HomeMy WebLinkAboutAUGUSTA REGIONAL AIRPORT TRANSPORTATION SECURITY CLEARINGHOUSE SERVICES AGREEMENT CONFIDENTIAL
TRANSPORTATION SECURITY CLEARINGHOUSE SERVICES
AGREEMENT
THIS TRANSPORTATION SECURITY CLEARINGHOUSE SERVICES
AGREEMENT ("Agreement") is made and entered into as of Maj �, 2018 (the
"Effective Date") by and between (i)the Airport Research and Devel pment
Foundation's Transportation Security Clearinghouse ("Clearinghouse"), and
(ii) Augusta Georgia on behalf of the Augusta Aviation Commission
a entity organized under the laws of the State of Georgia
("Airport"), who, intending to be legally bound, hereby agree as follows:
Recitals:
WHEREAS, Airport desires to obtain the Clearinghouse's services for a management
system to track and monitor application-based commercial ground transportation
transacting business to, on, or from Airport property;
WHEREAS,the Clearinghouse desires to provide such services to Airport; and
WHEREAS, Airport and Clearinghouse desire to set forth the terms and conditions
pursuant to which the Clearinghouse shall provide to Airport, and Airport shall acquire
from Clearinghouse, such services.
NOW THEREFORE, in consideration of the foregoing, of the mutual covenants set forth
in this Agreement, and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties do mutually agree as follows:
1. DEFINITIONS
Application-Based Commercial Ground Transportation (ABCT):
Transportation to, on, or from an airport for compensation using an online-enabled
application ("app") or technology-based platform to connect passengers with drivers.
Application-Based Commercial Ground Transportation Provider ("ABCT-
Provider"): A business entity that provides ABCT services to, on, or from one or more
airports. The parties acknowledge and agree that ABCT Provider is a generic term and
includes but may not be limited to what some states refer to as Transportation Network
Companies (TNCs) and for what other government entities or regulatory bodies may
identify in other ways.
Application-Based Commercial Ground Transportation Operating Permit
("ABCT Permit"): Each permit or other form of arrangement entered into between an
airport and an ABCT Provider which authorizes such Provider to provide ground
transportation services to, on, or from an airport, as any such instrument may be amended
from time to time.
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2. CLEARINGHOUSE SERVICES
The Airport desires that the Clearinghouse provide services to Airport which includes
a management system to track and monitor application-based commercial ground
transportation transacting business to, on, or from Airport property to the Airport,
described further below.
The following is a description of services (referred to as "Services"under the Agreement)
necessary to maintain and support the Airport's ABCT Permits, The Clearinghouse shall
perform the Services with respect to each ABCT Provider as designated in writing by the
Airport to the Clearinghouse during the term of this Agreement (collectively, the
"Designated ABCT Providers").
A. Data Collection and Storage. For each"ABCT Driver,"the Clearinghouse
shall obtain the"Required Data"upon each of the"Triggering Events."
1. ABCT Driver. An individual who has been approved by a
Designated ABCT Provider to transport passengers using a Designated ABCT
Provider's online-enabled application where such driver is within the Airport
Geo-Fence by reason of the driver's relationship with a Designated ABCT
Provider, regardless of whether the driver is carrying a passenger. The term
"Geo-Fence"is a polygon whose points are geographic coordinates on Airport
property designated by the Airport (as may be amended by the Airport from time
to time) pursuant to the Airport's ABCT Permits with Designated ABCT
Providers.
2. Required Data:
a. transaction type (i.e., entry, exit, drop-off,pick-up);
b. ABCT Provider identification;
c. date;
d. time;
e, geographical location;
f. unique driver identifier;
g. vehicle license plate number; and
h. number of active rides in the vehicle following the
triggering event(based on a value of"0" (no active rides) or"1" (active
ride)).
3. Triggering Events:
a, upon entry into the Geo-Fence;
b. upon completion of a passenger drop-off within the Geo-
Fence;
c. upon pick-up of a passenger within the Geo-Fence; and
d. upon exit of the Geo-Fence.
B. ABCT Permit Fees Collection; Payment.
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1. ABCT Permit Fees Collection. The Clearinghouse shall establish
procedures for billing and collection with each Designated ABCT Provider
consistent with the Airport's ABCT Permits. Within thirty(30) days of the close
of each calendar month, the Clearinghouse shall invoice each Designated ABCT
Provider for the fees owed under the Airport's ABCT Permits for the previous
calendar month ("ABCT Permit Fees"), which ABCT Permit Fees shall be
consistent with the Required Data received by the Clearinghouse for such month.
2. ABCT Permit Fees Payment. Within thirty (30) days of the
invoicing deadline outlined above, the Clearinghouse shall pay to the Airport the
ABCT Permit Fees collected and received by the Clearinghouse from all
Designated ABCT Providers for the calendar month invoiced, minus the
Clearinghouse Fees outlined in section 3.1, which amounts shall be consistent
with each Designated ABCT Provider's payment obligations under its respective
ABCT Permit with the Airport and the Required Data received by the
Clearinghouse.
3. PAYMENT
3.1 Fee Payment. In full payment for the Services provided,the Clearinghouse
will retain r;ve percent (s %) of the moneys collected and received by the
Clearinghouse from the ABCT Providers to be paid to the Airport. The Clearinghouse
Services fee will be retained on a monthly basis, within thirty (30) days after the
invoicing deadline outlined in Section 2.B.1.
4. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall be effective from the date of signature
and unless earlier terminated pursuant to Section 4.2 or 4.3, it shall continue for an initial
term of twenty-four (24) months. This Agreement shall comply with
O . C . G . A . § 36 - 60 - 13 , as amended, regarding multi-year
agreements and shall terminate absolutely and without
further obligation on the part of the county at the close
of the calendar or fiscal year in which it was executed
and at the close of each succeeding calendar or fiscal
year for which it may be renewed as provided in this
Code section , After the initial term, the Agreement shall automatically renew
for additional twelve (12) month periods unless otherwise determined by mutual
agreement of the parties,but shall not exceed five (5)years.
4.2 Termination.
4.2.1 Termination for Default. This Agreement may be terminated by either
party in the event that the other party has not performed any material obligation
or has otherwise breached any material term of this Agreement upon the expiration of
thirty (30) days (or any longer cure period authorized by the non-breaching party with
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respect to any individual breach) after receipt of written notice thereof if the breach or
nonperformance has not then been cured.
4.2,2 Termination by Airport. This Contract shall be subject to termination by the
Airport if at any time in the opinion of the Airport the Clearinghouse fails to carry out the
Contract provisions of any one or more of the following events:
a. The default by the Clearinghouse in the performance of any of the terms,
covenants or conditions of the Contract,and/or the failure of the Clearinghouse to remedy,
or undertake to remedy with sufficient forces and to the Airport's reasonable satisfaction.
The Airport shall provide the Clearinghouse with notice of any conditions which violate
or endanger the performance of the Contract. If after such notice the Clearinghouse fails
to remedy such conditions within twenty (20) days to the satisfaction of the Airport, the
Airport may exercise its option in writing to terminate the Contract without further notice
to the Clearinghouse and order the Clearinghouse to stop providing services immediately.
b. The Clearinghouse files a voluntary petition in bankruptcy, including a
reorganization plan, makes a general or other assignment for the benefit of
creditors, is adjudicated as bankrupt or if a receiver is appointed for the benefit
of creditors, is adjudicated as bankrupt or if a receiver is appointed for the •
property or affairs of the Clearinghouse and such receivership is not vacated
within thirty(30) days after the appointment of such receiver.
•
c. the Clearinghouse's failure to provide services according to the specifications
contained herein.
d. the Clearinghouse's failure to keep, perform, or observe any other term or
condition of this Contract.
e. the Clearinghouse's performance of the Contract is unreasonably delayed.
f. The Airport reserves the right to terminate this Contract if the services provided
under this Contract do not meet or exceed existing industry standards. The
Airport reserves the right to make the final determination as to the quality of •
services.
4.2.3 Termination for Convenience
The Airport may terminate this contract in whole or in part at any time by
providing thirty(30) day written notice to the Clearinghouse. Such action may be without
cause and without prejudice to any other right or remedy of Airport.
4.3 Action upon Termination. Upon expiration or earlier termination of the
Agreement, the Clearinghouse shall provide to Airport a final accounting, including but
not limited to, all uninvoiced amounts.
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5. REPRESENTATIONS AND WARRANTIES
5.1 By the Clearinghouse. The Clearinghouse hereby represents and warrants to
Airport as follows:
a. Authorization and Binding Obligation. The Clearinghouse has full
corporate power and authority to enter into, deliver and perform fully its obligations
under this Agreement. This Agreement has been fully executed and delivered by the
Clearinghouse, and constitutes the legal, valid and binding obligation of the
Clearinghouse,enforceable against it in accordance with its terms.
b. No Conflict. The execution, delivery and performance by the
Clearinghouse of its obligations under this Agreement do not knowingly conflict with,
result in a breach of or require any consent under the charter or bylaws of the
Clearinghouse or any applicable law or regulation, any order, writ, injunction or decree of
any court or governmental authority or agency, or any agreement or instrument to which
the Clearinghouse is a party or by which it is bound or to which it subject, or constitute a
default under such agreement or instrument.
5.2 By Airport. Airport hereby represents and warrants to the Clearinghouse as
follows:
a. Authorization and Binding Obligation. Airport has full corporate
power and authority to enter into, deliver and perform fully its obligations under this
Agreement. This Agreement has been duly executed and delivered by Airport and
constitutes the legal, valid and binding obligation thereof, enforceable against Airport in
accordance with its terms.
b. No Conflict. The execution, delivery and performance by Airport
of its obligations under this Agreement do not conflict with, result in a breach of or
require any consent under, the charter or bylaws of Airport or any applicable law or
regulation, or any order, writ, injunction or decree of any court or governmental authority
or agency, or any agreement or instrument to which Airport is a party, or by which it is
bound or to which it is subject, or constitute a default under any such agreement or
instrument.
6. CONFIDENTIALITY
6.1 Confidentiality. The Parties acknowledge that all records relating to this
Agreement may be a public record subject to Georgia's Open Records Act
(O.C.G.A. § 50-•18-70 et seq.). The parties shall cooperate fully in responding
to such request and making all records, not exempt, available for inspection
and copying as provided by law. Each party shall immediately notify the other
of any request made under the Open Records Act, and shall furnish a copy of
the request and the response to such request. Each party shall maintain in strict
confidence, and agrees not to disclose to any third party, except as necessary for the
performance of this Agreement when authorized by the other party in writing,
Confidential Information that one party receives ("Recipient") from disclosing party
("Discloser"). "Confidential Information" means all non-public information of a
competitively sensitive nature concerning the disclosing party, including, but not limited
to: (a) software, data, and information regarding services, systems or products; (b)
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processes, procedures, operations, engineering or technology; (c) present product
lines, including without limitation, their design, manufacture, marketing, quality control,
costs, configurations and uses for such products, as well as the aforementioned
information related to products which are the subject of either party's research and
development; (d) customer lists, customer information, business plans or data, sales
volumes, profitability figures, financial information or other economic or business
information; or (e) any efforts undertaken by either party on behalf of their members or
customers.
6.2 Exceptions. Confidential Information does not include: information that is or
subsequently may come within the knowledge of the public generally through no fault of
Recipient; information that Recipient can show was previously known to it as a matter of
record at the time of receipt; information that Recipient may subsequently obtain lawfully
from a third party who has lawfully obtained the information free of any confidentiality
obligations; or information that Recipient may subsequently develop as a matter of
record, independently of disclosure by Discloser.
6.3 Duration. With respect to Confidential Information not constituting a trade
secret, this Agreement shall remain in full force and effect for a period of three (3) years;
with respect to Confidential Information constituting a trade secret, this Agreement shall
remain in full force and effect for so long as the Confidential Information constitutes a
trade secret.
6.4 Injunctive Relief Recipient acknowledges that disclosure of any Confidential
Information by it or its employees will give rise to irreparable injury to Discloser or the
owner of such information, not adequately compensated by damages. Accordingly,
Discloser or such other party may seek and obtain injunctive relief against the breach or
threatened breach of this Section, in addition to any other legal remedies, which may be
available, without the requirement of posting bond.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 The Clearinghouse and Airport acknowledge that both parties and/or third
parties retain all right, title and interest under applicable contractual, copyright,
intellectual property, and related laws to their previously owned, developed or obtained
intellectual property and any enhancements and modifications to same and in the
databases and information contained therein used to provide either party's products or
services hereunder, and the parties shall use such materials consistent with such right, •
title and interest and notify the applicable party of any threatened or actual infringement
thereof.
7.2 The Clearinghouse retains all its previously owned, developed or obtained
intellectual property. The Airport shall use the Clearinghouse's intellectual property with
such rights as necessary to perform the functions of the Clearinghouse's Automated
Integration Services, and notify the Clearinghouse of any threatened or actual
infringement thereof.
7.3 In the event that development work is undertaken under this contract by the •
Clearinghouse, which specifically excludes all previously owned, developed or obtained
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intellectual property, then any such developed items shall be owned by the
Clearinghouse,
7.4 Airport shall not, except as required by applicable law (and then only to that
extent):
• Reverse engineer,translate, disassemble, decompile the whole or any part of the
Clearinghouse's service offering, solution or proprietary assets or otherwise
attempt to access same;
• Assign, transfer, sell,license, sub-license, Iease,rent, charge or otherwise deal in
or encumber the proprietary material of the Clearinghouse or use the proprietary
material of the Clearinghouse on behalf of or for the benefit of any third party,
or make available the same in any way whatsoever to any third party without the
Clearinghouse's prior written consent in a fashion contrary to the terms of this
Agreement;
• Distribute, create derivative works of or modify proprietary material of the
Clearinghouse in anyway,nor create or develop a competitive or similar
offering to that of the Clearinghouse,nor use, copy, duplicate or display the
proprietary material of Clearinghouse on a commercial or development basis
except as expressly provided under an agreement.
8. DATA PROTECTION
The Clearinghouse is dedicated to protecting the Airport provided data and providing the
Airport with the highest level of service,
Airport provided data, which includes personal information sent to the Clearinghouse, is
not disclosed, made available or otherwise used for any purposes other than to perform
the Services. Such information can be used for other purposes only with the data
provider's express permission or as required to comply with applicable laws.
The Clearinghouse does not disclose the Airport provided information to companies
outside the Clearinghouse and the Clearinghouse agents and subcontractors, except as
required by law. The confidentiality of Airport information is an important part of the
Clearinghouse's operations and a standard business practice.
9. LIMITATION OF LIABILITY
Neither party shall be responsible for special, indirect or consequential damages. Nor
shall either party be responsible for lost profits regardless of whether advised of such
possibility.
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10. MISCELLANEOUS
10.1 Relationship. This Agreement does not create any partnership, joint
venture, franchisor-franchisee or employer-employee relationship between the parties
hereto. Neither party hereto is granted any express or implied right or authority to bind
the other party hereto in any manner whatsoever.
10.2 No Third Party Beneficiaries. There are no third-party beneficiaries
entitled to enforce any provisions of this Agreement.
10.3 Entire Agreement. This Agreement, together with the Exhibits attached
hereto, contains the entire agreement and understanding of the parties hereto with respect
to the matters herein set forth, and all prior agreements, negotiations and understandings
relating to the subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
10.4 Amendment. This Agreement may not be modified except in writing,
signed by both of the parties hereto.
10.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to conflicts of law
principles thereof.
10.6 Notices. All communications between the parties with respect to any of
the provisions of this Agreement shall be in writing, and shall be sent by personal
delivery or airmail, facsimile transmission, or other commercial means of rapid delivery,
postage or costs of transmission and delivery prepaid,to:
If to the Clearinghouse,to:
Transportation Security Clearinghouse
601 Madison Street
Alexandria,VA 22314
Attn: Carter Morris
Tel.: (703) 824-0500
Fax: (703) 820-1395
If to Airport:
Executive Director
Augusta Regional Airport
1501 Aviation Way
Augusta,Georgia 30906
With a copy to: Augusta General Counsel
Augusta Law Department
535 Telfair Street, Bldg.,3000
Augusta,Georgia 30901-2386
Ph:(706)842-5550
Fax:(706)842-5556
or at such other address, such other person's attention, or such other facsimile number, as
shall be specified by like notice.
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10.7 Severability. In the event that any provision of this Agreement is declared
by a court of competent jurisdiction or arbitration tribunal to be void or unenforceable,
the parties hereto expressly agree that such void or unenforceable provision shall be •
deemed severed from this Agreement, and the remainder of this Agreement shall not be
affected thereby and shall remain in full force and effect to the extent feasible in the •
absence of the void and unenforceable provision. The parties furthermore agree to •
execute and deliver such amendatory contractual provisions to accomplish lawfully as
nearly possible the goals and purposes of the provision so held to be void or
unenforceable.
10.8 Waiver. Any party may waive compliance by the other party with any of
the provisions of this Agreement. No waiver of any provision shall be construed as a
waiver of any other provision or the same provision in a subsequent instance. Any
waiver must be in writing.
10.9 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and permitted assigns.
No assignment of this Agreement or of any contractual rights or obligations hereunder
may be made by either party (by operation of law or otherwise) without the prior written
consent of the other party hereto, which shall not be unreasonably withheld, and any
attempted assignment without the required consent shall be null and void.
10.10 Cooperation. Each party hereto shall take all such steps and measures as
may be requested by the other party hereto in order to effectuate the purposes of this
Agreement.
10.11 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same Agreement.
10.12 Headings. The section headings and other descriptions contained in this
Agreement are for reference purposes only and shall not affect any way the meaning or
interpretation of this Agreement.
10.13 Further Assurances. Each party hereto shall do and perform or cause to be
done and performed all further acts and things and shall execute and deliver all such other
certificates, instruments and documents as any other party hereto reasonably may request
in order to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
10.14 Dispute Resolution. The parties shall make good faith efforts to first
resolve internally any dispute under this Agreement by escalating it to higher levels of
management. Any dispute, controversy, or claim arising out of, relating to, involving, or
having any connection with this Agreement, including any question regarding the
validity, interpretation, scope, performance, or enforceability of this dispute resolution
provision, shall be exclusively and finally settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA") and the •
•
•
•
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AAA Optional Procedures for Large, Complex Commercial Disputes. Any arbitration
will be conducted on an individual, rather than a class-wide, basis. The arbitration shall
be conducted in the Commonwealth of Virginia, unless the parties agree on another
location, by three arbitrators, with each party selecting one arbitrator and the third
selected by the AAA. The parties shall be entitled to engage in reasonable discovery,
including requests for production of relevant non-privileged documents. Depositions and
interrogatories may be ordered by the arbitral panel upon a showing of need. All
decisions, rulings, and awards of the arbitral panel shall be made pursuant to majority
vote of the three arbitrators. The award shall be in accordance with the applicable law,
shall be in writing, and shall state the reasons upon which it is based. The arbitrators
shall have no power to modify or abridge the terms of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by or on
behalf of each of the parties hereto as of the date first above written.
TRANSPORTATION SECURITY
CLEARINGHOUSE (Clearinghouse) AUGUSTA AVIAT N COMMISSION
By: e By:
Name: i Cr '67d/� Name George
'R. Sasser
Title: Title: Chairman
City of AuA
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