless otherwise agreed to by the Airport Authority. Upon Airport Authority's reasonable prior written request, which shall not occur more than once per calendar year, Operator shall permit the Airport Authority to audit and examine such books and records relating to its performance of its obligations under Sections 4.1-4.2 of this Agreement at Operator's place of business or a mutually agreed upon third party location. Operator shall maintain such data and records in an accessible location and condition for a period of not less than five (5) years from the expiration of this Agreement or the last date of operations at the Airport, whichever is later. (b) Should any examination, inspection and audit of Operator's books and records by the Airport Authority disclose an underpayment by Operator of the consideration due, Operator shall promptly pay Airport Authority the amount of such underpayment. If said underpayment exceeds five percent (5%) of the consideration due, Operator shall reimburse the Airport Authority for all reasonable costs incurred in the conduct of such examination, inspection and audit. 5. ASSIGNMENT 5.1. No Assignment. Operator shall not assign, encumber or otherwise transfer, whether voluntarily or involuntarily or by operation of law, this Agreement, or any right hereunder, without Airport Authority's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (the term "Transfer' shall mean any such assignment, encumbrance, or transfer). Airport Authority's consent to one Transfer shall not be deemed a consent to any subsequent Transfers. Any Transfer made without Airport Authority's consent shall constitute a default hereunder and shall be voidable at Airport Authority's election. Notwithstanding the above, Operator shall retain the right to transfer this Agreement, or any right hereunder, to an affiliate of Operator. 5.2. Change of Control. The sale or other transfer of a controlling percentage of the capital stock or membership interests of Operator, whether by merger, stock sale or otherwise, or the sale or transfer of more than fifty percent (50%) of the value of the assets 7 19-308 AUGUST 12, 2019 of Operator related to the operations hereunder, shall be deemed a Change of Control, not a Transfer, and shall not be subject to the restrictions in Section 5.1. The phrase "controlling percentage" means the ownership of, and the right to vote, stock or interests possessing more than fifty percent (50%) of the total combined voting power of all classes of Operator's capital stock or interests issued, outstanding and entitled to vote for the election of directors. 6. COMPLIANCE WITH LAWS At all times, Operator shall cause its use of the Airport and its operations under this Agreement to comply with all applicable laws, ordinances, orders, directives, rules, codes, regulations and decrees of federal, state and local governmental entities and agencies, and their respective departments, agencies, authorities and boards (individually, a "Governmental Entity", or collectively, "Governmental Entities"), and all grant assurances provided by Airport Authority to any federal or state Governmental Entity in connection with the Airport Authority's ownership or operation of the Airport, and all other applicable rules, regulations, policies, and procedures of Airport Authority, as the same may be amended, modified or updated from time to time, including, but not limited to, those relating to health and safety, especially those pertaining to public safety such as safe driving practices, seat belts, and child seats/restraints. For purposes of this Agreement, the term "Governmental Entity" shall also mean and include, without limitation, Airport Authority, State of Maine, U.S. Department of Transportation, Federal Aviation Administration, and Transportation Security Administration. 7. WAIVER; INSURANCE 7.1. Waiver. Operator covenants and agrees that Airport Authority shall not, at any time or to any extent whatsoever, be liable, responsible, or in any way accountable for any losses, liabilities, judgments, suits, claims, damages, costs and expenses, of any kind or nature (collectively, "Losses"), which (a) at any time after the effective date of this Agreement may be suffered or sustained by Operator or any Driver arising out of Operator's operations, or (b) are caused, in whole or in part, by any act or omission (whether negligent, non -negligent or otherwise) of Operator or any Driver. This waiver shall not extend to such Losses to the extent caused in whole or in part by any act, omission or negligence of Airport Authority or its employees, officers, directors, contractors or agents, including Losses caused by the sole gross negligence or willful misconduct of Airport Authority. 7.2. Insurance. Operator shall procure and maintain, at its sole cost and expense and at all times during the term of this Agreement, insurance of the kind and in the amount hereinafter provided, by financially responsible and qualified companies eligible to do business in the State of Maine, or Maine Bureau of Insurance approved eligible surplus lines insurer, covering all operations under this Agreement (including those of Drivers). Prior to the Commencement Date, Operator shall provide a certificate of insurance to Airport Authority showing that Operator has complied with the obligations of this Section. The certificate of insurance required of this Section shall provide an obligation 8 19-308 AUGUST 12, 2019 that the insurer provide the certificate holder (Airport Authority) with at least thirty (30) days prior written notice of cancellation. The following insurance coverages are required to be provided by Operator under this Agreement: (a) Commercial Automobile Liability Insurance with limits of not less than One Million Dollars ($1,000,000) for each accident for third party bodily injury and property damage. This coverage applies to Vehicles operated by Drivers while: i. The Driver is located on the airport premises during the course of providing an accepted trip including the picking -up and dropping -off of passenger(s); ii. The Driver is located on the airport premises immediately following the conclusion of a requested trip and while in the course of exiting the airport premises, or is located on the airport premises immediately preceding picking up passenger(s) and while in the course of entering the airport premises; and iii. The Driver has logged into the App controlled by the Operator and is "available to receive requests" for transportation services from passengers using the App and the Driver is located on the airport premises. "Available to receive requests" means the App is in a state such that an applicable request would be transmitted to the Driver's smartphone for acceptance by the Driver. This policy shall not apply to rides originating in New York City where Drivers are professionally licensed and carry insurance in amounts mandated by the Taxi and Limousine Commission ("TLC"). (b) Commercial General Liability Insurance of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, insuring the Operator from liability from bodily injury (including wrongful death), personal injury, and damage to property resulting from the performance of this Agreement by Operator. All Vehicles must be included under Operator's Commercial Automobile Liability Policy or covered by a blanket coverage form or endorsement; and all employees of Operator must be covered under Operator's General Liability policy. The limits of the foregoing insurance shall not, in any way, limit the liability of Operator under the terms of this Agreement. In addition, the foregoing insurance policies are primary insurance to any other insurance held by Airport Authority with respect to obligations assumed by Operator under this Agreement. 7.3. Notice. Each Party hereto shall give to the other Party prompt and timely written notice of any loss arising out of this Agreement, meaning any and all losses, liabilities, judgments, suits, claims, damages, costs and expenses (including reasonable attorney's fees, investigation costs, remediation costs, and court costs), of any kind or nature, coming to its knowledge which in any way, directly or indirectly, contingently or otherwise, affects or might affect either, and each shall have the right to participate in the defense of the same to the extent of its own interest. 0 19-308 AUGUST 12, 2019 7.4 Confidentiality of Records. Any information that Operator makes available to Airport Authority pursuant to this Agreement is deemed to be confidential and proprietary information ("Operator's confidential information"), regardless of whether the records are marked as such, and shall not be disclosed to anyone without Operator's express written permission unless required to be disclosed by applicable law or a court order; including without limitation the public records laws, provided that Airport Authority notifies Operator of such requirement promptly prior to disclosure, and provided further that Airport Authority makes diligent efforts to limit disclosure pursuant to any available bases set forth in the Maine Freedom of Access Act or other applicable law. If the Airport Authority determines that it must disclose such information, then the Airport Authority will provide Operator ten (10) business days prior to the proposed disclosure such that Operator may seek court intervention concerning the potential disclosure of Operator's confidential information. If Airport Authority is required to release Operator's confidential information, it nevertheless shall use any available authorities to redact personal or business confidential information from such records to the extent consistent with applicable law and the final judgment. 8. DEFAULT; REMEDIES 8.1. Event of Default. The occurrence of any one or more of the following events shall constitute a breach of this Agreement and an "Event of Default": (a) Operator shall fail to pay Monthly Fees duly and punctually (or to submit any Monthly Report), or to make any other payment required hereunder, when due to Airport Authority, and such failure shall continue beyond the date specified in a written notice of such breach or default from Airport Authority, which date shall be no earlier than the tenth (10th) business day after the effective date of such notice; (b) A Transfer occurs without the prior approval of the Airport Authority as set forth in section 5.1; (c) Operator fails to obtain and maintain the insurance required hereunder, or to provide copies of the insurance certificates to the Airport Authority as required herein; or (d) Operator fails to keep, perform and observe each and every other promise, covenant and agreement set forth in this Agreement, and such failure continues for a period of more than thirty (30) days after delivery by Airport Authority of a written notice thereof. 8.2. Remedies. Upon the occurrence and during the continuance of an Event of Default, Airport Authority shall have the following rights and remedies in addition to any and all other rights and remedies available to the Airport Authority under this Agreement, at law, or in equity: (a) Airport Authority may elect to terminate this Agreement; and (b) nothing herein shall be deemed to limit Airport Authority's right to terminate this Agreement as provided in Section 2. 8.3. Cumulative Rights. The exercise by Airport Authority of any remedy provided in this 10 19-308 AUGUST 12, 2019 Agreement shall be cumulative and shall in no way affect any other remedy available to Airport Authority under law or in equity. 8.4. Fines/Penalties. By operating on the Airport, Operator and Drivers affiliated with Operator shall be subject to applicable laws, ordinances, rules and regulations including any fines or penalties in connection therewith. Airport Authority shall have no obligation to Operator to impose fines on, or otherwise take action against, any other person or entity at the Airport. 9. GOVERNMENTAL PROVISIONS 9.1. No Representations. Operator acknowledges and agrees that neither Airport Authority, nor any person on behalf of Airport Authority, has made, and Airport Authority hereby disclaims, any representations or warranties, express or implied, regarding the business venture proposed by Operator at the Airport, including any statements relating to the potential success or profitability of such venture. Operator represents and warrants that it has made an independent investigation of all aspects of the business venture contemplated by this Agreement. 9.2. Limitation on Damages. Notwithstanding anything in this Agreement to the contrary, in no event will either party be liable to the other party for any consequential, incidental or special damages, or lost revenues or lost profits. 9.3. Federal Nondiscrimination. Operator understands and acknowledges that Airport Authority has given to the United States of America, acting by and through the Federal Aviation Administration, certain assurances with respect to nondiscrimination, which have been required by Title VI of the Civil Rights Act of 1964, as effectuated by Title 49 of the Code of Federal Regulations, Subtitle A - Office of the Secretary of Transportation, Part 21, as amended, as a condition precedent to the government making grants in aid to Airport Authority for certain Airport programs and activities, and that Airport Authority is required under said Regulations to include in every agreement or concession pursuant to which any person or persons other than Airport Authority, operates or has the right to operate any facility on the Airport providing services to the public, the following covenant, to which Operator agrees, as follows: "Operator, in its operation at and use of [Airport], covenants that (1) no person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; (2) that in the construction of any improvements on, over or under such land and the furnishing of services thereon, no person on the grounds of race, color or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, and (3) that the grantee, licensee, permittee, etc., shall comply with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Subtitle A, Office of the Secretary of Transportation, Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation Effectuations of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended." 11 19-308 AUGUST 12, 2019 10. GENERAL PROVISIONS 10.1. Notices. Except as otherwise specifically provided in this Agreement, any notice, demand or other correspondence given under this Agreement shall be in writing and given by prepaid certified mail (return receipt requested), or reputable overnight courier (such as Federal Express), to: (a) Operator at its Notice Address; or (b) Airport Authority at its Notice Address; or (c) such other address as either Operator or Airport Authority may designate as its new address for such purpose by notice given to the other in accordance with this Section 11. Any notice hereunder shall be deemed to have been given and received, and effective, two (2) days after the date when it is mailed. For convenience of the Parties, copies of notices may also be given by facsimile or electronic mail; however, neither Party may give official or binding notice by facsimile or electronic mail. Operator's Notice Address: TNC Operator w/ Copy to Legal Department w/ electronic copy to @ Airport Authority's Notice Address: Airport Director Bangor International Airport 287 Godfrey Boulevard Bangor, ME 04401 w/ electronic copy to tcaruso@flybangor.com 10.2. Waiver of Performance. The waiver by either Party of performance of any provisions of this Agreement shall not constitute a future waiver of performance of such provisions. 10.3. Entire Agreement. The Parties intend that this Agreement shall be the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous written or oral agreements or understandings. The Parties further intend that this Agreement shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever (including prior drafts hereof and changes therefrom) may be introduced in any judicial, administrative or other legal proceeding involving this Agreement. 10.4. Amendments. Except as specifically provided herein, amendments to this Agreement require written agreement of the Parties. Notwithstanding the foregoing, if a Governmental Entity requires modifications or changes to this Agreement as a condition precedent to the granting of funds for the improvement of the Airport, Operator shall agree to make such amendments, modifications, revisions, supplements or deletions of any of the terms, conditions or requirements of this Agreement as may be reasonably required. 10.5. Interpretation. The headings and captions of this Agreement have been inserted 12 19-308 AUGUST 12, 2019 for convenience of reference only, and such captions or headings shall in no way define or limit the scope or intent of any provision of this Agreement. This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with herein, and shall be interpreted to achieve the intents and purposes of the Parties, without any presumption against the Party responsible for drafting any part of this Agreement. 10.6. Successors and Assigns. Subject to the provisions of Section 5, the terms and conditions contained in this Agreement shall bind and inure to the benefit of Operator and Airport Authority, and, except as otherwise provided herein, to their personal representatives and successors and assigns. 10.7. Severability. If any provision of this Agreement or the application thereof to any person, entity or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each other provision of this Agreement shall be valid and be enforceable to the full extent permitted by law. 10.8. Governing Law. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Maine. Any dispute arising out of this Agreement, including, but not limited to, any issues relating to the existence, validity, formation, interpretation or breach of this Agreement, shall be brought and litigated exclusively in a state or federal court located in Maine; and the Parties consent to the exclusive jurisdiction thereof. 10.9. Authority. Operator represents and warrants that Operator is a duly authorized and existing entity, that Operator has and is duly qualified to do business in Maine, that Operator has full right and authority to enter into this Agreement, and that each and all of the persons signing on behalf of Operator are authorized to do so. Upon Airport Authority's request, Operator shall provide Airport Authority with evidence reasonably satisfactory to Airport Authority confirming the foregoing representations and warranties. 10.10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have caused their respective duly authorized representatives to execute this Agreement on 12019. CITY OF BANGOR TNC OPERATOR 0 0 Printed: Catherine M. 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