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EXHIBIT 10.25(a)
SCHEDULED AIRLINE OPERATING AGREEMENT
AND
TERMINAL BUILDING LEASE
FOR
CHARLESTON INTERNATIONAL AIRPORT
BY AND BETWEEN
CHARLESTON COUNTY AVIATION AUTHORITY
AND
AIR SOUTH AIRLINES, INC.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
TABLE OF CONTENTS
ARTICLE AND SECTION PAGE
ARTICLE 1
Definitions........................................................................................................2
ARTICLE 2
Term...............................................................................................................8
ARTICLE 3 ASSIGNED AREA
Section 3.01 Terminal Facilities ..................................................................................9
Section 3.02 Aircraft Parking Positions............................................................................9
Section 3.03 Relocation of Concourse Facilities ..................................................................10
Section 3.04 Accommodation of Preferential Use Space .............................................................10
ARTICLE 4 USES AND PRIVILEGES
Section 4.01 Use of the Airport ..................................................................................12
Section 4.02 Scope of Privileges .................................................................................12
Section 4.03 Purchasing...........................................................................................14
Section 4.04 Signage..............................................................................................14
Section 4.05 Employees' Parking Facilities .......................................................................14
Section 4.06 Access ..............................................................................................15
ARTICLE 5 GENERAL USE OF ASSIGNED AREA
Section 5.01 Non-Interference with Utility Systems................................................................16
Section 5.02 Duty to Report Malfunctions .........................................................................16
Section 5.03 Hazardous Materials .................................................................................16
Section 5.04 Deprivation of Public Use............................................................................17
Section 5.05 Interference with Use by Others .....................................................................17
Section 5.06 Creation of Safety Hazards ..........................................................................17
Section 5.07 Creation of Nuisance.................................................................................18
Section 5.08 Release of Noxious Gases.............................................................................18
Section 5.09 Use of Area for Lodgings.............................................................................18
Section 5.10 Trash and Garbage ...................................................................................18
Section 5.11 Airport Operations ..................................................................................18
Section 5.12 Reserved Rights and Privileges ......................................................................19
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 6 IMPROVEMENTS, ALTERATIONS, AND REPAIRS
Section 6.01 Authority Capital Improvements ....................................................................20
Section 6.02 M.I.I. Consideration of Capital Improvements ......................................................20
Section 6.03 Accounting Treatment of Capital Improvements.......................................................21
Section 6.04 Improvements, Alterations, and Repairs.............................................................22
Section 6.05 Design of Improvements.............................................................................22
Section 6.06 Architectural Requirements ........................................................................23
Section 6.07 Construction of Improvements ......................................................................23
Section 6.08 Completion of Improvements ........................................................................23
Section 6.09 Easements on Assigned Area.........................................................................24
Section 6.10 Title to Improvements and Alterations..............................................................24
Section 6.11 Removal............................................................................................25
Section 6.12 Liens..............................................................................................25
ARTICLE 7 RENTALS, CHARGES AND FEES
Section 7.01 Monthly Activity Report............................................................................26
Section 7.02 Terminal Rentals...................................................................................27
Section 7.03 Landing Fee .......................................................................................28
Section 7.04 Apron Fees.........................................................................................28
Section 7.05 Other Fees and Charges ............................................................................29
Section 7.06 Payment Provision/Interest on Overdue Amounts......................................................29
Section 7.07 Net Agreement......................................................................................29
Section 7.08 Passenger Facility Charge..........................................................................30
Section 7.09 No Other Fees and Charges .........................................................................30
ARTICLE 8 RECALCULATIONS OF RENTALS, FEES, AND CHARGES
Section 8.01 General............................................................................................31
Section 8.02 Accounting Records.................................................................................31
Section 8.03 Coordination Procedures--Budget Review and Calculation of Rentals
Fees and Charges .......................................................................................31
Section 8.04 Calculation of Terminal Building Area Rental Rates ................................................32
Section 8.05 Calculation of Apron Fee Rate .....................................................................35
Section 8.06 Extraordinary Adjustments of Terminal Building Space Rental Rates and
Apron Fee Rate .........................................................................................36
ARTICLE 9 AUTHORIZING LEGISLATION FOR SALE OF BONDS
Section 9.01 General............................................................................................37
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 10 MAINTENANCE AND OPERATIONS OF AIRPORT
Section 10.01 General...........................................................................................38
Section 10.02 Terminal Building.................................................................................38
Section 10.03 Authority's Right to Inspect and Make Repairs ....................................................39
Section lO.04 Pollution Control.................................................................................40
ARTICLE 11 DAMAGE OR DESTRUCTION OF PREMISES
Section 11.01 Damage or Destruction ............................................................................42
ARTICLE 12 INSURANCE AND INDEMNIFICATION
Section 12.01 Insurance.........................................................................................43
Section 12.02 Indemnification...................................................................................44
Section l2.03 Non-Liability of Authority........................................................................45
ARTICLE 13 ASSIGNMENT OR TRANSFER
Section 13.01 General ..........................................................................................46
Section 13.02 Relinquishment of Space ..........................................................................46
Section 13.03 Mergers ..........................................................................................46
Section 13.04 Bankruptcy........................................................................................47
Section 13.05 Consent to Assignment, Transfer, or Conveyance....................................................47
ARTICLE 14 DEFAULTS
Section 14.01 Default...........................................................................................49
Section 14.02 Attorney Fees ....................................................................................49
ARTICLE 15 TERMINATION
Section 15.01 Events Permitting Termination by Airline..........................................................50
Section 15.02 Events Permitting Termination by Authority .......................................................50
Section 15.03 Survival of Airline's Obligation .................................................................51
Section 15.04 Surrender of Assigned Area........................................................................51
Section 15.05 Environmental Contamination.......................................................................52
ARTICLE 16 GENERAL PROVISIONS
Section 16.01 Non-Discrimination................................................................................53
Section 16.02 Granting of More Favorable Terms .................................................................53
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
Section 16.03 Federal Aviation Act, Section 308.......................................................54
Section 16.04 Subordination to Agreements with the United States Government...........................54
Section 16.05 Rules, Regulations, and Ordinances......................................................54
Section 16.06 Compliance with Law.....................................................................55
Section 16.07 Governing Laws .........................................................................55
Section 16.08 Nonwaiver of Rights.....................................................................55
Section 16.09 Agent for Service of Process............................................................56
Section 16.10 Waiver of Claims .......................................................................56
Section 16.11 Notices ................................................................................56
Section 16.12 Headings ...............................................................................57
Section 16.13 Severability ...........................................................................57
Section 16.14 Incorporation of Exhibits ..............................................................57
Section 16.15 Incorporation of Required Provisions ...................................................58
Section 16.16 Consent of the Parties .................................................................58
Section 16.17 Nonliability of Agents and Employees....................................................58
Section 16.18 Successor and Assigns Bound ............................................................58
Section 16.19 Time of Essence ........................................................................58
Section l6.20 Prudent Operation.......................................................................58
Section 16.21 Quiet Enjoyment.........................................................................58
Section 16.22 Entire Agreement .......................................................................59
CERTIFICATE OF SECRETARY .................................................................................61
OPINION OF ATTORNEY.......................................................................................62
EXHIBITS
A Airport Layout Cost Center Plan .....................................................................A-1
B Premises in Terminal Building .......................................................................B-1
C Preferential Use Gate Assignment Plan ...............................................................C-1
D Illustrative Calculation of Airline Rentals, Fees, and Charges ......................................D-1
E Operation and Maintenance Responsibilities Chart ....................................................E-1
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
CHARLESTON INTERNATIONAL AIRPORT
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
This Scheduled Airline Operating Agreement and Terminal Building Lease
(hereinafter referred to as "Agreement"), entered into this 1st of October,.
1996, by and between the Charleston County Aviation Authority (hereinafter
called "AUTHORITY"), as the governing body of the Charleston County Airport
District, a body politic and corporate, existing under and by virtue of the laws
of the State of South Carolina, and AIR SOUTH AIRLINES, INC. a (sole
proprietorship, partnership, or corporation), organized and existing under the
laws of the State of DELAWARE, (hereinafter called "AIRLINE"), having its
principal offices at 0000 XX. XXXXXX XXXXX - 0XX XXXXX XXXXXXXX, XX 00000
WITNESSETH:
WHEREAS, AUTHORITY is owner and operator of Charleston International
Airport (hereinafter called "Airport") located in Charleston County, South
Carolina contiguous to Charleston Air Force Base (hereinafter called "Charleston
AFB"); and
WHEREAS, under the terms of the instrument entitled "Agreement Between
the Charleston County Aviation Authority, Charleston, South Carolina and The
United States Air Force, (USAF), Charleston Air Force Base, S.C., on Joint Use
of Charleston Air Force Base" hereinafter referred to as the "Joint Use
Agreement", AUTHORITY has secured certain rights for the use of the flying field
and necessary appurtenances of Charleston AFB by civil aircraft; and
WHEREAS, AIRLINE is engaged in the business of scheduled transportation
by air of persons, property, mail and/or cargo and desires to use certain areas
and facilities owned by the AUTHORITY and acquire from AUTHORITY certain rights
and privileges in connection with its use of Airport; and
WHEREAS, AUTHORITY has the right to permit use of property on the Airport
upon the terms and conditions hereinafter set forth and has full power and
authority to enter into this Agreement in respect thereof; and
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements, and conditions contained herein, the parties hereto agree as
follows:
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 1
DEFINITIONS
SECTION 1.01--DEFINITIONS
The following words and phrases, wherever used in this Agreement shall,
for the purpose of this Agreement, have the following meaning:
1. "Act" means Act No. 1235 of the Acts and Joint Resolutions of the
General Assembly of the State of South Carolina, Regular Session
of 1970, as amended.
2. "Agreement" means this Scheduled Airline Operating Agreement and
Terminal Building Lease between the AUTHORITY and AIRLINE, as the
same may be amended or supplemented from time to time pursuant to
the terms hereof.
3. "Airline" means the scheduled air carrier executing this
Agreement.
4. "Air Transportation Company" shall mean a company engaged in the
business of scheduled or nonscheduled commercial transportation by
air of persons, property, mail, and/or cargo.
5. "Airport" means the land areas contiguous to Charleston AFB which
are now or hereafter owned, leased, or acquired and operated by
AUTHORITY and referred to collectively as Charleston International
Airport, the approximate boundaries of which are more particularly
shown on Exhibit "A", attached hereto.
6. "Airport Cost Centers" means cost areas to be used in accounting
for Airport Revenues and expenses, and for calculating and
adjusting certain rates, fees, and charges described herein and,
as more particularly described below:
a) "Airfield Area" means the flying field at Charleston AFB
(including runways, taxiways, approach and clear zones,
safety areas, infield areas, together with all associated
landing and navigational aids) owned, operated, and
maintained by the USAF, as it now exists or hereafter may
be modified, changed or developed, which provides for the
landing and takeoff, taxiing, and other operations of
military and civil aircraft, and the use of which by civil
aircraft is subject to the provisions of the Joint Use
Agreement between AUTHORITY and the USAF.
b) "Terminal Building Area" means the terminal building,
including related signage, landscaping, and curbside areas.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
c) "Parking and Roadway Area" means public, employee, and
rental car parking areas, access and terminal circulation
roads and rights-of-way, and related signage and
landscaping.
d) "Apron and Taxiway Area" means all airfield pavements and
appurtenances owned and operated by AUTHORITY and located
in "civil use areas" of the Airport (as the term is used in
the Joint Use Agreement), which now exist or are
constructed in the future by AUTHORITY, including, but not
necessarily limited to, the aircraft parking aprons, and
connecting taxiways.
e) "Aviation Support Area" means the civil area in the
northern portion of the Airport comprising fixed based
operations and fuel storage facilities, and other
facilities and leased property, as it now exists or may be
developed or improved from time to time.
f) "Airline Service Area" means the area adjacent to the
Terminal Building Area designated for cargo handling
facilities, maintenance facilities, and other airline
service and support facilities.
g) "Fuel Storage Area" means the aviation fuel storage and
distribution facilities serving the terminal complex at the
Airport.
h) "Reliever Airports Area" means the AUTHORITY's Reliever
Airports.
i) "Commercial/Industrial Area" means all remaining land areas
on Airport available for development by AUTHORITY for
aviation and/or nonaviation purposes.
7. "Airport District" means the Charleston County Airport District,
which is the territory embraced by the County of Charleston, a
political subdivision of the State of South Carolina created
pursuant to Act No. 1235 of the Acts and Joint Resolutions of
General Assembly of the State of South Carolina, Regular Session
of 1970, as amended.
8. "Airport System" means the Airport and the Reliever Airports.
9. "Annual General Obligation Bond Debt Service" means the total
annual amount of principal and interest payments required to be
deposited in a given Fiscal Year on any General Obligation Bonds
issued by the Airport District, together with an annual amount
sufficient to amortize, over the term of such bonds, the total
cost of interest on such bonds incurred during construction of the
bond funded project.
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CHARLESTON AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
10. "Annual Revenue Bond Debt Service" means the total amount required
to be deposited in any Fiscal Year to any interest, principal, and
sinking fund accounts established pursuant to the Bond Resolution.
11. "Assigned Area" means the space in the terminal building leased to
AIRLINE under this Agreement, including space leased
preferentially to AIRLINE, space leased jointly to AIRLINE and one
or more other Signatory Airlines, and space leased by AIRLINE in
common with all other Signatory Airlines.
12. "Authority" means the Charleston County Aviation Authority, the
governing body of the Airport District which is granted the
responsibilities of exercising and performing the corporate powers
and duties of the Airport District, and when used herein refers to
both.
13. "Bond Resolution" means the Airport Facilities Revenue Bond
Resolution Authorizing Airport System Revenue Bonds of the
Xxxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, as the same may from time to time be amended or
supplemented by a Supplemental Resolution in accordance with the
terms thereof.
14. "Capital Improvement" means (1) the acquisition of land or
easements, (2) the purchase of machinery, equipment or rolling
stock, (3) the planning, engineering, design, and construction of
new facilities, or (4) the performance of any extraordinary,
non-recurring major maintenance of existing facilities, all of
which may be acquired, purchased, or constructed by AUTHORITY to
improve, maintain, or develop the Airport System, and any single
item of which has a cost of $7,500 or more and a useful life in
excess of one year.
15. "Common Use Formula" means a formula which prorates the cost of a
service or space among those airlines using the service or space
so that each user pays that proportion thereof that the number of
its Enplaned Passengers at the Airport bears to the total number
of Enplaned Passengers of all such users of the service or space.
16. "Common Use Space" means those areas which may be assigned to two
or more airlines, as shown on Exhibit "B," attached hereto, the
cost of which is prorated among the users based on the Common Use
Formula.
17. "Director" means the Director of Airports or such other person
designated by AUTHORITY to exercise functions with respect to the
rights and obligations of AUTHORITY under this Agreement.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
18. "Enplaned Passenger" means any passenger boarding at the terminal,
including any such passenger that previously disembarked from
another aircraft of the same or a different air transportation
company.
19. "FAA" means the Federal Aviation Administration of the United
States Government, or any federal agencies succeeding to its
jurisdiction.
20. "Fiscal Year" refers to AUTHORITY's fiscal year and means the
twelve-month period commencing on July 1 and extending to June 30
of the following year.
21. "General Obligation Bonds" means any bond issued by the Airport
District secured by an irrevocable pledge of the full faith,
credit and taxing power of the Airport District, including the
$15,500,000 Series 1979 General Obligation Bonds issued in
September 1979.
22. "Joint Use Agreement" means the Agreement for Joint Use of the
Charleston AFB between the AUTHORITY and the United States Air
Force dated February 20, 1985, as same may be amended, modified,
or supplemented from time to time.
23. "Joint Use Formula" means a formula which prorates 50 percent of
the cost of a service or space among those airlines using the
service or space on the basis of that proportion which the number
of each user's Enplaned Passengers bears to the total number of
Enplaned Passengers of all such users of the service or space, and
50 percent of the charge on the basis of that proportion which the
number of each user's actual aircraft departures bears to the
total number of aircraft departures of all such users of the
service or space.
24. "Joint Use Space" means those areas which may be assigned to two
or more airlines, as shown on Exhibit "B," attached hereto, the
cost of which is prorated among the users based on the Joint Use
Formula.
25. "Maintenance and Operating Expenses" means AUTHORITY's current
annual expenses of maintaining, repairing, operating and
administering the Airport System including taxes, if any, as set
forth in the current approved AUTHORITY budget.
26. "Majority-in-Interest" (or "MII") means at least 50 percent in
number of the Signatory Airlines which together account for at
least 50 percent of the total dollars paid by all Signatory
Airlines through Landing Fees, Apron Fees, and Terminal Building
Space Rentals during the latest available Fiscal Year.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
27. "Maximum Certificated Gross Take-off Weight" means the maximum
weight in 1,000-pound units at which each aircraft operated by
AIRLINE at the Airport is authorized by the FAA to take off, as
recited in AIRLINE's flight manual governing that aircraft.
28. "Preferential Use Space" means those portions of the Terminal
Building Area and Apron and Taxiway Area assigned to AIRLINE as
shown on Exhibits "B and "C," attached hereto, to which AIRLINE
shall have priority over all other users subject to the provisions
of Article 3.
29. "Reliever Airports" means the system of general aviation airports,
other than the Airport, owned or operated by AUTHORITY, as such
system now exists (Charleston Executive Airport and East Xxxxxx
Airport) or as planned for the future.
30. "Requesting Airline" means AIRLINE or any other scheduled airline
requesting facilities in the terminal complex.
31. "Revenue Bonds" means any bonds issued by the Airport District
secured solely by a pledge of the Revenues of the Airport or the
Airport System.
32. "Revenue Departure" means any AIRLINE aircraft departure at the
Airport other than (1) an unscheduled departure of an aircraft
which landed at the Airport because of weather conditions,
mechanical or operating failure or causes, or for any other reason
of precaution or emergency, or (2) ferry (other than for a
revenue-producing charter flight), test, or training flights that
are less than 10 percent of AIRLINE's total monthly departures.
33. "Revenues" means income accrued by the AUTHORITY in accordance
with generally accepted accounting practices, including investment
earnings, from or in connection with ownership or operation of the
Airport System or any part thereof, or the leasing or use thereof,
all as defined and determined in the Bond Resolution.
34. "Rules, Regulations and Ordinances" means those lawful,
reasonable, and nondiscriminatory rules, regulations and
ordinances, pursuant to Section 16.05 of this Agreement,
promulgated by AUTHORITY for the orderly use of the Airport by
AIRLINE and other tenants and users of the Airport as the same may
be amended, modified, or supplemented from time to time.
35. "Signatory Airlines" means airlines engaged in the business of
scheduled transportation by air of persons, property, mail and/or
cargo to and from the Airport which have executed agreements with
AUTHORITY essentially
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
identical to this Agreement covering the use and occupancy of
facilities at the Airport.
36. "Signatory Rented Space" means the space in the terminal building
actually leased by AUTHORITY to Signatory Airlines.
37. "Special Facility" means any facility, improvement, or structure
acquired or constructed on the Airport System, the cost of
construction, acquisition, maintenance, and operation of which is
financed by Special Facility Bonds or by debt instrument other
than Revenue Bonds or General Obligation Bonds.
38. "Total Take-off Weight" means the sum of the Maximum Certificated
Gross Take-off Weight for all Revenue Departures of an airline
over a stated period of time. Said sum shall be rounded to the
nearest thousand pounds for all landing fee and apron fee
computations.
END OF ARTICLE 1
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 2
TERM
The term of this Agreement (the "term") shall commence at 12:01 a.m. on
Oct 1, 96, and shall continue thereafter until 12:01 a.m. on JUNE 30, 2001.
END OF ARTICLE 2
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 3
ASSIGNED AREA
SECTION 3.01--TERMINAL FACILITIES
A. AUTHORITY does hereby lease and demise to AIRLINE, and AIRLINE
does hereby lease and accept from AUTHORITY, the following Preferential Use
Space, Joint Use Space, and Common Use Space, as more particularly delineated on
Exhibit "B," attached hereto:
1. Preferential Use Space
(a) Ticket Counter and Queuing Area
(b) Office and Operations Space
(c) Outbound Baggage Area
(d) Baggage Service Office
2. Joint Use Space
(a) Hold Room
3. Common Use Space
(a) Inbound Baggage Area
(b) Baggage Claim Area
B. Any changes to the Assigned Area shall be evidenced by an
amendment to this Agreement pursuant to Section 16.22.
C. In the event that changes to Exhibit "B" are made to reflect
changes in the leased premises of others, or to reflect other space changes not
inconsistent with the provisions of this Agreement, then in such event said
revised Exhibits may be substituted herein without the necessity for amendment
of this Agreement.
SECTION 3.02--AIRCRAFT PARKING POSITIONS
A. Aircraft parking positions (gates) in the terminal complex shall
be assigned on a preferential use basis. AIRLINE will have priority in using
gates assigned to it on a
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
preferential basis to accommodate its scheduled flights; however, AUTHORITY may
assign such gate for use by others in periods when not used by AIRLINE, so long
as unassigned gates are not available and the gate is scheduled to be vacated by
others at least 30 minutes prior to AIRLINE's next scheduled arrival at said
gate.
B. Aircraft parking positions assigned to AIRLINE are designated on
Exhibit "C" attached hereto. AIRLINE shall have the right and first priority to
use those gates to which it is preferentially assigned and the right to locate
appropriate identifying interior signs at the doorways to those gates.
SECTION 3.03--RELOCATION OF CONCOURSE FACILITIES
In order to optimize passenger flow and maximize terminal concession
revenue, AUTHORITY reserves the right to reassign aircraft parking positions,
Joint Use Space, and associated operations space. Should any such reassignment
occur AIRLINE will be assigned new space comparable in size, quality, and
finish. Prior to any relocation, AUTHORITY and AIRLINE shall meet and mutually
agree on the cost of such relocation and responsibility for same. Such
relocation will be contingent upon mutual agreement concerning the cost and
responsibility for same.
SECTION 3.04--ACCOMMODATION OF PREFERENTIAL USE SPACE
A. In the event the AUTHORITY receives a written request from a
Requesting Airline for a type of space leased on a preferential basis to others,
and the Requesting Airline demonstrates to the satisfaction of the AUTHORITY
that it has contacted all Signatory Airlines at a level above the local station
manager and has exhausted all reasonable efforts to find reasonable
accommodations for its proposed operations on the Airport, the AUTHORITY shall
serve written notice to all Signatory Airlines of the AUTHORITY's intention to
make a determination, in not less than fifteen (15) calendar days, as to how the
Requesting Airline will be accommodated.
B. The AUTHORITY will be guided by all pertinent factors, including
AIRLINE's present use and the use planned by AIRLINE for such premises in the
one hundred eighty (180) days immediately after the request, the compatibility
of such Requesting Airline proposed operations and work force with AIRLINE's own
operations and work force, and the security of AIRLINE's and the Requesting
Airline's operations.
C. The AUTHORITY may request that planned uses and requirements be
documented and submitted in writing to the AUTHORITY, and if AIRLINE requests,
the AUTHORITY shall treat such planned uses and requirements as confidential,
proprietary information.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
D. If the AUTHORITY determines that the Requesting Airline can be
accommodated in the Preferential Use Space, the AUTHORITY shall: (1) assign the
Requesting Airline the space previously assigned to the AIRLINE; (2) notify
AIRLINE in writing of such reassignment of space and the effective date thereof;
and (3) provide to AIRLINE and to such Requesting Airline written statement
specifying the required terms and conditions, if any.
E. If a portion of AIRLINE's Assigned Area is reassigned to
accommodate a Requesting Airline in accordance with this Section 3.04, AIRLINE
shall make available to the Requesting Airline for the Requesting Airline's use,
AIRLINE's Preferential Use Space or such portion thereof as determined by the
AUTHORITY. Subject to the provisions of Article 6, AIRLINE may be entitled to
reimbursement for the unamortized book value of its improvements.
END OF ARTICLE 3
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 4
USES AND PRIVILEGES
SECTION 4.01--USE OF THE AIRPORT
AIRLINE, its employees, passengers, guests, patrons, and invitees shall
have the right to the use (in common with other duly authorized users) of the
Airport and appurtenances, together with all facilities improvements, equipment,
and services which have been or may hereafter be provided for common use at or
in connection with the Airport, subject to the Joint Use Agreement and the
Rules, Regulations and Ordinances of AUTHORITY, which documents AUTHORITY shall
make available to AIRLINE.
SECTION 4.02--SCOPE OF PRIVILEGES
AIRLINE shall have the right, in addition to all rights elsewhere granted
in this Agreement, to use the Airport for the following purposes:
A. The operation of a public transportation system by air for the
carriage of persons, property, mail, and/or cargo, including all activities
reasonably necessary to such operation.
B. The landing, taking off, flying over, taxiing, towing, loading,
unloading, servicing, repairing, de-icing and parking of aircraft or other
equipment of or operated by AIRLINE, or other Air Transportation Companies with
which there is an applicable agreement between AIRLINE and such other Air
Transportation Companies, including the right to provide or handle all or part
of the operations or services of such other companies subject to Section 4.03
and such Rules, Regulations and Ordinances as the AUTHORITY may establish.
C. The sale of tickets, documentation of shipments, handling of
reservations, operation of a customer service lounge, provision of skycap
services, and the loading and unloading of persons, property, cargo and mail at
Airport by such motor vehicles or other means of conveyance as AIRLINE may
desire to use in the operation of its air transportation system; provided,
however, that any ground transportation commercial carrier (including AIRLINE,
if applicable, except for such ground transportation as AIRLINE or its nominee
may provide solely for the benefit of its employees) regularly transporting
persons to and from Airport shall first secure and thereafter hold a valid
lease, license, or other agreement with AUTHORITY for the right to carry persons
to and from Airport and shall pay AUTHORITY such rentals, fees and/or
percentages of the fares of such ground transportation commercial carrier for
such right as AUTHORITY may set by ordinance or resolution.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
D. The training at the Airport of persons and testing of aircraft and
other equipment, such training and testing to be limited to that incidental to
AIRLINE's air transportation business at the Airport. Flight training shall be
undertaken by AIRLINE only to the extent permitted by, and subject to the
conditions of, the Joint Use Agreement and the Rules, Regulations and Ordinances
of AUTHORITY.
E. The sale, disposal, and exchange of AIRLINE's aircraft, engines,
accessories, fuel, oil, lubricants and other equipment, and materials or
supplies; provided however, that such right shall not be construed as
authorizing the conduct of a separate regular business by AIRLINE, but as
permitting AIRLINE to perform only such functions as are incidental to the
operation of its air transportation system or that of any other Signatory
Airline.
F. Subject to the provisions of Section 4.03, the servicing by
AIRLINE, or by its suppliers of materials or its furnishers of services, of
aircraft and other equipment, operated by AIRLINE or by other Signatory Airlines
with which AIRLINE has an applicable handling agreement, with fuel, oil,
lubricants, line maintenance, or other materials or supplies at its assigned
aircraft parking positions or other aircraft parking positions designated by
AUTHORITY. AUTHORITY reserves the right to designate other locations reasonably
accessible from the terminal complex for performance of aircraft maintenance and
service activities if such activities would interfere with aircraft operations
of other airlines in the terminal complex. Nothing herein shall be construed to
permit AIRLINE to construct, maintain, or operate a fuel storage facility. The
granting of a right to construct, maintain, or operate a fuel storage facility
shall be subject to the execution of a separate agreement between AIRLINE and
AUTHORITY.
G. The installation, maintenance and operation of such radio,
communication, meteorological and aerial navigation equipment and facilities at
suitable locations on the Airport, including computer equipment and furnishings
at passenger check-in counters in the terminal building, as may be necessary or
convenient in the opinion of AIRLINE for its operations; provided that such
equipment and facilities do not interfere with other Airport communication,
meteorological, or aerial navigation systems. The location of such equipment and
facilities shall be subject to the prior written approval of AUTHORITY.
H. AIRLINE may install and operate in its non-public Preferential Use
Space in the terminal building pay telephones or coin vending machines for the
sale of cigarettes, soft drinks, and food to its employees.
I. AIRLINE shall have the right to assess and collect a reasonable
charge to others for the use of any systems, equipment, or furnishings financed
and installed by AIRLINE. Such charges shall be reasonable and based upon
AIRLINE's cost of providing the systems, equipment, or furnishings. AIRLINE
shall provide the AUTHORITY a schedule of its charges.
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19
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
SECTION 4.03--PURCHASING
A. Airline shall have the right to purchase its requirements of
personal property or services, including fuel, lubricants, food, beverage, and
other passenger supplies, and any other materials and supplies used by AIRLINE
from any person or company of AIRLINE's choice, and the making of agreements
with any person or company of AIRLINE's choice for services to be performed for
AIRLINE which are incidental to operation of AIRLINE's air transportation
system.
B. AUTHORITY reserves the right to levy a reasonable and
non-discriminatory fee against any contractors, suppliers, or furnishers of
services including, but not limited to, AIRLINE. Notwithstanding the foregoing,
no fee shall be charged to AIRLINE for services provided to or by AIRLINE's
parent, subsidiary, or code-sharing partner.
C. It is understood that if AIRLINE's suppliers, contractors and
furnishers of service use any portion of the Airport or facilities of AUTHORITY
not leased to AIRLINE, then AUTHORITY may charge reasonable fees therefore, but
nothing herein gives the AIRLINE the right to grant to any other party the
privilege to use any portion of the Airport or facilities of the AUTHORITY.
SECTION 4.04--SIGNAGE
A. AIRLINE may install and operate identification signs, posters, and
graphics within AIRLINE's Assigned Area, subject to the prior written approval
of AUTHORITY, provided that such signs shall be:
1. Substantially uniform in size, type, and location with
those of other airlines;
2. Consistent with AUTHORITY's graphic standards; and
3. In compliance with all local laws, Rules, Regulations and
Ordinances.
B. Nothing herein shall be deemed to prohibit AIRLINE's installation
on the walls behind ticket counters and ticket lift counters in holdrooms,
identification and company logo signs as are customarily installed by AIRLINE in
such areas at comparable facilities.
SECTION 4.05--EMPLOYEES' PARKING FACILITIES
If not otherwise provided, AIRLINE shall have the right to the use of
reasonably adequate vehicular parking facilities for its employees employed at
the Airport in common with
-14-
20
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
other employees, which facilities shall be located in an area designated by
AUTHORITY as near as practicable to the terminal building. AUTHORITY reserves
the right to assess a reasonable charge for such employee parking facilities,
based on the cost of providing, operating, and maintaining the facilities.
SECTION 4.06--ACCESS
A. Subject to the provisions hereof, the Rules, Regulations and
Ordinances, and such restrictions as AUTHORITY may impose with respect to
AIRLINE's Assigned Area, AUTHORITY hereby grants to AIRLINE, its agents,
suppliers, employees, contractors, passengers, guests, and invitees, the right
and privilege of ingress and egress to the Assigned Area and to public areas and
public facilities of the Airport.
B. The ingress and egress provided for above shall not be used,
enjoyed, or extended to any person engaging in any activity or performing any
act or furnishing any service for or on behalf of AIRLINE that AIRLINE is not
authorized to engage in or perform under the provisions hereof unless expressly
authorized by AUTHORITY.
C. AUTHORITY shall have the right at any time or times to close,
relocate, reconstruct, change, alter, or modify any such means of access
provided for AIRLINE's use pursuant to this Agreement or otherwise, either
temporarily or permanently; provided that reasonable notice to AIRLINE and a
reasonably convenient and adequate means of ingress and egress shall exist or be
provided in lieu thereof. AUTHORITY shall suffer no liability by reason thereof
and such action shall in no way alter or affect any of AIRLINE's obligations
under this Agreement.
END OF ARTICLE 4
-15-
21
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 5
GENERAL USE OF ASSIGNED AREA
In addition to other obligations stated herein, AIRLINE assumes the
following obligations:
SECTION 5.01--NON-INTERFERENCE WITH UTILITY SYSTEMS
AIRLINE shall not do or permit to be done anything at or about the
Airport which may interfere with the effectiveness or accessibility of the
drainage and sewage system, fire protection system, alarm system, fire hydrants
and hoses, air conditioning systems, communications systems, and electrical
systems, if installed or located on the Airport. AIRLINE shall indemnify and
hold AUTHORITY harmless for any and all damages and/or expenses incurred by
AUTHORITY due to the interference by AIRLINE or any of its subcontractors with
the systems enumerated above.
SECTION 5.02--DUTY TO REPORT MALFUNCTIONS
AIRLINE shall report all malfunctions of the drainage and sewage system,
fire protection system, sprinkler system, alarm system, fire hydrants and hoses,
air conditioning systems, communications systems, and electrical systems, if
installed or located on the Assigned Area or AIRLINE's preferential aircraft
parking positions to the AUTHORITY promptly after its discovery. At a minimum,
such reporting will be promptly given to AUTHORITY's 24-hour communication phone
line.
SECTION 5.03--HAZARDOUS MATERIALS
A. AIRLINE shall not keep or store flammable liquids within the
enclosed portion of the Assigned Area, except in rooms or tanks especially
constructed for such purposes in accordance with standards established by the
National Board of Fire Underwriters, and approved by AUTHORITY from the
standpoint of safety. Any such liquids having a flash point of less than
100(degrees) F shall be kept and stored in safety containers of a type approved
by the Underwriters Laboratories.
B. Any and all materials stored, handled, used or disposed of by
AIRLINE or AIRLINE's tenants shall be the responsibility of the AIRLINE who
shall ensure that all laws, rules, and regulations of AUTHORITY, FAA, USAF,
Environmental Protection Agency (EPA), Department of Health and Environmental
Control (DHEC) and local, state, and federal governments and agencies are
followed.
-16-
22
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
C. AIRLINE shall not use the Assigned Area to generate, manufacture,
refine, heat, produce or process any "Hazardous Materials". For purposes of this
Section, "Hazardous Materials", includes without limitation, petroleum, crude
oil, natural gas, natural gas liquids, liquefied natural gas, synthetic gas
usable as fuel and "Hazardous Substances" or related materials as defined in 42
U.S.C. 9601 et. seq as amended and 42 U.S.C. 2011 et. seq as amended, in each
case as such laws may be amended and regulations and publications promulgated
pursuant thereto.
D. AIRLINE shall handle, store, transfer and/or dispose of "Hazardous
Substances", "Substances Hazardous to the Environment" and/or "Hazardous Waste"
in compliance with all applicable local, state, and federal statutes.
E. AIRLINE will defend, indemnify and hold harmless the AUTHORITY
from and against any claims, demands, penalties, damages, costs or expenses of
any nature including, without limitation reasonable and actual attorney,
engineering and consultant fees, investigation and laboratory fees, court costs
and litigation expenses, arising out of or in any way related to the past,
present, or future presence; past, present, or future release or threatened
release; past, present, or future disposal or removal of any "Hazardous
Substance" or "Hazardous Waste" when such presence, release, threatened release
or disposal was caused by AIRLINE, its agents, employees or contractors.
SECTION 5.04--DEPRIVATION OF PUBLIC USE
AIRLINE shall not conduct its operation in a manner that deprives the
public of its rightful, equal, and uniform use of the Airport property.
SECTION 5.05--INTERFERENCE WITH USE BY OTHERS
AIRLINE shall not interfere with reasonable use by others of common
facilities.
SECTION 5.06--CREATION OF SAFETY HAZARDS
AIRLINE shall not conduct its operations in such a way as to hinder
police, fire-fighting or other emergency personnel in the discharge of their
duties or as to constitute a hazardous condition that would increase the risks
normally attendant upon the operations contemplated under this Agreement.
-17-
23
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
SECTION 5.07--CREATION OF NUISANCE
AIRLINE shall not commit any nuisance or knowingly do or permit to be
done anything which may result in the creation or commission of a nuisance. The
conduct of the AIRLINE's normal scheduled air service shall not be deemed to
violate this provision.
SECTION 5.08--RELEASE OF NOXIOUS GASES
AIRLINE shall not cause, produce or permit to emanate from the Assigned
Area any unusual, noxious or objectionable smokes, gases, vapors, fumes or
odors. The conduct of the AIRLINE's normal scheduled air service shall not be
deemed to violate this provision.
SECTION 5.09--USE OF AREA FOR LODGINGS
AIRLINE shall not use the Assigned Area nor any part thereof for lodgings
or sleeping purposes.
SECTION 5.10--TRASH AND GARBAGE
AIRLINE shall make suitable arrangements for the temporary storage for
collection and for removal from the Preferential Use Space of all trash, garbage
and other refuse resulting from AIRLINE's operations on the Preferential Use
Space. AIRLINE shall provide appropriate covered, metal receptacles in an
attractive, safe, and sanitary manner, and will store such receptacles in an
inconspicuous place on the Preferential Use Space. AIRLINE shall pay for all
such costs. In addition, AIRLINE shall provide AUTHORITY with a copy of any
contract AIRLINE enters into with a garbage or waste company or disposal
service.
SECTION 5.11--AIRPORT OPERATIONS
A. AUTHORITY reserves unto itself and unto its successors and assigns
for the use and benefit of the public, a right of flight for the passage of
aircraft through the airspace above the surface of the Assigned Area, together
with the right to cause in said airspace such noise as may be inherent in the
operation of aircraft now known or hereafter used, and for navigation of flight
in said airspace for landing on, taking off from or operating on the Airport.
B. AIRLINE expressly agrees, on behalf of itself and its successors
and assigns, to restrict the height of structures, objects of natural growth and
other obstructions on the Assigned Area in compliance with the requirements of
Federal Aviation Regulations, Part 77, as such may be amended or replaced.
-18-
24
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
C. AIRLINE expressly agrees, on behalf of itself and its successors
and assigns, to prevent any use of the Assigned Area and any leasehold
improvements which would interfere with or adversely affect the operation or
maintenance of the Airport, or which would otherwise constitute a hazard at the
Airport.
D. AIRLINE agrees to comply with the intent of Federal Aviation
Regulations Part 107 (airport security) in the AUTHORITY's policies as outlined
in AUTHORITY's Federal Aviation Administration approved Security Master Plan.
AIRLINE further agrees that charges, fees, fines levied upon and paid by the
AUTHORITY through enforcement of Federal Aviation Regulations Part 107 or Part
139 or any subsequent regulation because of acts by AIRLINE's employees, agents,
suppliers, guests or patrons shall be borne by AIRLINE.
SECTION 5.12--RESERVED RIGHTS AND PRIVILEGES
All rights and privileges not specifically granted to AIRLINE in this
Agreement are reserved to the AUTHORITY.
END OF ARTICLE 5
-19-
25
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 6
IMPROVEMENTS, ALTERATIONS, AND REPAIRS
SECTION 6.01--AUTHORITY CAPITAL IMPROVEMENTS
A. It is contemplated by the parties that from time to time during
the term of this Agreement, AUTHORITY will undertake Capital Improvements to
preserve, protect, enhance, expand, or otherwise improve the Airport System. Any
such Capital Improvement to be paid for or funded using Airport Revenues shall
be subject to the provisions of this Article 6.
B. In conjunction with submission of its Annual Budget as described
in Section 8.03 hereof, AUTHORITY shall submit to AIRLINE, at least 60 days
prior to the first day of each Fiscal Year, a written report regarding proposed
Capital Improvements to the Terminal Building Area, Apron and Taxiway Area, and
Airfield Area to be undertaken during the Fiscal Year. This report shall include
the following:
1. A description of the proposed Capital Improvements,
together with cost estimates and any available preliminary
drawings.
2. Documentation of the need for and the benefits to be
derived from such expenditure.
3. The proposed method of funding (rate base, bonds, AUTHORITY
funds, grants-in-aid, etc.)
4. The allocation of cost, debt service or amortization
charges to Airport Cost Centers.
C. Within 30 days from receipt of such report, Signatory Airlines
will have the opportunity to meet collectively with AUTHORITY staff to review
the Capital Improvement program recommended by AUTHORITY to present any
questions, comments, or objections they may have with regard to the Capital
Improvement program. AUTHORITY agrees to give due consideration to the
questions, comments and objectives in developing its proposed Capital
Improvement program.
SEDITION 6.02--M.I.I. CONSIDERATION OF CAPITAL IMPROVEMENTS
A. AIRLINE agrees that debt service or amortization attributable to
AUTHORITY's cost, net of grants, of any other proposed Capital Improvement in
any given Fiscal Year may, upon completion and beneficial use of such project,
be included as an element of cost in the calculation of rentals, fees, and
charges in the applicable airline-supported cost
-20-
26
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
center under this Agreement if (1) the AUTHORITY's cost is not in excess of
$400,000, or (2) should the AUTHORITY's cost exceed $400,000, if the project is
not specifically disapproved in writing by a Majority-in-Interest of the
Signatory Airlines within sixty (60) days of submission of AUTHORITY's proposed
annual budget as provided in Section 8.03 of this Agreement.
B. Notwithstanding the limitation set forth in the preceding
paragraph, AUTHORITY reserves the right, subject to prior consultation with the
Signatory Airlines, to undertake the acquisition, purchase, or construction of
any Capital Improvement, and include debt service or amortization properly
attributable to that Capital Improvement in the applicable airline-supported
cost center for calculation of rentals, fees and charges hereunder, so long as
the Capital Improvement is necessary to:
1. Ensure compliance with any lawfully promulgated rule,
regulation or order of any federal, State, or other
governmental agency other than AUTHORITY which has
jurisdiction over the operation of the Airport.
2. Permit the continued operation, maintenance, and
improvement of the Airport for any of the purposes intended
hereunder, or as required by the trustee for the security
of the general obligation and revenue bonds.
3. Repair casualty damage to Airport property to the extent
not covered by Insurance.
C. The dollar amounts cited in Section 6.02, Section 6.03, and
Section 1.01(14) shall be adjusted each year in proportion to changes in the
Implicit Price Deflator index published by the U.S. Department of Labor, Bureau
of Labor Statistics, using as a base the latest published index available when
the AUTHORITY prepares its Annual Budget; provided, however, such annual
increases shall not exceed three (3%) percent in any single year.
SECTION 6.03--ACCOUNTING TREATMENT OF CAPITAL IMPROVEMENTS
A. SUBJECT to certain limitations described in this Section and
Section 6.02, the cost, debt service or amortization charges attributable to
Capital Improvements undertaken by AUTHORITY and properly allocable to the
Terminal Building Area, Apron and Taxiway Area, and Airfield Area will be
included in the applicable cost center for calculation of rates, fees and
charges payable by AIRLINE hereunder, as described below.
1. If, in any given Fiscal Year, the AUTHORITY's total
estimated cost, net of grants, of proposed Capital
Improvements applicable to airline supported cost centers
(the Xxxxxxxx Xxxxxxxx Xxxx, Xxxxx xxx Xxxxxxx Xxxx, xxx
Xxxxxxxx Xxxx) is less than $200,000, such Capital
-21-
27
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
Improvements will be funded through the Equipment and
Capital Outlay Fund, and AUTHORITY will include its cost of
such Capital Improvements as an element of cost in the
calculation of AIRLINE rates, fees and charges under
Section 8.04(A)(3) and 8.05(A)(3) of this Agreement. This
limit may be exceeded only if specifically approved by a
Majority-in-Interest of the Signatory Airlines.
2. If, in any given Fiscal Year, the AUTHORITY's total
estimated cost (net of grants) of proposed Capital
Improvements applicable to airline supported cost centers
is more than $200,000, AUTHORITY may:
a) Fund that portion of the total cost of such Capital
Improvements in excess of $200,000 from funds on
deposit in the Renewal and Replacement Fund or
Development and Contingency Fund, and include the
cost of amortization of such investment as an
element of cost in the calculation of AIRLINE rates,
fees and charges under Sections 8.04(A)(4) and
8.05(A)(4) of this Agreement, or
b) Fund such Capital Improvements through the issuance
of Additional Bonds, or some other form of debt
obligation and include annual debt service costs
attributable to such bonds as an element of cost in
the calculation of AIRLINE rates, fees and charges
under Section 8.04(A)(2) and 8.05(A)(2) of this
Agreement.
SECTION 6.04--AIRLINE IMPROVEMENTS, ALTERATIONS AND REPAIRS
A. AIRLINE shall make no alterations, additions, improvements to, or
installations on the Assigned Area under this Agreement without the prior
written approval of AUTHORITY. Any such alterations or improvements shall be
without cost to the AUTHORITY.
B. The ultimate control over the quality and acceptability of the
improvements in the Assigned Area will be retained by AUTHORITY and shall
require the review and written release for construction by the AUTHORITY prior
to installation.
SECTION 6.05--DESIGN OF IMPROVEMENTS
AIRLINE shall develop plans for constructing, erecting, and installing
any improvements on the Assigned Area, which in final form shall consist of (1)
working drawings, (2) technical specifications, (3) schedule for accomplishing
improvements, (4) schedule of finishes and graphics, and (5) a list of all
furnishings, fixtures and equipment to be located on
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28
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
the Assigned Area. AIRLINE shall submit two copies of all of the foregoing
documents, and any additional plans developed by or for AIRLINE, for the
construction of all improvements to AUTHORITY for approval.
SECTION 6.06--ARCHITECTURAL REQUIREMENTS
All construction shall be of first class quality. All structural
improvements, signs, equipment, and interior design and decor constructed or
installed by AIRLINE, its agents or contractors, including the plans and
specifications therefor, shall conform in all respects to applicable standards,
statutes, ordinances, building codes, and Rules, Regulations and Ordinances. All
plans and specifications must be stamped "Released for Construction" by the
AUTHORITY.
SECTION 6.07--CONSTRUCTION OF IMPROVEMENTS
A. At least two sets of final plans and specifications for the
improvements shall be submitted by AIRLINE to AUTHORITY for review. AUTHORITY
shall within thirty (30) days of receipt of any such plans and specifications
either release or refuse to release for construction the plans and
specifications so submitted. Released plans and specifications shall be stamped
"Released for Construction" by AUTHORITY. Only plans and specifications so
stamped may be used by AIRLINE.
B. AIRLINE shall be responsible for obtaining all building permits.
All proposed construction shall have all the proper environmental approvals.
C. In the event of AUTHORITY's refusal to release any portion of the
plans and specifications, AIRLINE shall promptly submit necessary modifications
and revisions thereof. AUTHORITY shall not unreasonably withhold or delay such
release. No substantial changes or alterations shall be made in said plans or
specifications after initial release by AUTHORITY, and no structural alterations
or improvements shall be made to or upon the Assigned Area without the prior
written release of AUTHORITY. AUTHORITY agrees to act promptly upon such plans
and specifications and upon requests for release of changes or alterations in
said plans or specifications. One final copy of plans for all improvements or
subsequent changes therein or alterations thereof shall, within thirty (30) days
after completion of project, be signed by AIRLINE and deposited with AUTHORITY
as an official record thereof.
SECTION 6.08--COMPLETION OF IMPROVEMENTS
A. Upon release for construction of plans and specifications as
provided in Section 6.07 hereof, and when authorized to proceed in accordance
with said Section of this Agreement,
-23-
29
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
AIRLINE shall in good faith immediately begin construction and installation of
the improvements, facilities, furniture and equipment in the Assigned Area and
prosecute the same to completion.
B. All of the aforementioned contractors of AIRLINE shall maintain
evidence of general liability and worker's compensation/employee's liability
insurance coverage satisfactory to the AUTHORITY. The AUTHORITY shall require
both a Payment and Performance Bond, each in the amount of one hundred percent
(100%) of the contract price, to be obtained in all cases. AIRLINE shall provide
evidence of builder's risk insurance naming the AUTHORITY as loss payee with
respect to one hundred percent (100%) in value of the improvements to be
provided under such contracts. No improvements, fixtures, or equipment shall be
subject to any liens whether created by operation of law or by agreement. All
construction shall in every respect conform to and comply with applicable
statutes, ordinances, building codes, rules and regulations of such authorities
as may have jurisdiction over any aspect of said construction. AIRLINE, at its
sole cost and expense, shall also procure all building, fire, safety, and other
permits necessary for any construction. Prior to commencement of construction,
AIRLINE shall submit evidence of a Performance Bond and a Payment Bond in the
amount of one hundred percent (100%) of the cost of improvements.
SECTION 6.09--EASEMENTS ON PREFERENTIAL USE SPACE
The Preferential Use Space shall be accepted by AIRLINE subject to any
and all then existing easements, and AUTHORITY shall have the right to install,
lay, construct, maintain, repair, and operate such sanitary sewers, drains,
storm water sewers, pipelines, manholes, connections, water, oil or gas
pipelines, and telephone and telegraph power lines and such OTHER appliances and
appurtenances necessary or convenient in connection therewith, over, in, upon,
through, across, and along the Preferential Use Space, or any part thereof, and
to enter thereupon at reasonable times for any and all such purposes; provided,
however, that no right of AUTHORITY provided for in this paragraph shall be so
exercised as to interfere unreasonably with the AIRLINE's operations hereunder.
Notwithstanding the language above, AUTHORITY shall have the right of immediate
access to utilities systems or portions thereof in the Preferential Use Space in
the event of an emergency which would threaten the safety of human life and/or
the property of the AUTHORITY.
SECTION 6.10--TITLE TO IMPROVEMENTS AND ALTERATIONS
A. Subject to the provisions of Section 15.04 (B), all improvements
made to the Assigned Area and all additions and alterations thereto made upon
said area by AIRLINE, shall be and remain the property of AIRLINE until
expiration or termination of this Agreement as set forth in Article 2, or
Article 15 at which time the said improvements shall become the property of
AUTHORITY.
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30
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
B. AIRLINE shall make no alterations, additions, improvements to, or
installations outside of the Assigned Area under this Agreement.
C. Plans and specifications for such work shall be filed with and
subject to the approval of the Director and all work shall be done in accordance
with local ordinances and state laws. Only plans and specifications marked
"Released for Construction" by the AUTHORITY may be used by AIRLINE's
contractors.
SECTION 6.11--REMOVAL
AIRLINE shall not remove or demolish, in whole or in part, any
improvements made either by AIRLINE or by AUTHORITY, without the prior written
approval of AUTHORITY.
SECTION 6.12--LIENS
A. If any mechanic's lien or other encumbrance shall be filed against
the Assigned Area or the improvements because of any act or omission (or alleged
act or omission) of AIRLINE, and arising from AIRLINE's work or subsequent
repair, maintenance, alteration or otherwise, AIRLINE shall, at its own cost and
expense, cause the same to be discharged of record or bonded within sixty (60)
days after written demand for the discharge or bonding thereof from AUTHORITY to
AIRLINE. Notwithstanding the foregoing, AIRLINE may contest any such lien or
encumbrance so long as such contest does not create an imminent danger of
foreclosure of such lien or encumbrance.
B. If AIRLINE fails to comply with the foregoing provisions,
AUTHORITY shall have the option, on fifteen (15) business days' prior notice to
AIRLINE, of discharging or bonding any such lien, charge, order or encumbrance
and AIRLINE shall reimburse AUTHORITY for all reasonable costs and expenses
thereof.
END OF ARTICLE 6
-25-
31
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 7
RENTALS, CHARGES, AND FEES
In return for use of the facilities, rights, licenses, and privileges
granted hereunder and for the undertakings of AUTHORITY, AIRLINE agrees to pay
AUTHORITY without deduction or set-off, during the term of this Agreement
certain charges and fees as set forth herein, in the following manner:
7.01--MONTHLY ACTIVITY REPORT
A. AIRLINE shall furnish to AUTHORITY on or before the fifteenth
(15th) day of each month, an accurate report of AIRLINE's operations at the
Airport during the preceding month, setting forth all data necessary to
calculate the fees and charges due under this Agreement. Said report shall
include, but shall not necessarily be limited to: (1) the AIRLINE's total number
of Revenue Departures for the month by type of aircraft and the Maximum
Certificated Gross Take-off Weight for the month; (2) the total number of
Enplaned Passengers and deplaned passengers; and (3) the amount of cargo,
freight, mail and express for such month.
B. If AIRLINE fails to furnish AUTHORITY with the report required by
Section 7.01(A), AIRLINE's Landing Fee and Apron Fee, as provided for hereafter
shall be determined by assuming that the AIRLINE's Total Take-off Weight for
such month was 100% of its Total Take-off Weight during the most recent month
for which such data are available for AIRLINE. Any necessary adjustment in such
Landing Fee and Apron Fee, shall be calculated after an accurate report
delivered to AUTHORITY by AIRLINE for the month in question, and resulting
surpluses or deficits shall be applied as credits or charges to the appropriate
invoices in the next succeeding month.
C. AIRLINE shall at all times maintain and keep books, ledgers
accounts or other records, wherein are accurately kept all entries reflecting
the activity statistics to be reported pursuant to Section 7.01(A). Such records
shall be retained by AIRLINE for a period of three (3) years subsequent to the
activities reported therein, or such other retention period as set forth in
Federal Aviation Regulation Part 249.7, and made available at Charleston, SC for
audit and/or examination by AUTHORITY or its duly authorized representative
during all normal business hours upon reasonable advance notice. AIRLINE shall
produce such books and records at Charleston, SC within thirty (30) calendar
days of AUTHORITY's notice to do so or pay all reasonable expenses, including
but not limited to transportation, food and lodging, necessary for an auditor
selected by AUTHORITY to audit said books and records.
-26-
32
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
D. The cost of audit, with the exception of the aforementioned
expenses, shall be borne by AUTHORITY; provided, however, the total cost of said
audit shall be borne by AIRLINE if either or both of the following conditions
exist:
1. The audit reveals an underpayment of more than five percent
(5%) of rentals, fees and charges due hereunder, as
determined by said audit; and/or
2. AIRLINE has failed to maintain true and complete books,
records, accounts, and supportive source documents in
accordance with Section 7.01(C)
SECTION 7.02--TERMINAL RENTALS
A. AIRLINE shall pay to AUTHORITY for its Preferential Use Space,
Joint Use Space, and Common Use Space in the terminal building, as set forth in
Section 3.01(A) hereof, monthly rentals based on annual rental rates for space
listed below, with such rates to be recalculated each Fiscal Year thereafter, as
set forth in Article 8 hereof.
TYPE OF SPACE BASIS OF USE
------------- ------------
Ticket Counter Space
and Queuing Area Preferential
Office and Operations
Space Preferential
Outbound Baggage Area Preferential
Baggage Service Office Preferential
Hold Room Joint
Baggage Claim Area Common
Inbound Baggage Area Common
B. Rental for Joint Use Space and Common Use Space shall be prorated
among the Signatory Airlines and other airline tenants and users according to
the Joint Use Formula and Common Use Formula using Enplaned Passenger and
aircraft departure statistics for the preceding six-month calendar period;
however, (1) if a new airline begins service to the Airport, the Enplaned
Passenger and aircraft departure statistics will be predetermined by AUTHORITY
to take into account any cessation or commencement of service and (2) if AIRLINE
ceases serving the Airport, it will continue to pay for Joint Use Space in an
amount equal to the average monthly billing for the last three full months of
AIRLINE's operations at THE AIRPORT FOR THE remaining duration of this
Agreement.
C. Subject to the limitations set forth in Article 6, to the extent
AUTHORITY funds are used to fund improvements, finishes, or equipment for
AIRLINES' benefit,
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
AIRLINE shall pay to AUTHORITY, monthly in advance, amounts sufficient to
amortize AIRLINE's appropriate share of the cost of tenant finishes and
equipment.
SECTION 7.03--LANDING FEE
A. AIRLINE shall pay to AUTHORITY monthly Landing Fees to be
determined by multiplying the number of 1,000-pound units of Total Take-off
Weight for AIRLINE during the month by the then-current Landing Fee rate
established by AUTHORITY, as provided for under provisions of the Joint Use
Agreement or Section 7.03(D) herein.
B. Effective October 1, 1996, the Landing Fee rate shall be $0.20 per
1,000 pounds of Maximum Gross Take-off Weight, the rate set forth in current Air
Force Regulation (AFR) 55-20 regarding civil operations at joint-use military
airfields. The AUTHORITY may increase the Landing Fee rate at the Airport,
provided that in no event shall said Landing Fee be greater than the rate set
forth in AFR 55-20, as amended or superseded.
C. The Landing Fee collected under this Section shall be applied as
Revenue to the Airfield Area Cost Center. Airfield Area cost shall be calculated
by totaling the following amounts:
1. The total fees payable to the USAF, as such amount is
established under the Joint Use Agreement.
2. The net cost incurred by AUTHORITY in operating the
Reliever Airports, up to a maximum of 50% of the Airfield
Area Cost Center Revenue.
D. In the event that the U.S. Air Force discontinues use of Charleston
AFB for a military flying mission and subsequently sells, transfers, or leases
to AUTHORITY the landing areas, runways, taxiways, and appurtenances necessary
for civil aircraft operations, all as provided for in the Joint Use Agreement,
AUTHORITY may establish the Landing Fee rate at the Airport, subject to prior
consultation with the Signatory Airlines, at the level necessary to recover the
costs incurred by AUTHORITY in operating, maintaining, and improving the
Airfield Area and providing crash/fire/rescue protection.
SECTION 7.04--APRON FEES
AIRLINE shall pay to AUTHORITY monthly Apron Fees to be determined by (1)
multiplying the monthly Variable Apron Fee Rate (to be calculated as provided in
Article 8) by AIRLINE'S total Take-off Weight for the month and (2) adding the
product of the
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
monthly Fixed Apron Fee Rate (to be calculated as provided in Article 8)
multiplied by the number of gates preferentially assigned to AIRLINE.
SECTION 7.05--OTHER FEES AND CHARGES
AIRLINE shall pay to AUTHORITY its pro rata shares of any actual costs
for the provision of any service or facilities which AUTHORITY is required to
provide by any governmental entity (other than AUTHORITY acting within its
proprietary capacity) having jurisdiction over the Airport.
SECTION 7.06--PAYMENT PROVISION/INTEREST ON OVERDUE AMOUNTS
A. Terminal Building Area rentals and charges shall be due and
payable the first day of each month in advance. Together with AIRLINE's Monthly
Activity Report submitted to AUTHORITY as provided in Section 7.01, AIRLINE
shall transmit to AUTHORITY payment for the amount of Landing Fees and Apron
Fees incurred by AIRLINE during said month, as computed by AIRLINE. The
acceptance by AUTHORITY of any payment made by AIRLINE shall not preclude
AUTHORITY from verifying the accuracy of AIRLINE's report and computations or
from recovering any additional payment actually due from AIRLINE. All other
charges or fees set forth herein shall be due within fifteen (15) days of the
date of the invoice therefor.
B. Any payment not received by the due date shall accrue interest at
the rate of 1.5% per month from the due date until paid in full.
SECTION 7.07--NET AGREEMENT
This is a net agreement with references to charges paid to AUTHORITY.
AIRLINE shall pay all taxes of whatever character that may be lawfully levied,
assessed, or charged by any governmental entity other than AUTHORITY upon the
property, real and personal, occupied, used or owned by AIRLINE, or upon the
rights of AIRLINE to occupy and use the premises and emolument received hereby,
or upon AIRLINE's improvements, fixtures, equipment or other property thereon,
or upon AIRLINE's rights or operations hereunder. AIRLINE shall have the right
at its sole cost and expense to contest the amount or validity of any tax or
license as may have been or may be levied, assessed or charged.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
SECTION 7.08--PASSENGER FACILITY CHARGE
The AUTHORITY reserves the right to assess and collect passenger facility
charges subject to the terms and conditions and such methods of collection set
forth in the Aviation Safety and Capacity Expansion Act of 199O, Section 9110
(the "PFC Act"), as such may be amended or superseded.
SECTION 7.09--NO OTHER FEES AND CHARGES
Except as provided in this Agreement, no further rentals, fees, licenses,
excise or operating taxes, tolls or charges shall be charged against or
collected from AIRLINE, its passengers, shippers and receivers of freight and
express; its suppliers of material, contractors, or furnishers of services, by
AUTHORITY for the premises, facilities, rights, licenses, and privileges granted
to AIRLINE in this Agreement.
END OF ARTICLE 7
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 8
RECALCULATION OF RENTALS, FEES, AND CHARGES
SECTION 8.01--GENERAL
Rentals, fees, and charges will be reviewed at least annually and
recalculated as necessary, based on principles and procedures set forth in this
Agreement, effective July 1 of each Fiscal Year.
SECTION 8.02--ACCOUNTING RECORDS
A. AUTHORITY shall maintain accounting records which will document
the following items for each of the Airport Cost Centers: (1) Revenues; (2)
Maintenance and Operating Expenses (3) Revenue Bond Debt Service; (4) General
Obligation Bond Debt Service; (5) Amortization of the cost of Capital
Improvements funded by AUTHORITY from other than bonds or grants-in-aid; and (6)
any other annual funding requirements pursuant to the Bond Resolution.
B. For purposes of keeping AIRLINE informed as to the financial
performance of the Airport, AUTHORITY shall provide to AIRLINE its annual budget
and audited financial statements. AIRLINE may request, and AUTHORITY shall
provide reasonable supplemental financial data required to assess the adequacy
of rates and charges established under this Agreement.
SECTION 8.03--COORDINATION PROCEDURES - BUDGET REVIEW AND CALCULATION OF
RENTALS, FEES, AND CHARGES
A. On or before March 1 prior to the beginning of each Fiscal Year,
AIRLINE shall submit to AUTHORITY, in writing, its Maximum Certificated Gross
Take-off Weight forecast for that Fiscal Year. On or before May 1 prior to the
beginning of each Fiscal Year adjustment period, AUTHORITY shall submit to
AIRLINE the following reports:
1. AUTHORITY's proposed annual budget for the Fiscal Year
including all estimated Maintenance and Operating Expenses;
Revenue Bond Debt Service and General Obligation Bond Debt
Service; proposed expenditures for Capital Improvements for
the Airports, and estimated Revenues, all allocated to
Airport Cost Centers on a consistent basis from year to
year.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
2. AUTHORITY's calculation of proposed AIRLINE rentals,
fees, and charges for the Fiscal Year, based on the
procedures set forth in this Agreement.
B. Within thirty (30) days after receipt of the reports, a
meeting shall be held between AUTHORITY and the Signatory Airlines, to discuss
the proposed rentals, fees, and charges and to initiate any action pursuant to
Sections 6.01, 6.02, and 6.03. AUTHORITY shall give due consideration to any
comments and suggestions of AIRLINE regarding the proposed annual budget and
calculation of the proposed rentals, fees, and charges.
C. AUTHORITY shall adopt an annual budget which may include
revisions made as a result of AUTHORITY's discussions with AIRLINE and as a
result of AUTHORITY's budget process. AUTHORITY shall promptly furnish AIRLINE
with a copy of such approved annual budget, together with the calculation of
rentals, fees and charges which will become effective as of the first day of the
Fiscal Year.
D. AUTHORITY will act with due diligence to adopt the annual
budget in a timely fashion. If, for any reason, the annual budget has not been
adopted by AUTHORITY as of the first day of any Fiscal Year, the rentals, fees
and charges in effect during the preceding Fiscal Year shall continue in effect
until (1) the new Annual Budget has been adopted by AUTHORITY and (2) AUTHORITY
has calculated the rentals, fees and charges in accordance therewith. The new
rentals, fees, and charges shall then be made effective retroactive to the first
day of such Fiscal Year.
SECTION 8.04--CALCULATION OF TERMINAL BUILDING AREA RENTAL RATES
Terminal Building Area rental rates shall be calculated in the following
manner, in accordance with Exhibit "D":
A. AUTHORITY's estimated total "Terminal Building Area Cost"
for the Fiscal Year shall be calculated by totaling the following amounts:
1. The total of estimated direct and allocated indirect
Maintenance and Operating Expenses allocable to the
Terminal Building Area.
2. The pro rata portion of Annual Revenue Bond Debt
Service allocable to the Terminal Building Area.
3. The pro rata portion of the budgeted deposit to the
Equipment and Capital Outlay Fund allocable to the
Terminal Building Area. The total annual deposit to
the Equipment and Capital Outlay Fund shall
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38
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
not be in excess of $200,000 or such greater amount
as a Majority-in-Interest of the Signatory Airlines
shall approve.
4. The annual amortization of the amount applicable to
the Terminal Building Area for any expenditures made
by AUTHORITY prior to July 1 of the adjustment year
for Capital Improvements in the Terminal Building
Area, which are financed by AUTHORITY from the
Renewal and Replacement Fund, the Development and
Contingency Fund, the Surplus Fund, or other funds
not subject to provisions of the Bond Resolution,
with such annual amortization to be computed at
interest and based on economic lives for each
capital item determined by AUTHORITY in accordance
with generally accepted accounting practices and
current average municipal bond interest rates. It is
understood, however, that in performing the
calculations under this section, no amortization
charges will be included on capital expenditures
which have been financed with the proceeds of
AUTHORITY bond issues.
5. The pro rata portion of Annual General Obligation
Bond Debt Service allocable to the Terminal Building
Area.
B. The sum of the following estimated Revenues and credits
will then be deducted from the estimated Terminal Building Area Cost for the
Fiscal Year:
1. Estimated Terminal Building Area Revenues from
sources other than Signatory Airlines and USAF AMC
space rentals, military charter departure fees,
international arrival fees, and concession revenues
directly attributable to international and military
charter activities, specifically including:
a) Concession fees and utility charges from food
and beverage, news and gifts, on-Airport
rental car (other than ground rentals and
ready car space rentals), specialty shops,
insurance, telephone, and advertising display
concessions.
b) Rental income from space leased to all
tenants other than Signatory Airlines and the
USAF AMC.
c) Allocable interest income from the Revenue
Fund, Operation and Maintenance Fund, and
Bond Fund based upon the proportion of net
income (prior to depreciation) generated by
the Domestic and International Xxxxxxxx
Xxxxxxxx Xxxx,
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00
XXXXXXXXXX XXXXXX AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
Airfield Area, Apron and Taxiway Area, and
Reliever Airports Area Cost Centers.
Concession revenues generated from military charter
operations, including the duty free shop and income
from food, beverage, and vending machine concessions
serving military charter areas of the terminal, are
specifically excluded from the above definition of
Terminal Building Area revenues and are not to be
credited against the estimated Terminal Building
Area Cost in the calculation of Signatory Airline
rental rates.
2. The "Military Charter Facilities Revenue Credit,"
computed by the applying the following formula:
Credit = A x B/C
Where:
A= the area (in square feet) of the military
charter boarding area, outbound baggage area,
and the International Arrivals Area
B= the estimated Terminal Building Area Cost for
the Fiscal Year
C= the total area (in square feet) of enclosed
space in the terminal building
C. The estimated net Terminal Building Area cost for the Fiscal Year
will then be divided by the total amount of Signatory Rented Space to determine
an average rental rate per square foot.
D. The amount of space leased to Signatory Airlines will be
multiplied by the average rental rate per square foot to determine the
"Signatory Airline Rental Requirement."
E. The AUTHORITY will then develop a schedule of rental rates by type
of space such that the sum of the products obtained by multiplying the total
amount of space leased by the Signatory Airlines (estimated as of the first day
of the adjustment period for which rates are being calculated) by the rental
rate will equal the total annual Signatory Airline Rental Requirement for the
Fiscal Year for which the space rentals are being calculated.
F. As soon as possible following the close of a Fiscal Year, actual
Terminal Building Area Costs attributable to the Terminal Building Area shall be
ascertained by the AUTHORITY for such Fiscal Year and the difference between the
actual Signatory Airline
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
Rental Requirement and Signatory Airline space rentals billed shall be applied
as (or recovered through) direct credits against (or additional charges to)
space rental invoices over the remaining months of the current Fiscal Year.
G. Notwithstanding the rental rate calculation procedure described in
this Section 8.04, paragraphs (A) through (F), the average rental rate paid by
the Signatory Airlines in each Fiscal Year shall not be less than the rate
obtained by dividing the total Terminal Building Area Cost by the total area of
enclosed space in the terminal building.
SECTION 8.05--CALCULATION OF APRON FEE RATE
Apron Fee rates shall be recalculated in the following manner and in
accordance with Exhibit "D":
A. AUTHORITY's estimated "Apron and Taxiway Area Cost" for the Fiscal
Year shall be calculated by totaling the following amounts:
1. The total of estimated direct and allocated indirect
Maintenance and Operating Expenses allocable to the Apron
and Taxiway Area.
2. The pro rata portion of Annual Revenue Bond Debt Service
allocable to the Apron and Taxiway Area.
3. The pro rata portion of the budgeted deposit to the
Equipment and Capital Outlay Fund allocable to the Apron
and Taxiway Area.
4. The annual amortization of the total amount (or the pro
rata amount applicable to the Apron and Taxiway Area) of
any expenditures made (or expected to be made) by AUTHORITY
prior to July 1 of the adjustment year for Capital
Improvements in the Apron Taxiway Area, which are financed
by AUTHORITY from the Renewal and Replacement Fund, the
Development and Contingency fund, the Surplus Fund, or
other funds not subject to provisions of the Bond
Resolution with such annual amortization to be computed at
interest and based on economic lives for each capital
expenditure item determined by the AUTHORITY in accordance
with generally accepted accounting practices and current
average municipal bond interest rates. It is understood
that no amortization charges will be included in the
calculation under this section which is associated with
capital expenditures which have been financed with the
proceeds of AUTHORITY bond issues.
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41
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
5. The pro rata portion of Annual General Obligation Bond Debt
Service allocable to the Apron and Taxiway Area.
6. Any additional amounts estimated by AUTHORITY to meet the
requirements of Article VII of the Bond Resolution
(Particular Covenants), Section 711 (Rates and Charges) for
the Fiscal Year.
B. The sum of all estimated Revenues for the Fiscal Year attributable
to the Apron and Taxiway Area, not including Revenues derived from Signatory
Airlines for use of the aprons and taxiways, shall then be deducted from the
Apron and Taxiway Area Cost to determine the estimated "Net Apron and Taxiway
Area Cost" for the Fiscal Year.
C. Fifty percent of the estimated Net Apron and Taxiway Area Cost
shall then be divided by the total number of preferentially assigned aircraft
parking positions and the quotient so obtained shall be further divided by
twelve to determine the monthly "Fixed Apron Fee Rate" per gate; and fifty
percent of the estimated Net Apron and Taxiway Area Cost shall be divided by the
projected Total Take-off Weight of Signatory Airlines for the Fiscal Year to
determine the "Variable Apron Fee Rate" per 1,000 pounds of take-off weight.
D. As soon as possible following the close of each Fiscal Year, the
actual Apron and Taxiway Area Cost and actual required Variable and Fixed Apron
Fee Rates shall be ascertained by the AUTHORITY for the Fiscal Year. The actual
required Variable Apron Fee Rate will be multiplied by the actual Total Take-off
Weight of all Signatory Airlines and the actual required Fixed Apron Fee Rate
will be multiplied by the number of aircraft parking positions preferentially-
assigned to Signatory Airlines to determine the actual Signatory Airline Apron
Fee Requirement for the Fiscal Year. The difference between the actual Signatory
Airline Apron Fee Requirement and actual Apron Fees billed to such Signatory
Airlines for such Fiscal Year shall be applied as (or recovered through) direct
credits against (or additional charges to) invoices over the remaining months of
the current Fiscal Year.
SECTION 8.06--EXTRAORDINARY ADJUSTMENTS OF TERMINAL BUILDING SPACE RENTAL RATES
AND APRON FEE RATE
In the event that, at any time during a Fiscal Year, any of the
components of Terminal Building Area Cost, or Apron and Taxiway Area Cost, or
the total Takeoff Weight of all Signatory Airlines varies materially (upward or
downward 10% or more) from the estimates used in setting Terminal Building
Rental Rates or Apron Fee Rates, such rates may be adjusted either up or down
for the balance of such Fiscal Year, in the event that such adjustment is deemed
necessary by AUTHORITY or AIRLINE to ensure that adequate Revenues will be
available from such fees to cover the estimated Signatory Airline Rental
Requirement and Signatory Airline Apron Fee Requirement for the Fiscal Year.
END OF ARTICLE 8
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42
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 9
AUTHORIZING LEGISLATION FOR SALE OF BONDS
SECTION 9.01--GENERAL
A. In the event of conflicts between this Agreement and the Bond
Resolution, the Bond Resolution shall govern.
B. The following terms, where used in this Agreement, have the
meanings set forth in the Bond Resolution:
- Construction Fund
- Revenue Fund
- Operation and Maintenance Fund
- Bond Fund
- Equipment and Capital Outlay Fund
- Renewal and Replacement Fund
- Development and Contingency Fund
- Surplus Fund
C. Subject to the terms and provisions of the Bond Resolution, it is
mutually understood and agreed that, so long as any Bonds secured by the Bond
Resolution are outstanding, the deposit and application of Revenues shall be
governed by the Bond Resolution. AUTHORITY agrees to notify AIRLINE of any
material changes to Bond Resolution affecting AIRLINE's obligations herein.
END OF ARTICLE 9
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43
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 10
MAINTENANCE AND OPERATION OF AIRPORT
SECTION 10.01--GENERAL
A. AUTHORITY agrees that it will with reasonable diligence prudently
develop, improve, and at all times maintain and operate the Airport with
adequate, efficient, and qualified personnel and keep Airport in good repair
including, without limitation, the Terminal Building Area, Apron and Taxiway
Area, and all appurtenances, facilities, and services now or hereafter connected
therewith as the same relate to AIRLINE's air transportation system; will keep
Airport and its aerial approaches free from obstruction and interference for the
safe and proper use thereof by AIRLINE; and will develop, maintain and operate
Airport in all respects in a manner at least equal to the standards or rating
established by the FAA and any other governmental agency having jurisdiction
thereof, except for conditions beyond the control of AUTHORITY.
B. Responsibility for maintenance, cleaning, and operation of
terminal building and apron facilities shall be as set forth in Exhibit "E," and
as set forth in Section 10.02 below.
SECTION 10.02--TERMINAL BUILDING
A. AUTHORITY shall operate and maintain and keep in good condition
and repair the terminal building and all additions, improvements, utilities,
facilities, and equipment now or hereafter provided by AUTHORITY at or in
connection with the terminal building, except any improvements, facilities, and
equipment constructed or installed by AIRLINE. AUTHORITY shall keep the terminal
building, except AIRLINE's Preferential Use Space, in a neat, orderly, sanitary,
and presentable condition.
B. In accordance with EXHIBIT "E," AUTHORITY shall at all times
maintain and keep in good condition and repair the public area and Joint Use
Space and Common Use Space of the terminal building so as to provide for
reasonable unobstructed use thereof by passengers and invitees, and shall keep
such area adequately supplied, equipped (including directional signs),
furnished, and decorated.
C. AUTHORITY shall supply or cause to be supplied appropriate and
adequate equipment and maintenance for air conditioning, ventilation, heat,
water, and sewerage facilities for terminal building public use areas, AIRLINE's
Preferential Use Space, Joint Use Space, and Common Use Space; adequate
illumination in Common Use Space and Joint Use Space; and janitorial service in
terminal building public use areas and Common Use Space and Joint Use Space.
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44
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
D. AIRLINE shall at all times keep its Preferential Use Space neat,
orderly, sanitary, and presentable. AIRLINE shall be responsible for relamping
such spaces; shall furnish its own janitorial service for such spaces and shall
cause to be removed at AIRLINE's own expense from such spaces all waste,
garbage, and rubbish, and agrees not to deposit the same on any part of Airport,
except that AIRLINE may deposit same temporarily in its Preferential Use Space
or in space designated by AUTHORITY in connection with collection for removal.
Any repairs made by AIRLINE or on its account shall be of good, commercially
reasonable quality in both materials and workmanship. All repairs will be made
in conformity with the rules, regulations and ordinances prescribed from time to
time by federal, state, county, or municipal authorities having jurisdiction
over the location of the work.
E. AIRLINE shall maintain the apron area associated with its
preferentially assigned gates in a neat, clean, and orderly condition, free from
litter, debris, refuse, petroleum products, or grease that may result from
activities of its passengers, employees, agents, or suppliers, and remove all
oil and grease spillage which is attributable to AIRLINE's aircraft or equipment
from its aircraft parking positions.
F. AIRLINE shall perform, at its sole expense, ordinary preventive
maintenance and ordinary upkeep and repair of it's personal property, trade
fixtures, and equipment located in its Preferential Use Space, or Joint Use
Space.
G. AIRLINE shall, at the expiration of the term of this Agreement,
make any and all repairs necessary to restore the property within its
Preferential Use Space to its original condition, ordinary wear and tear
accepted.
H. No abatement of fees and charges shall be claimed by or allowed to
AIRLINE by reason of the exercise of any or all of the foregoing rights
enumerated in this Section.
SECTION 10.03--AUTHORITY'S RIGHT TO INSPECT AND MAKE REPAIRS
AUTHORITY, by its authorized officers, employees, agents, contractors,
subcontractors and other representatives shall have the right (at reasonable
times, upon prior notice, and using its best efforts to create as little
interruption of AIRLINE's business as is reasonably practical), to enter upon
the Assigned Area accompanied by an authorized AIRLINE representative, if
practical for the following purposes:
A. To inspect such area to determine whether AIRLINE has complied and
is in compliance with the terms and conditions of this Agreement. AUTHORITY
shall be the sole judge of the quality of maintenance.
B. To perform such maintenance, cleaning, or repair as AUTHORITY
reasonable deems necessary and, if AIRLINE fails to perform its obligations
under this Article,
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45
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
AUTHORITY may perform the work and recover the reasonable cost of such
maintenance, cleaning, or repair from AIRLINE, plus a 15 percent administrative
charge from AIRLINE on the next rent date.
C. Without limiting the generality of the foregoing, the AUTHORITY,
by its officers, employees, representatives, and contractors, shall have the
right, for the benefit of AIRLINE or for the benefit of others at the Airport,
to maintain existing or future utilities systems or portions thereof in the
Assigned Area, including therein, without limitation thereto, systems for the
supply of heat, hot and cold water, gas, electricity, and for the furnishing of
fire alarm, fire protection, sewage, drainage, air conditioning, telephone,
telegraph, and equipment connected with or appurtenant to all such systems, and
to enter upon the Assigned Area at all reasonable times to make such repairs,
alterations, and replacement as may, in the opinion of the AUTHORITY be deemed
necessary or advisable and from time to time, to construct or install over, in,
under or through the Assigned Area new lines, pipes, mains, wires, conduits, and
equipment; provided, however, that such repair, alteration, replacement or
construction shall not unreasonably interfere with the use of the Assigned Area
by AIRLINE. Notwithstanding the above language, AUTHORITY shall have the right
to immediate access to utilities systems or portions thereof in Assigned Area in
the event of an emergency which would threaten the safety of human life and/or
the property of the AUTHORITY.
D. Nothing in this Section shall, or shall be construed to, impose
upon the AUTHORITY any additional obligation so to construct or maintain or to
make repairs, replacements, alterations, or additions to Preferential Use Space,
or shall create any liability for any failure so to do.
E. No abatement of fees and charges shall be claimed by or allowed to
AIRLINE by reason of the exercise of any or all of the foregoing rights
enumerated in this Section.
SECTION 10.04--POLLUTION CONTROL
AIRLINE, its officers, agents, servants, employees, invitees, independent
contractors, successors or assigns shall not discharge or place any industrial
waste or other foreign material into any component of the storm drainage system
or onto any paved or unpaved area within the boundaries of the Airport without
first neutralizing or treating same as required by applicable anti-pollution
laws or ordinances, and in a manner satisfactory to AUTHORITY, the Environmental
Protection Agency, the Department of Health and Environmental Control, and other
public bodies, federal, state, or local having jurisdiction over, or
responsibility for prevention of pollution of canals, streams, rivers, and other
bodies of water. AIRLINE's introduction of objectionable waste into any
component of AUTHORITY'S sanitary or storm drainage system may, if not remedied
by AIRLINE with all due dispatch, at the sole discretion of AUTHORITY, be deemed
to be an event of default and cause for cancellation of this
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46
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
Agreement by AUTHORITY, in conformity with the provisions of Article 14 hereof.
Such cancellation shall not relieve AIRLINE of or from liability for such
introduction.
END OF ARTICLE 10
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47
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 11
DAMAGE OR DESTRUCTION OF PREMISES
SECTION 11.01--DAMAGE OR DESTRUCTION
A. Should the Assigned Area or any portions thereof, or buildings or
structures of which such space may be a part, be damaged by fire or other
casualty, the AUTHORITY shall notify AIRLINE within sixty (60) days whether the
space shall be repaired. If the space is to be repaired, it will be repaired
with due diligence by the AUTHORITY, and the rental allocable to the particular
building, rooms, or other portion of the space rendered untenantable shall be
abated for the period from the occurrence of the damage to the completion of the
repairs provided, however, that the AUTHORITY will exert its best effort to
provide AIRLINE with reasonably similar temporary substitute space, if
available, at such rent as deemed necessary and reasonable by the AUTHORITY, but
in no event in art amount greater than that previously paid by AIRLINE for such
space until such time as the repairs are completed.
B. If the AUTHORITY shall fail to notify AIRLINE of its decision
within sixty (60) days after destruction, the AUTHORITY shall be deemed to have
elected to terminate this Agreement as to the space damaged or destroyed, and
the Agreement shall automatically terminate as to such space as of the date of
the damage.
END OF ARTICLE 11
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48
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 12
INSURANCE AND INDEMNIFICATION
SECTION 12.01--INSURANCE
A. AIRLINE shall carry during the term of this Agreement, the
liability insurance coverage with limits as hereinafter stated, but the carrying
of such insurance coverage shall not relieve AIRLINE of any of its obligations
under this Agreement.
B. AIRLINE shall, without expense to AUTHORITY, and upon commencement
of the term hereof, obtain and cause to be kept in force liability insurance
coverage, insofar as such coverage is available under policies and endorsements
thereto approved by the South Carolina Insurance Commission, insuring against
the liabilities set forth in the indemnification paragraph below. Such insurance
shall include, by way of example but not by way of limitation, comprehensive
general liability coverage and automobile liability insurance coverage and shall
be in not less than the amounts hereinafter stated. Such insurance coverage
shall be provided by policies issued by a company or companies of sound and
adequate financial responsibility. Such insurance policies shall contain an
endorsement providing that AUTHORITY will be given not less than thirty (30)
days notice prior to the cancellation of the policy or material alteration of
the coverages provided by said policies. The comprehensive general liability
policies shall include contractual liability coverage and shall make reference
to this Agreement. AIRLINE shall cause a certificate or certificates of
insurance to be furnished to AUTHORITY evidencing such insurance coverage. In
the event AUTHORITY is notified that any of the coverage required herein is to
be canceled or changed in such a manner as not to comply with the requirements
of the Agreement, AIRLINE shall, within thirty (30) days prior to the effective
date of such cancellation or change, obtain and provide AUTHORITY with
certificates evidencing the re-establishment of the insurance coverage required
hereby.
The following statement is required on the face of the insurance
certificate:
"Charleston County Aviation Authority, its officials, servants, agents,
and employees are named as additional insureds consistent with the terms
of the Scheduled Airline Operating Agreement and Terminal Building
Lease. "
C. The minimum limits of coverage shall be as follows:
1) Comprehensive Public Liability Insurance, including but not
limited to Personal Injury, broad form contractual and
broad form Property Damage, (per accident):..........
Combined Single Limit $100,000,000
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49
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
2) Automobile Liability Insurance, bodily (per person)
Property Damage
(per accident):............Combined Single Limit $5,000,000
3) Fire Insurance - (Contents, improvements, etc. within
Assigned Area):
..................l00% of replacement value of improvements
4) Worker's Compensation:.............Per Applicable State Law
The aforesaid amounts and types of insurance shall be reviewed from time
to time by AUTHORITY and adjusted if AUTHORITY reasonably determines such
adjustments are necessary to protect AUTHORITY's interest.
D. Insofar as said insurance provides protection against liability for
damages to third parties for personal injury, death, and property damage,
AUTHORITY shall be included as an additional insured; provided, however, such
liability insurance coverage shall also extend to damage, destruction, and
injury, to AUTHORITY owned or leased property and AUTHORITY personnel excluding
claims attributable to worker's compensation, and to the extent caused by, or
resulting from the negligent or willful acts, operations, or omissions of
AIRLINE, its officers, agents, employees, and independent contractors on the
Airport. AUTHORITY shall have no liability for any premiums charged for such
coverage, and the inclusion of AUTHORITY as an additional insured is not
intended to, and shall not, make AUTHORITY a partner or joint venturer with
AIRLINE in its operations on the Airport.
SECTION 12.02--INDEMNIFICATION
AIRLINE covenants that it and all of its agents, servants, employees, and
independent contractors will use due care and diligence in all of its or their
activities and operations at the Airport and that AIRLINE hereby agrees to
indemnify and hold harmless AUTHORITY for all damages to the property of
AUTHORITY which shall be caused by an act or omission on the part of AIRLINE,
its agents, servants, employees, or independent contractors, and AIRLINE shall
pay on behalf of AUTHORITY all sums which AUTHORITY shall become obligated to
pay by reason of the liability, if any, imposed by law upon AUTHORITY for
damages because of bodily injury, including damages for care and loss of
service, and including death at any time resulting from bodily injury, and
because of injury to or destruction of property, including pollution or
environmental damage, and including the loss of use thereof, which may be caused
by or result from any of the activities, omissions, or operations of AIRLINE,
its agents, servants, employees, or contractors and AIRLINE shall pay and
satisfy judgments finally establishing the liability of AUTHORITY in all
actions defended by AIRLINE pursuant to this section; AIRLINE shall investigate
or cause the investigation of accidents involving such injuries; shall negotiate
or cause to be negotiated all claims made as may be deemed expedient by AIRLINE,
and shall defend, or cause to be defended, suits for damages, even if
groundless, false, or fraudulent, brought on account of such injuries or
damages, in the name and on behalf
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CHARLESTON COUNTY AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
of AUTHORITY; AIRLINE shall pay or cause to be paid all cost incurred by
AUTHORITY including but not limited to reasonable legal fees and expert fees
actually incurred in any legal proceeding defended by AIRLINE aforesaid, and
interest accruing up to the date of payment by AIRLINE, and all premiums charged
upon appeal bonds required in such proceedings, and all expenses incurred by
AIRLINE for investigation, negotiation, and defense. AUTHORITY shall, upon
notice thereof, give AIRLINE every demand, notice, summons, or other process
received in any claim or legal proceeding contemplated herein. In the event
AUTHORITY shall fail to give AIRLINE notice of any such demand, notice, summons,
or process received by AUTHORITY and such failure to give notice shall result in
prejudice to AIRLINE in the defense of any action or legal proceeding
contemplated herein, such failure or delay shall release AIRLINE of its
liability as set forth in this paragraph insofar as only the particular claim or
legal proceeding is concerned, and only to the extent of such prejudice. Nothing
in this Article shall be deemed a change or modification in any manner
whatsoever of the method or conditions of preserving, asserting, or enforcing
any claim or legal liability against AUTHORITY. This shall not be construed as a
waiver of AUTHORITY's sovereign immunity. AIRLINE shall further indemnify
AUTHORITY for any and all fines, penalties, assessments, levies, or similar
costs assessed on the AUTHORITY but caused by or as a result of actions taken or
forborne by AIRLINE.
SECTION 12.03--NON-LIABILITY OF AUTHORITY
A. AUTHORITY shall not in any event be liable for any acts or
omissions of AIRLINE or its agents, servants, employees, or independent
contractors, or for any condition resulting from the operations or activities of
any lessee, tenant, or concessionaire, AIRLINE's agents, servants, employees, or
independent contractors, or for any conditions resulting from the operations or
activities of AIRLINE's agents, servants, employees, or independent contractors
either to AIRLINE or to any other person except to the extent caused by the
negligence or willful misconduct of AUTHORITY, its officers, employees, or
agents.
B. AUTHORITY shall not be liable for AIRLINE's failure to perform any
of the obligations under this Agreement or for any delay in the performance
thereof, nor shall any such delay or failure be deemed a default by AUTHORITY
except to the extent caused by the negligence or willful misconduct of
AUTHORITY, its officers, employees, or agents.
C. AUTHORITY shall not be liable for any loss or damages suffered by
AIRLINE arising out of the interruption or cessation of the business conducted
by AIRLINE under this Agreement.
END OF ARTICLE 12
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51
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 13
ASSIGNMENT OR TRANSFER
SECTION 13.01--GENERAL
Except as provided in this Article 13, AIRLINE shall not at any time
assign, transfer, convey, mortgage, pledge, or encumber its interest under this
Agreement, or any part of the Assigned Area, to any party without prior written
approval of AUTHORITY.
SECTION 13.02--RELINQUISHMENT OF SPACE
If AIRLINE desires to relinquish any of its Assigned Area, AIRLINE will
notify AUTHORITY in writing of the space available, and AUTHORITY shall use its
best efforts to reassign the space to another airline. No assignment, transfer,
conveyance, or sublease by AIRLINE shall relieve AIRLINE of its responsibility
for payment of rent and performance of all other obligations provided in this
Agreement, without specific written consent by AUTHORITY to such relief.
SECTION 13.03--MERGERS
A. AIRLINE shall not allow its interest under this Agreement to be
transferred to, passed to or devolved upon any other person, firm or
corporation, by operation of law, stock transfer, or otherwise without the prior
written consent of AUTHORITY, it being understood that a transfer or series of
transfers of an amount or amounts totaling fifty percent (50%) or more of
AIRLINE's outstanding voting stock to one party or a group of parties acting in
concert shall be deemed to be a transfer of AIRLINE's interest hereunder.
B. The foregoing provisions shall not apply to AIRLINE or to a
corporation which owns all or substantially all of the shares of AIRLINE if the
shares of AIRLINE or such owner corporation are traded on the New York Stock
Exchange, American Stock Exchange, or NASDAQ Exchange.
C. As to AIRLINE's or owner corporations whose shares are traded on
the New York Stock Exchange, American Stock Exchange, or NASDAQ Exchange, the
following provision shall apply:
AIRLINE shall not assign, transfer, sublease, pledge, surrender,
or otherwise encumber or dispose of the Assigned Area, or any
interest therein, or permit any other person to occupy the same,
without the prior written consent of AUTHORITY. However, the
obligations of
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52
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
AIRLINE hereunder may be fulfilled or discharged by a licensed
member of AIRLINE, duly appointed by AIRLINE and approved by
AUTHORITY, on the express condition that any such licensee shall
subscribe to this Agreement and expressly assume each and every
obligation of AIRLINE hereunder and upon such assumption shall
have all the privileges and rights granted to AIRLINE. The
restrictions of this paragraph shall also not apply to any
assignment by AIRLINE to a corporation into or with which AIRLINE
may merge or consolidate upon such successor corporation's express
assumption of AIRLINE's obligations hereunder.
D. Any assignment, sublease, or transfer of any type of AIRLINE's
obligations permitted hereunder or to which AUTHORITY may consent shall not
operate to release or discharge AIRLINE from its obligations under this
Agreement.
SECTION 13.04--BANKRUPTCY
Furthermore, Section 13.01 shall not apply to any valid assumption or
assignment of this Agreement, the Assigned Area, or any part thereof by a
trustee, or the AIRLINE, as a debtor in possession under Section 365 of the
Bankruptcy Code of 1978, as amended; provided, however, that adequate assurance
of future performance as provided by Section 365 of the Bankruptcy Code of 1978,
as amended is given. For the purposes of the assumption or assignment of this
Agreement this shall include, but shall not be limited to:
1. Adequate assurance of the reliability of the proposed source for
the charges and fees due under this Agreement upon the assumption
or assignment of this Agreement;
2. Adequate assurance that all other consideration due under this
Agreement shall be forthcoming after the assumption or assignment
of this Agreement; and
3. The procurement of a bond from a financially reputable surety
covering any costs or damages incurred by the AUTHORITY.
SECTION 13.05--CONSENT TO ASSIGNMENT, TRANSFER, OR CONVEYANCE
A. Except as otherwise provided in this Agreement, AIRLINE may
assign, transfer, or convey its interest under this Agreement only upon
receiving the prior written consent of AUTHORITY, which consent shall not be
unreasonably withheld.
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CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
B. Under no circumstances will AIRLINE be allowed to mortgage,
encumber, or subrogate the real property contained in the Assigned Area.
C. Consent by AUTHORITY to any type of transfer provided for by this
Article shall not in any way be construed to relieve AIRLINE from obtaining
further consent for any subsequent transfer or assignment of any nature
whatsoever.
END OF ARTICLE 13
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54
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 14
DEFAULTS
SECTION 14.01--DEFAULT
A. If AIRLINE (1) fails to pay fees and charges or any other payment
past due hereunder within thirty (30) days of mailing of written notice of a
past due account, or (2) fails to commence immediately to keep and perform any
of its other covenants and agreements within thirty (30) days of mailing of
written notice, or (3) fails to continue to complete any of its covenants and
agreements after performance is commenced, or after the filing of any petition,
proceedings, or action by, for, or against the AIRLINE under any insolvency,
bankruptcy, or re-organization act of law, then at the election of AUTHORITY:
1. Without terminating this Agreement, AUTHORITY may re-enter the
areas and improve and recontract all or any part of it to others,
for the account of AIRLINE, including costs of renovation and
fifteen percent (15%) administrative fee paid to AUTHORITY for all
amounts received, and AIRLINE shall promptly reimburse AUTHORITY
for any deficiency in charges or other payments received under
such recontracting, as compared to AIRLINE's obligations
hereunder.
2. At any time before or after a re-entry and recontracting as
provided in Section 14.01(A) above, AUTHORITY may terminate
AIRLINE's rights under this Agreement as provided in Article 15,
without any restriction upon recovery by AUTHORITY for past due
charges and other obligations of AIRLINE.
B. AUTHORITY shall have all additional rights and remedies as may be
provided by law.
SECTION 14.02--ATTORNEY FEES
If the termination of the Agreement by AUTHORITY is due to the default of
the AIRLINE, thereby resulting in any litigation, settlement, or arbitration
that finds the AIRLINE in default under the above conditions, the AIRLINE agrees
to indemnify and hold harmless the AUTHORITY from all liability and expense and
will pay and discharge all loss including reasonable and actual attorney fees,
cost and expenses resulting from or in any manner connected with such
litigation, settlement, or arbitration including administration, appellate or
collateral proceedings, investigation, negotiation, and defense of the
Agreement.
END OF ARTICLE 14
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55
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 15
TERMINATION
SECTION 15.01--EVENTS PERMITTING TERMINATION BY AIRLINE
AIRLINE may terminate this Agreement and terminate all of its future
obligations hereunder at any time that AIRLINE is not in default in its payments
or other obligations to the AUTHORITY hereunder, by giving AUTHORITY thirty (30)
days advance written notice;
1. If the Airport is permanently abandoned as an air transportation
facility.
2. If the use of the Airport is restricted in such a manner that the
AIRLINE cannot reasonably operate on the Airport for a period of
sixty (60) days.
3. If the AUTHORITY is in breach of any of the covenants or
agreements contained in this Agreement for a period exceeding
thirty (30) days after receipt of written notice of such breach.
SECTION 15.02--EVENTS PERMITTING TERMINATION BY AUTHORITY
A. AUTHORITY may terminate this Agreement and all of its obligations
hereunder upon thirty (30) days notice and may exercise all rights of entry and
re-entry upon the demised Assigned Area, with or without process of law, upon or
after the occurrence of any one of the following events:
1. The breach by AIRLINE of any of the covenants or agreements
contained in this Agreement for a period exceeding thirty
(30) days after mailing of written notice of such breach;
or subsequent breach by AIRLINE of any of the covenants or
agreements contained herein at any time after mailing of
thirty (30) days written notice whether or not AIRLINE came
into initial compliance; or
2. The termination by AIRLINE of the conduct, or a material
portion of the conduct, of AIRLINE's business at the
Airport.
3. Pursuant to the requirements of 14 CFR Part 158, AUTHORITY
shall have the right to terminate this Agreement in the
event any portion of AIRLINE's Assigned Area is not fully
utilized and is not made available for use by potentially
competing air carriers or foreign air carriers. The
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56
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
foregoing provision shall apply only if and to the extent
required by 14 CFR Part 158 or by any PFC assurance
executed by AUTHORITY pursuant to said regulation.
B. Any re-entry shall not in any manner affect, alter, or diminish
any of the obligations of AIRLINE under this Agreement.
C. No acceptance by the AUTHORITY of fees, charges, or other
payments, in whole or in part, for any period or periods during or after a
default of any of the terms, covenants, or conditions to be performed, kept, or
observed by AIRLINE, other than payment in full after a default in the payment
of fees and charges as set forth in Article 7 hereof, shall be deemed a waiver
of any right on the part of the AUTHORITY to terminate this Agreement on
account of such default.
D. No waiver by the AUTHORITY of any default on the part of AIRLINE
in the performance of any of the terms, covenants, or conditions hereof to be
performed, kept, or observed by AIRLINE shall be, or be construed to be, a
waiver by the AUTHORITY of any other or subsequent default in performance of any
of said terms, covenants and conditions.
E. Not withstanding any of the above, AUTHORITY may immediately
terminate this Agreement if AIRLINE fails to keep the requirements of Section
12.01 in full force and effect.
SECTION 15.03--SURVIVAL OF AIRLINE'S OBLIGATION
In the event that this Agreement shall have been terminated in accordance
with the notice of termination, as provided in Section 15.02 hereof, or the
interests of AIRLINE canceled pursuant thereto, or in the event that the
AUTHORITY has re-entered, regained, or resumed possession of the Assigned
Area, the AUTHORITY shall have the right of continuing in effect all
obligations hereunder of AIRLINE.
SECTION 15.04--SURRENDER OF ASSIGNED AREA
A. AIRLINE covenants and agrees that upon expiration of the term of
this Agreement or upon earlier termination as herein above provided, it will
peaceably surrender possession of the Assigned Area hereunder in good condition,
reasonable wear and tear, acts of God, fire, and other casualties excepted.
AUTHORITY shall have the right to take possession of said Assigned Area.
AUTHORITY shall not be required to give notice to quit possession at the
expiration date of the term of this Agreement.
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57
CHARLESTON COUNTY AVIATION AUTHORITYY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
B. AIRLINE shall have the right upon termination or reassignment and
within thirty (30) days thereafter, to remove all trade fixtures and other
personal property installed or placed by it at its expense, in, on, or about the
Airport, subject, however, to any valid lien which AUTHORITY may have thereon
for unpaid rentals, fees and charges. The AIRLINE shall not abandon any of its
property on the Assigned Area without the written consent of AUTHORITY and
agrees to reimburse AUTHORITY for any costs incurred in the removal of AIRLINE's
property by AUTHORITY.
C. Any and all property not removed by AIRLINE within the said thirty
(30) day period shall, at the option of the AUTHORITY become a part of the land
on which it is located and title shall vest in the AUTHORITY.
D. Any holding-over by AIRLINE after the termination of this
Agreement or the expiration of its term without the written consent of
AUTHORITY, except for the period authorized for removal of property herein upon
the expiration or termination hereof, shall create a month to month term only.
All insurance and performance bond requirements shall remain in full force and
effect.
SECTION 15.05--ENVIRONMENTAL CONTAMINATION
Upon termination (whether by expiration of the term, cancellation,
forfeiture, repurchase or otherwise), AUTHORITY may test the Assigned Area for
environmental and/or petroleum contamination, the cost for which shall be
reimbursed by AIRLINE upon demand if the contamination was caused by AIRLINE's
operations. In the event the Assigned Area tests positive for environmental
and/or petroleum contamination, AIRLINE, at AIRLINE's expense, shall be required
to clean up any and all contamination (all in accordance with all applicable
laws, rules, and regulations) if the contamination was caused by AIRLINE's
operations. At the AUTHORITY'S option, AUTHORITY may require AIRLINE to deposit
a sum of money equal to estimated cost to clean up the contamination. Said
deposit shall be due within ten (l0) days of demand by the AUTHORITY. Upon
completion of clean up and acceptance by AUTHORITY, AUTHORITY shall return said
deposit to AIRLINE, less cost incurred, if any. If costs exceed the amount of
the deposit, AIRLINE shall promptly reimburse AUTHORITY for the costs.
END OF ARTICLE 15
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58
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
ARTICLE 16
GENERAL PROVISIONS
SECTION 16.01--NON-DISCRIMINATION
A. The AIRLINE, for itself, its personal representatives, successors
in interest, and assigns, as a part of the consideration hereof, does hereby
covenant and agree: (1) that no person, on the grounds of race, color, creed,
political ideas, sex, age, or physical or mental handicap, shall be excluded
from participation, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities; (2) that in the construction of
any improvements and the furnishing of services, no person on the grounds of
race, color, creed, political ideas, sex, age, or physical or mental handicaps,
shall be excluded from participation in, denied the benefits of, or otherwise be
subjected to discrimination; (3) that the AIRLINE shall use the Assigned Area in
compliance with all other requirements imposed by or pursuant to Title 49, Code
of Federal Regulations, Department of Transportation, Subtitle A, Office of the
Secretary, Part 21, Non-discrimination in Federally Assisted Programs of the
Department of Transportation, Effectuation of Title VI of the Civil Rights Act
of 1964, and as said acts and regulations may be amended.
B. Noncompliance with Section 16.01(A) above shall constitute a
material breach thereof, and in the event of such noncompliance, within a
reasonable period, the AUTHORITY shall have the right to terminate this
Agreement and the rights hereby created without liability therefor or, at the
election of the AUTHORITY or the United States, either or both said Governments
shall have the right to judicially enforce Section 16.01(A).
SECTION 16.02--GRANTING OF MORE FAVORABLE TERMS
A. AUTHORITY covenants and agrees not to enter into any lease,
contract, or any other agreement with any other Air Transportation Company
providing scheduled service at the Airport containing substantially more
favorable terms than this Agreement, or to grant to any tenant engaged in
scheduled air transportation, rights or privileges with respect to the Airport
which are not accorded AIRLINE hereunder, unless the same rights, terms, and
privileges are concurrently made available to AIRLINE.
B. This Article shall not prevent AUTHORITY from permitting
non-scheduled itinerant aircraft operators from using the terminal building
facilities on a charge-per-use basis. Further, this Article shell not prevent
AUTHORITY from extending more favorable terms to any carrier operating aircraft
of less than 12,500 pounds gross landing weight on routes which are not
competitive with Signatory Airlines; provided, however, that rental rates
extended to such carriers shall not be less than the rate obtained by dividing
the total Terminal Building Area Cost by the total area of enclosed space in the
terminal building.
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59
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
C. Notwithstanding Section 16.02 (B) above, AUTHORITY convenants that
it will take the differing commitments and obligations of the nonsignatory
tenants into consideration in establishing nonsignatory tenant rates. At the
effective date of this Agreement, it is the AUTHORITY's intent to establish
nonsignatory rates at the lesser of the commercial compensatory rate or 1.25
times the Signatory Airlines' rate.
SECTION 16.03--FEDERAL AVIATION ACT, SECTION 308
Nothing herein contained shall be deemed to grant AIRLINE any exclusive
right or privilege within the meaning of Section 308 of the Federal Aviation Act
for the conduct of any activity on the Airport.
SECTION 16.04--SUBORDINATION TO AGREEMENTS WITH THE UNITED STATES GOVERNMENT
This Agreement is subject and subordinate to the provisions of any
agreement heretofore or hereafter made between AUTHORITY and the United States,
relative to the operation or maintenance of the Airport, the execution of which
has been required as a condition precedent to the transfer of federal rights or
property to AUTHORITY for Airport purposes, or to the expenditure of federal
funds for the improvement or development of the Airport, including the
expenditure of federal funds for the development of the Airport in accordance
with the provisions of the Federal Aviation Act of 1958, as it has been amended
from time to time. To the best of its knowledge and belief, AUTHORITY convenants
that it has no existing agreements with the United States in conflict with the
express provisions hereof.
SECTION 16.05--RULES, REGULATIONS AND ORDINANCES
A. AIRLINE shall observe and obey all Rules, Regulations and
Ordinances promulgated, from time to time during the term hereof, by AUTHORITY
governing conduct on and operations at the Airport and use of its facilities.
Copies of the Rules, Regulations and Ordinances as adopted, shall be forwarded
to AIRLINE upon request. AUTHORITY agrees that all Rules, Regulations and
Ordinances so promulgated shall not be inconsistent with the express terms of
this Agreement or any legally authorized rule or regulation of the Federal
Aviation Administration, or any other federal or state agency, which is binding
in law on AIRLINE, as the same now are or may from time to time be amended or
supplemented.
B. AIRLINE shall not violate, nor knowingly permit its agents,
contractors, or employees acting on AIRLINE's behalf to violate any such Rules,
Regulations and Ordinances.
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60
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
SECTION 16.06--COMPLIANCE WITH LAW
A. AIRLINE shall not use the Assigned Area or any part thereof, or
permit the same to be used by any of its employees, officers, agents,
subcontractors, invitees, or licensees for any illegal purposes and shall, at
all times during the term of this Agreement, comply with all applicable
ordinances and laws of any City, County, or State government or of the United
States Government, and of any political division or subdivision or agency,
authority, or commission thereof which may have jurisdiction to pass laws or
ordinances or to make and enforce Rules, Regulations and Ordinances with respect
to the uses hereunder or the Assigned Area.
B. At all times during the term of this Agreement, AIRLINE shall in
connection with its activities and operations at the Airport:
1. Comply with and conform to all present and future statutes
and ordinances, and regulations promulgated thereunder, of
all federal, state, and other governmental bodies of
competent jurisdiction which apply to or affect, either
directly or indirectly, the AIRLINE's activities under this
Agreement.
2. Make, at its own expense, all nonstructural improvements,
repairs, and alterations to its Preferential Use Space
(subject to prior written approval of AUTHORITY),
equipment, and personal property which are required to
comply with or conform to any of such statutes and
ordinances.
3. Be and remain an independent contractor with respect to all
installation, construction, and services performed by or on
behalf of AIRLINE hereunder.
C. AUTHORITY shall in no way be held liable or responsible for
AIRLINE's violation or non-observance of any of the aforementioned ordinances
and laws.
SECTION 16.07--GOVERNING LAWS
This Agreement and all disputes arising hereunder shall be governed by
the laws of the State of South Carolina.
SECTION 16.08--NONWAIVER OF RIGHTS
No waiver of default by either party of any of the terms, covenants, and
conditions hereof to be performed, kept, and observed by the other party shall
be construed as, or shall
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61
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
operate as, a waiver of any subsequent default of any of the terms, covenants,
or conditions herein contained, to be performed, kept, and observed by the other
party.
SECTION 16.09--AGENT FOR SERVICE OF PROCESS
It is expressly understood and agreed that if AIRLINE is not a resident
of the State of South Carolina, or is an association or partnership without a
member or partner resident of said State, or is a foreign corporation, then in
any such event AIRLINE shall appoint an agent for the purpose of service of
process in any court action between it and AUTHORITY arising out of or based
upon this Agreement; otherwise, if AIRLINE does not notify AUTHORITY of said
appointment within thirty (30) days of execution of this Agreement, AIRLINE does
hereby designate the Secretary of State, State of South Carolina its agent for
the purpose of service of process in any court action between it and AUTHORITY
arising out of or based upon this Agreement, and the service shall be made as
provided by the laws of the State of South Carolina for service upon a
non-resident. It is further expressly agreed, covenanted, and stipulated that,
if for any reason, service of such process is not possible, and as an
alternative method of service of process, AIRLINE may be personally served with
such process out of this State by the registered mailing of such complaint and
process to AIRLINE at the address set out hereafter in this Agreement. Any such
service out of this State shall constitute valid service upon AIRLINE as of the
date of mailing, and AIRLINE shall have thirty (30) days from date of mailing to
respond thereto. It is further expressly agreed that AIRLINE is amenable to and
hereby agrees to the process so served, submits to the jurisdiction, and waives
any and all obligations and protest thereto, any laws to the contrary
notwithstanding.
SECTION 16.10--WAIVER OF CLAIMS
AIRLINE hereby waives any claim against AUTHORITY, and its officers, or
employees for loss of anticipated profits caused by any suit or proceedings
directly or indirectly attacking the validity of this Agreement or any part
thereof, or by any judgment or award in any suit proceeding declaring this
Agreement null, void, or voidable, or delaying the same or any part hereof, from
being carried out.
SECTION 16.11--NOTICES
A. Notices required herein shall be given by registered or certified
mail by depositing the same in the United States Mail in the continental United
States, postage prepaid. Any such notice so mailed shall be presumed to have
been received by the addressee 72 hours after deposit of same in the mail or
upon actual receipt if sent by courier or overnight delivery. Either party shall
have the right, by giving written notice to the other, to change the address at
-56-
62
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
which its notices are to be received. Until any such change is made, notices
shall be delivered as follows:
1) AUTHORITY:
Director of Airports
Charleston County Aviation Authority
Charleston International Airport
0000 Xxxxxxxxxxxxx Xxxxxxxxx, #000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
2) AIRLINE:
PRESIDENT & VICE PRESIDENT, AIRLINE SERVICES
--------------------------------------------
AIR SOUTH AIRLINES, INC.
--------------------------------------------
0000 XXXXXXX XXXX
--------------------------------------------
XXXX XXXXXXXX, XX 00000
--------------------------------------------
FAX (000) 000-0000
--------------------------------------------
B. If notice is given in any other Manner or at any other place, it
will also be given at the place and in the manner specified above.
SECTION 16.12--HEADINGS
The headings of the several articles and sections of this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit, or describe the scope or intent of any provisions of this Agreement and
shall not be construed to affect in any manner the terms and provisions hereof
or the interpretation or construction hereof.
SECTION 16.13--SEVERABILITY
If one or more clauses, sections, or provision of this Agreement shall be
held to be unlawful, invalid, or unenforceable, it is agreed that the remainder
of the Agreement shall not be affected thereby.
SECTION 16.14--INCORPORATION OF EXHIBITS
All exhibits referred to in this Agreement are intended to be and hereby
are a part of this Agreement.
-57-
63
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
SECTION 16.15--INCORPORATION OF REQUIRED PROVISIONS
The parties incorporate herein by this reference all provisions lawfully
required to be contained herein by any governmental body or agency.
SECTION 16.16--CONSENT OF THE PARTIES
Where this Agreement requires the consent of one or more parties, the
AIRLINE and the AUTHORITY agree that such consent shall not be unreasonably
withheld.
SECTION 16.17--NONLIABILITY OF AGENTS AND EMPLOYEES
No member, officer, agent, director, or employee of AUTHORITY or AIRLINE
shall be charged personally or held contractually liable by or to the other
party under term or provision of this Agreement or because of any breach thereof
or because of its or their execution or attempted execution.
SECTION 16.18--SUCCESSORS AND ASSIGNS BOUND
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto.
SECTION 16.19--TIME OF ESSENCE
Time is expressed to be of the essence of this Agreement.
SECTION 16.20--PRUDENT OPERATION
AUTHORITY hereby covenants to manage the Airport System in a prudent and
reasonable manner.
SECTION 16.21--QUIET ENJOYMENT
A. AUTHORITY agrees that, so long as AIRLINE's payment of rentals,
fees and charges is timely and AIRLINE keeps all covenants and agreements
contained herein, AIRLINE shall peaceably have and enjoy its Assigned Area and
all rights, privileges and
-58-
64
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
licenses of the Airport, its appurtenances and facilities granted herein,
subject to the terms and conditions herein contained.
B. Consistent with the nature of AIRLINE's business, AIRLINE agrees
that the occupancy of its Assigned Area will be lawful and quiet and that it
will not knowingly use or permit the use of Assigned Area in any way that would
violate the terms of this Agreement, create a nuisance, or disturb other tenants
or the general public. AIRLINE shall be responsible for the activity of its
officers, employees, agents, and others under its control with respect to this
provision.
SECTION 16.22--ENTIRE AGREEMENT
This Agreement, together with all exhibits attached hereto, constitutes
the entire Agreement between the parties hereto, and all other representations
or statements heretofore made, verbal or written, are merged herein, and this
Agreement may be amended only in writing, and executed by duly authorized
representatives of the parties hereto.
END OF ARTICLE 16
-59-
65
CHARLESTON COUP AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ATTEST: XXXXXXXXXX XXXXXX XXXXXXX XXXXXXXX
XXXXXXXXXX COUNTY AVIATION AUTHORITY
/s/ Xxxxxx Xxxx By: /s/ Waring X. Xxxx, Xx.
----------------------- -----------------------------
Waring X. Xxxx, Xx., Chairman
/s/ Xxxx Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------- -----------------------------
Xxxxx X. Xxxxxxxx, Secretary
AIRLINE: AIR SOUTH AIRLINES, INC.
Xxxxxx X. Xxxxxx
/s/ By: /s/ Xxxxxx X. Xxxxxx
----------------------- -----------------------------
Title: Vice President
--------------------------
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66
CERTIFICATE OF SECRETARY OF
AIR SOUTH AIRLINES, INC.
I, Xxxxx X. Xxxxxxxx hereby certify that, (1) I am the duly authorized Secretary
of Air South Airlines, Inc., a Delaware Corporation, charged with keeping the
records and seal of said corporation, (2) that the President or any Vice
president is authorize to execute contracts, performance bonds, labor and
materials bonds on behalf of the Corporation, and (3) that Xxxxxx X. Xxxxxx is a
Vice President of the Corporation.
WITNESS by my hand as Secretary, and the seal of the Corporation this 10th day
of
January, 1997.
/s/ Xxxxx X. Xxxxxxxx (L.S.)
----------------------------
Xxxxx X. Xxxxxxxx
Sworn to before me this 10th
day of January, 1997.
/s/
--------------------------------
Notary Public for South Carolina
My Commission Expires: 11-16-98
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67
CHARLESTON COUNTY AVIATION AUTHORITY
SCHEDULED AIRLINE OPERATING AGREEMENT
AND TERMINAL BUILDING LEASE
CHARLESTON COUNTY AVIATION AUTHORITY
OPINION OF ATTORNEY
This is to certify that I have examined the attached Contract Documents,
that after examination I am of the opinion that such Documents appear to conform
to the Laws of the State of South Carolina, that the execution of the Contract
Documents appear to be in due and proper form, and that the representatives of
the respective contracting parties appear to have full power and authority to
execute such Contract and Bonds on behalf of the respective contracting parties
and that it appears the foregoing agreements constitute valid and binding
obligations on such parties.
/s/ Xxxxx Xxxxxxx Xxxxxxxxx
------------------------------
XXXXX XXXXXXX XXXXXXXXX
Attorney for Charleston County
Aviation Authority
Charleston, South Carolina
This 19 day of March 1997.
-62-
68
[MAP]
69
EXHIBIT B - AIR SOUTH
PREMISES IN TERMINAL BUILDING
[MAP OF CHARLESTON INTERNATIONAL AIRPORT
CHARLESTON, SOUTH CAROLINA]
70
INTERIM EXHIBIT B - AIR SOUTH
PREMISES IN NEW TERMINAL BUILDING FOLLOWING DBO
[MAP OF CHARLESTON INTERNATIONAL AIRPORT
CHARLESTON, SOUTH CAROLINA]
71
EXHIBIT C
PREFERENTIAL USE GATE ASSIGNMENT PLAN
[MAP OF CHARLESTON INTERNATIONAL AIRPORT
CHARLESTON, SOUTH CAROLINA]
72
EXHIBIT D
EXAMPLE OF
CALCULATION OF AIRLINE RENTALS, FEES & CHARGES
FOR FISCAL YEAR ENDING JUNE 30, 1997
FY-97
BUDGET
------
TERMINAL BUILDING AREA RENTALS & CHARGES
----------------------------------------
Terminal Building Area Operations and
Maintenance Expenses $4,426,214
Revenue Bond Debt Service Allocable to
Terminal Building Area 2,191,018
Deposit to Equipment & Capital Outlay Fund 88,800
Amortization of Authority-Funded
Improvements 138,623
General Obligation Bond Debt Service
Allocable to Xxxxxxxx Xxxxxxxx Xxxx 000,000
----------
Total Terminal Building Area Cost 7,711,012
Less: (1) Designated Revenue to be Credited
Non-Military Concession Fees 2,739,515
Other Terminal Building Rentals 160,794
Telecommunications System Charge 55,500
Allocable Interest Income 96,000
----------
3,051,809
(2) Military Charter Facilities
Revenue Credit 1,048,398
----------
Net Terminal Building Area Cost 3,610,805
Signatory Airline Leased Space
(square feet) 66,551
Average Rental Rate (per square foot) 54.26
Signatory Airline Rental Requirement 3,610,805
==========
73
FY-97
BUDGET
------
APRON FEES
----------
Apron & Taxiway Area Operation and
Maintenance Expenses $ 76,646
Revenue Bond Debt Service Allocable to
Apron & Taxiway Area 0
Deposit to Equipment & Capital Outlay Fund 0
Amortization of Authority-Funded
Improvements 126,505
General Obligation Bond Debt Service
Allocable to Apron & Taxiway Area 160,227
----------
Total Apron & Taxiway Area Cost 363,378
Less: (1) Apron & Taxiway Area Revenues
from Sources Other than Signatory
Airline & MAC Charter Carriers 5,000
(2) Apron & Taxiway Revenues from
AMC Charter Carriers 4,000
----------
Net Apron & Taxiway Area Cost 354,378
Fixed Apron Fee (50%) 177,189
Number of Preferentially Assigned Gates 8
----------
Fixed Apron Fee Rate (per gate per year) 22,149
Fixed Apron Fee Rate (per gate per month) 1,846
==========
Variable Apron Fee (50%) 177,189
Takeoff Weights (1,000-pound units):
Signatory Airlines 1,500,000
Variable Apron Fee Rate (per 1,000 pounds) $ 0.12
==========
74
FY-97
BUDGET
------
LANDING FEES
------------
Landing Fee Rate (per 1,000-pound unit of
takeoff weight) $ 0.20
Signatory Airline Takeoff Weight 1,500,000
----------
Signatory Airline Landing Fees 300,000
==========
MILITARY CHARTER FACILITIES REVENUE CREDIT
Terminal Building Area Cost $7,711,012
Divided by Total Enclosed Building Area
(square feet) 278,162
Rate per square foot 27.72
Military Charter Facilities Space 37,821
Military Charter Facilities Revenue Credit $1,048,398
==========
75
EXHIBIT "E"
MAINTENANCE RESPONSIBILITY CHART
TERMINAL BUILDING
CHARLESTON INTERNATIONL AIRPORT
====================================================================================================================================
MECHANICAL/
PLUMBING ELECTRICAL
====================================================================================================================================
Sanitary Systems Storm Sewer Fixture Maintenance HVAC System Electrical System Fixture Relamping
- - - A A L
- - - A A L
- - - A A A
A A L A A L
- - - A A A
A A L A A L
- - - A A L
- - - A A L
- - - A A A
- - - A A A
- - - A A A
- - - - A A
- - - - A A
====================================================================================================================================
EQUIPMENT PAVEMENT
====================================================================================================================================
Tenant Equipment Authority Equipment Snow and Ice Removal Grease/Oil Removal Maintenance and Repair Striping
L A - - - -
L A - - - -
- A - - - -
L A - - - -
L A - - - -
L A - - - -
L A - - - -
L A - - - -
- A - - - -
- A - - - -
- A - - - -
L - L L A L
L A - - A -
====================================================================================================================================
JANITORIAL
====================================================================================================================================
Interior Cleaning Interior Window Washing Exterior Window Washing Garbarge to Central Location Exterior Cleaning
L L A L A
L L A L A
A - A A A
L L A L A
A A A A A
L L A L A
L L A L A
L L A L A
A A A A A
A A A A A
A A - A -
- - - - L
A A A A A
