Exhibit 10.66
**********
PORT COLUMBUS INTERNATIONAL AIRPORT
SIGNATORY AIRLINE OPERATING AGREEMENT
AND LEASE
**********
PORT COLUMBUS INTERNATIONAL AIRPORT
SIGNATORY AIRLINE OPERATING AGREEMENT AND LEASE
TABLE OF CONTENTS
Page
ARTICLE I ...................................................................... 2
SECTION 101. MEANINGS AND CONSTRUCTION .................................. 2
SECTION 102. INTERPRETATION ............................................. 11
SECTION 103. INCORPORATION OF EXHIBITS .................................. 12
SECTION 104. AFFILIATED AIRLINES ........................................ 12
ARTICLE II ..................................................................... 13
SECTION 201. TERM ....................................................... 13
SECTION 202. HOLDING OVER ............................................... 13
ARTICLE III .................................................................... 14
SECTION 301. USE OF AIRPORT ............................................. 14
SECTION 302. RESTRICTIONS ON EXERCISE OF RIGHTS AND RESERVATION OF RIGHTS 20
SECTION 303. INSURANCE RISKS ............................................ 22
SECTION 304. HAZARDS ................................................... 22
SECTION 305. AIRPORT SECURITY ........................................... 23
SECTION 306. IMPACT ON AIRPORT CERTIFICATION ............................ 23
SECTION 307. AIRLINE SUMMARY ............................................ 24
ARTICLE IV ..................................................................... 25
SECTION 401. GENERAL .................................................... 25
SECTION 402. ASSIGNED FACILITIES ........................................ 25
SECTION 403. RELOCATION OF PREFERENTIAL USE PREMISES .................... 25
SECTION 404. ACCOMMODATION THROUGH AUTHORITY-CONTROLLED FACILITIES ...... 25
SECTION 405. ACCOMMODATION ON PREFERENTIAL USE PREMISES ................. 25
SECTION 406. SHORT-TERM ACCOMMODATION ................................... 26
SECTION 407. LONG-TERM ACCOMMODATION OF OTHER AIRLINES .................. 27
SECTION 408. CONSOLIDATION OF OPERATION ................................. 28
SECTION 409. RELINQUISHMENT OF ABANDONED SPACE .......................... 29
ARTICLE V ...................................................................... 30
SECTION 501. CALCULATION OF RENTALS, FEES, AND CHARGES .................. 30
SECTION 502. CALCULATION OF TERMINAL BUILDING RENTAL RATES .............. 30
SECTION 503. CALCULATION OF LANDING FEE RATE ............................ 31
SECTION 504. CALCULATION OF APRON FEE RATES ............................. 32
SECTION 505. CALCULATION OF XXX REQUIREMENT ............................. 33
SECTION 506. TERMINAL BUILDING RENTALS .................................. 33
SECTION 507. LANDING FEES ............................................... 34
SECTION 508. APRON FEE .................................................. 34
SECTION 509. XXX FEE .................................................... 34
SECTION 510. TAXES, ASSESSMENTS, LICENSES, AND PERMIT FEES .............. 34
SECTION 511. ELECTRIC SERVICE ........................................... 35
SECTION 512. SUPPLEMENTAL CHARGES ....................................... 36
SECTION 513. GENERAL AIRLINE CREDIT ..................................... 36
SECTION 514. PFCs TO BE HELD IN TRUST FOR THE AUTHORITY ................. 37
SECTION 515. ADJUSTMENT OF CERTAIN FEES DURING THE RATE PERIOD .......... 37
ARTICLE VI ..................................................................... 39
SECTION 601. MANNER OF PAYMENT .......................................... 39
SECTION 602. AIRLINE FINANCIAL REPORTS .................................. 39
SECTION 603. FAILURE TO REPORT .......................................... 41
SECTION 604. AIRLINE AND AUTHORITY RECORDS AND AUDIT .................... 42
SECTION 605. SECURITY DEPOSITS .......................................... 44
SECTION 606. RIGHT TO CONTEST; NO ABATEMENT OR SET-OFF .................. 45
SECTION 607. NO OTHER FEES AND CHARGES .................................. 45
SECTION 608. COVENANT NOT TO GRANT MORE FAVORABLE RENTALS, FEES AND CHARGES 45
ARTICLE VII .................................................................... 46
SECTION 701. EXHIBIT G .................................................. 46
SECTION 702. MAINTENANCE BY THE AUTHORITY ............................... 46
SECTION 703. MAINTENANCE BY AIRLINE ..................................... 46
SECTION 704. AUTHORITY RIGHT TO ENTER AND ACT ........................... 48
SECTION 705. AUTHORITY OBLIGATIONS ...................................... 49
ARTICLE VIII ................................................................... 50
SECTION 801. ALTERATIONS AND IMPROVEMENTS BY AIRLINE .................... 50
SECTION 802. NONDISTURBANCE OF AIRPORT TENANTS AND OPERATIONS ........... 51
SECTION 803. CONSTRUCTION AND AIRPORT EXPANSION ......................... 51
ARTICLE IX ..................................................................... 52
SECTION 901. RULES AND REGULATIONS ...................................... 52
SECTION 902. OBSERVANCE AND COMPLIANCE WITH LAWS ........................ 52
SECTION 903. COMPLIANCE WITH RULE 15C2-12 OF THE SECURITIES EXCHANGE ACT 52
SECTION 904. COMPLIANCE WITH ENVIRONMENTAL LAWS ......................... 52
SECTION 905. COMPLIANCE WITH 14C.F.R.382.40 ............................. 56
SECTION 906. NONDISCRIMINATION .......................................... 56
SECTION 907. RIGHT TO DEVELOP OR IMPROVE THE AIRPORT .................... 57
ARTICLE X ...................................................................... 58
SECTION 1001. CONSULTATION FOR CAPITAL EXPENDITURES ...................... 58
SECTION 1002. DEFERRAL ................................................... 58
SECTION 1003. COST OVERRUNS .............................................. 59
ARTICLE XI ..................................................................... 60
SECTION 1101. INSURANCE .................................................. 60
SECTION 1102. DAMAGE TO PREMISES ......................................... 63
SECTION 1103. INDEMNIFICATION ............................................ 65
SECTION 1104. AUTHORITY NOT LIABLE ....................................... 67
ARTICLE XII .................................................................... 69
SECTION 1201. AIRLINE MERGERS AND CONSOLIDATIONS ........................ 69
SECTION 1202. ASSIGNMENT OR SUBLETTING ................................... 69
SECTION 1203. AUTHORITY APPROVAL OF ASSIGNMENTS .......................... 69
SECTION 1204. AUTHORITY APPROVAL OF SUBLEASES ............................ 70
SECTION 1205. METHOD OF OBTAINING APPROVAL ............................... 70
SECTION 1206. ADMINISTRATIVE CHARGE ...................................... 70
SECTION 1207. AIRLINE TO REMAIN LIABLE ................................... 70
ARTICLE XIII ................................................................... 71
SECTION 1301. EVENTS OF DEFAULT .......................................... 71
SECTION 1302. TERMINATION BY THE AUTHORITY ............................... 72
SECTION 1303. CHANGE OF LEASE TERM ....................................... 74
SECTION 1304. TERMINATION BY AIRLINE ..................................... 74
ARTICLE XIV .................................................................... 75
SECTION 1401. SURRENDER OF PREMISES 75
ARTICLE XV ..................................................................... 76
SECTION 1501. RELATIONSHIP OF PARTIES .................................... 76
SECTION 1502. AMENDMENT .................................................. 76
SECTION 1503. SUBORDINATION TO BOND ORDINANCE ........................... 76
SECTION 1504. CERTIFICATE IN CONNECTION WITH ISSUANCE OF B0NDS ........... 76
SECTION 1505. TO THIRD PARTY BENEFICIARIES ............................... 77
SECTION 1506. COUNTERPARTS ............................................... 77
SECTION 1507. EXHIBITS ................................................... 77
SECTION 1508. SURVIVAL OF WARRANTIES ..................................... 77
SECTION 1509. QUIET ENJOYMENT ............................................ 77
SECTION 1510. NO PERSONAL LIABILITY ...................................... 77
SECTION 1511. AGREEMENTS WITH THE UNITED STATES .......................... 78
SECTION 1512. GOVERNING LAW .............................................. 78
SECTION 1513. NOTICES .................................................... 78
SECTION 1514. ENTIRE AGREEMENT ........................................... 79
SECTION 1515. FORCE MAJEURE .............................................. 79
SECTION 1516. INVALID PROVISIONS ......................................... 80
SECTION 1517. NO WAIVER .................................................. 80
SECTION 1518. CONSTRUCTION OF AGREEMENT .................................. 80
SECTION 1519. AVIATION RIGHTS ........................................... 80
SECTION 1520. SECURITY ................................................... 80
SECTION 1521. TIMING ..................................................... 81
SECTION 1522. REPRESENTATIVES ............................................ 81
SECTION 1523. APPROVALS .................................................. 81
SECTION 1524. PROHIBITON AGAINST EXCLUSIVE RIGHTS ........................ 81
SECTION 1525. SUCCESSORS AND ASSIGNS ......................................... 81
SECTION 1526. AUTHORITY TO EXECUTE ........................................... 82
EXHIBIT A AUTHORITY COST CENTERS ............................................... A-1
OVERVIEW ..................................................................... A-1
DIRECT COST CENTERS .......................................................... A-1
INDIRECT COST CENTERS ........................................................ A-3
COST CENTER ADDITIONS AND SUBSTITUTIONS ...................................... A-4
EXHIBIT B AIRLINE'S TERMINAL BUILDING LEASED PREMISES .......................... B-1
EXHIBIT C AIRLINE'S ASSIGNED APRON ............................................. C-1
EXHIBIT D SUMMARY OF TERMINAL BUILDING RENTABLE SPACE .......................... D-1
EXHIBIT E DIFFERENTIAL TERMINAL BUILDING RENTAL RATES .......................... E-1
EXHIBIT F APPROVED CAPITAL PROJECTS ............................................ F-1
EXHIBIT G MAINTENANCE RESPONSIBILITY ........................................... G-1
EXHIBIT H AFFILIATED AIRLINES .................................................. H-1
EXHIBIT 1 SUMMARY OF CHARGES AND SUPPLEMENT .................................... I-1
PORT COLUMBUS INTERNATIONAL AIRPORT
SIGNATORY AIRLINE OPERATING AGREEMENT AND LEASE
THIS
SIGNATORY AIRLINE OPERATING AGREEMENT AND LEASE, made and entered into
as of the 1st day of January 2000, by and between the COLUMBUS MUNICIPAL.
AIRPORT AUTHORITY, a Port Authority organized and existing under the laws of the
State of
Ohio (the "AUTHORITY"), and the Airline named on the signature page
hereof ("AIRLINE"),
WITNESSETH: THAT,
WHEREAS, the AUTHORITY is the operator of the Port Columbus International
Airport located in Columbus,
Ohio (the "AIRPORT"); and
WHEREAS, AIRLINE is engaged in the business of air transportation; and
WHEREAS, AIRLINE and the AUTHORITY desire to enter into this Agreement for
the lease of terminal space at the AIRPORT and the granting to AIRLINE of
certain rights and privileges for use of the AIRPORT, all as hereinafter
provided; and
WHEREAS, the AUTHORITY has passed Resolution No. 51-99 on November 23,
1999, authorizing the execution of this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained, and the rentals, fees and charges to he paid by
AIRLINE, it is agreed and understood by and between the AUTHORITY and AIRLINE as
follows:
1
ARTICLE I
DEFINITIONS
SECTION 101. MEANINGS AND CONSTRUCTION
Except as otherwise clearly indicated by the context, the words and phrases
defined in this section shall have the following meanings when used elsewhere in
this Agreement.
"ADMINISTRATIVE SPACE" means that space within the Terminal Building which
is depicted as administrative space in Exhibit D and such additions thereto and
deletions therefrom as may occur from time-to-time during the term of this
Agreement.
"AFFILIATE OR AFFILIATED AIRLINE" means (i) any wholly owned-subsidiary or
majority-owned Airline; (ii) any regional Airline operating under the name of
the AIRLINE; or (iii) any Airline participating in a major marketing alliance
with AIRLINE; in any case only if such airline is named on Exhibit H, as may be
revised from time to time or otherwise deemed to be an Affiliated Airline under
this agreement.
"AGREEMENT' means this
Signatory Airline Operating Agreement and Lease.
"AIR TRANSPORTATION BUSINESS" means the carriage by aircraft of persons or
property as a common carrier for compensation or hire, or the carriage of mail,
by aircraft, in commerce, as defined in the Federal Aviation Act of 1958, as
amended.
"AIRFIELD AREA COST CENTER" means the Cost Center of the same name
described in Exhibit A.
"AIRFIELD AREA COST CENTER NON-AIRLINE REVENUE" means aviation fuel flowage
fees, Non-Signatory Airline landing fees, Airfield Area Cost Center aircraft
parking fees and such other Airfield Area Cost Center revenue other than
Signatory Airline and Signatory Cargo Carrier Landing Fees, reported and
classified as such under the AUTHORITY's cost accounting system from time to
time.
"AIRFIELD AREA REQUIREMENT" means the requirement established pursuant to
Section 503.
"AIRFIELD OPERATIONS AREA OR AOA" means those areas of the AIRPORT used for
the landing, take-off, and movement about the AIRPORT of aircraft, as the same
now exist or as the same hereafter are added to, modified, changed, or
developed.
"AIRLINE" means the Airline named on the signature page hereof together
with its Affiliated Airlines operating at the AIRPORT which are not Signatory
Airlines.
"AIRLINES" means AIRLINE and all other certificated operators of aircraft
providing scheduled or charter air transportation of passengers, property, or
mail, or any combination thereof, by air to and from the AIRPORT.
"AIRPORT" means Port Columbus International Airport, together with any
additions thereto, or improvements or enlargements thereof; hereafter made.
2
"AIRPORTS" means the Port Columbus International Airport and Xxxxxx Field
as they presently exist and as they are hereafter modified or expanded and
such other airport or airports as are hereafter acquired or established by the
AUTHORITY.
"AMORTIZATION PERIOD" means that period determined in accordance with
Generally Accepted Accounting Principles for the amortization of a Capital
Project subject to Authority Equity Recovery under the terms of this Agreement
or any other capital project for which the cost is not expensed or funded from
bond proceeds. Notwithstanding the foregoing, the Amortization Period for land
shall he 30 years.
"ANNUAL CAPITAL ADJUSTMENT FACTOR" means the change, if any, reported over
the most recently reported twelve-month period in the Consumer Price Index /All
Urban Consumers (CPI) published by the United States Department of Labor, Bureau
of Labor Statistics (1982-84=100) or its designated replacement index.
"ANNUAL CAPITAL OUTLAY" means each individual improvement constructed or
asset purchased or acquired from the AUTHORITY's operating funds and designated
by Authority as an Annual Capital Outlay for any Rate Period, provided, however,
that any such improvement made or asset purchased for the Airfield Area Cost
Center or Apron Cost Center shall not qualify as an Annual Capital Outlay if the
Net Capital Cost of the same is in excess of $250,000, as adjusted by the Annual
Capital Adjustment Factor.
"APPLIED PFCS" means PFC revenue approved for use by the FAA and applied as
a credit against Debt Service, the Coverage Requirement, or another element of
the Authority Requirement during any Rate Period.
"APRON" means those paved areas contiguous to the Terminal Building,
designated as such on Exhibit C, as the same now exist or as the same
hereafter are added to, modified, changed, or developed.
"APRON COST CENTER" means the Cost Center of the same name as described in
Exhibit A.
"APRON FEE RATES" means the Apron Fee Rates established pursuant to Section
504.
"APRON FEES" means the Apron Fees calculated pursuant to Section 508.
"APRON REQUIREMENT" means the requirement established pursuant to Section
504.
"ASSIGNED APRON" means that portion of the AIRPORT Apron assigned to
AIRLINE as shown and depicted on Exhibit C.
"AUTHORITY" means the Columbus Municipal Airport Authority.
"AUTHORITY EQUITY RECOVERY" means the amortization charge, calculated in
substantially equal annual installments over its Amortization Period, to recover
that portion of the Net Capital Cost, plus implicit interest thereon, of any
Capital Project paid for from the AUTHORITY's accumulated surpluses not derived
from Airline's Rentals, Fees, and Charges. Implicit interest shall be computed
at the rate reported in the Revenue Bond Index for January of the Rate Period
3
said Capital Project is placed in service and implicit interest for the
construction period shall he capitalized.
"AUTHORITY REQUIREMENT" means, for any Rate Period, the AUTHORITY's
estimate of the following: (1) Operating Expenses; (2) the Net Capital Cost of
Annual Capital Outlays; (3) City Payments; (4) Debt Service; (5) the Coverage
Requirement; (6) Authority Equity Recovery; (7) those amounts required to be
deposited during any Rate Period to any fund created pursuant to the terms of
the Master Trust Indenture or any other Trust Indenture; (8) the net amount of
any judgment or settlement arising out of or as a result of the ownership,
operation, or maintenance of the Airports or any AUTHORITY-owned or operated
airport-related facility payable by the AUTHORITY during said Rate Period,
including, but not limited to, the amount of any such judgment or settlement
arising out of or as a result of any claim, action, proceeding or suit alleging
a taking of property or an interest in property without just or adequate
compensation, trespass, nuisance, property damage, personal injury, or any other
claim, action, proceeding, or suit based upon or relative to any environmental
impact resulting from the use of the Airports for the landing and taking off of
aircraft; (9) any and all other sums, amounts, charges, or requirements of the
AUTHORITY to be recovered, charged, set aside, expensed, or accounted for during
such Rate Period under the AUTHORITY's accounting system or this Agreement;
provided, however, that the Authority Requirement shall not include any amounts
included in (1) through (9) chargeable to a Special Facility or a Tenant
Improvement.
"AUTHORITY'S RULES REGULATIONS" means those reasonable and
nondiscriminatory rules and regulations including operating directives
promulgated by the AUTHORITY from time to time. Except to the extent necessary
to comply with mandatory federal rules and regulations, such regulations shall
not increase Signatory Airlines' Financial obligations to the AUTHORITY.
"XXXXXX FIELD" means the airport and Cost Center of the same name
described in Exhibit A.
"BOND OR BONDS" means all notes, bonds, or other obligations issued by the
Authority.
"CAPITAL COST" means the total cost of any Capital Project or any Annual
Capital Outlay capitalized on the property, plant, and equipment records of the
AUTHORITY, including the cost of design, engineering, and construction
management and construction-related inspection services.
"CAPITAL PROJECT" means each individual improvement constructed or asset
purchased or acquired by the AUTHORITY other than improvements or assets funded
and designated as an Annual Capital Outlay.
"CARGO USE AGREEMENT" means an agreement between the AUTHORITY and any one
of the Airlines conducting an Air Transportation Business at the AIRPORT for the
commercial transportation by air of cargo and mail, but not persons, which
authorizes said Airline to use the AIRPORT for such purpose, including the
facilities of the Airfield Operation Area and such other areas required to
support its cargo operations, but does not authorize the use of the Terminal
Building or the Apron.
"CITY" means the City Of Columbus,
Ohio.
4
"CITY PAYMENTS" means the amounts due the City from the AUTHORITY pursuant
to the City Use Agreement including City Use Payments as defined in the Master
Trust Indenture which are payable on a parity basis with the Bonds issued under
the Master Trust Indenture, plus any amount charged as part of the Authority
Requirement in any Rate Period by the AUTHORITY to recover the principal plus
implicit interest on amounts paid by the AUTHORITY to the City for acquisition
of the Airports or other City assets made in compliance with all applicable
federal regulations, laws and grant assurances.
"CITY USE AGREEMENT" means the Airport Operation and Use Agreement between
the City and the AUTHORITY made and entered into as of September 23, 1991, and
effective November 10, 1991, as amended or supplemented from time to time.
"COMMON USE CHARGES FORMULA" means that formula which prorates twenty
percent (20%) of the cost or expense of Common Use Premises or a common service
provided to the Signatory Airlines equally among those Signatory Airlines then
having a Variable Charges Percentage in excess of one percent (1%), and eighty
percent (80%) of the cost or expense among the Signatory Airlines based on each
of the Airlines' Variable Charges Percentage.
"COMMON USE PREMISES" means those premises in or about the Terminal
Building which AIRLINE or its nominee uses on a common use basis with other
Airlines, as depicted on Exhibit D.
"COST CENTERS" means the cost centers used by the AUTHORITY in allocating
and accounting for revenues, expenses, and other elements of the Authority
Requirement as described in Exhibit A.
"COVERAGE REQUIREMENT" means twenty-five percent of Debt Service Charges as
defined in the Master Trust Indenture and such other amounts as may be required
at any time to satisfy a rate covenant in any Trust Indenture.
"DEBT SERVICE" means, for any period of time or on any date, Debt Service
Charges and Subordinated Debt Service Charges as defined in the Master Trust
Indenture and the principal of (including the compounded accreted amount of any
capital appreciation bonds then payable), whether at stated maturity, by
mandatory sinking fund redemption or otherwise, and interest and any premium due
on Bonds during that period or payable on that date, as the case may be, and
any letter of credit bank reimbursement obligations or municipal bond insurance
obligations, sinking fund payments, call premiums, payments required by forward
purchase agreements, remarketing fees, rebate payments, swap payments, trustee's
fees, paying agent fees, and any other charges and fees payable in connection
with Bonds.
"DEFERRABLE CAPITAL EXPENDITURE" means a capital expenditure directly
allocated to the Airfield Area Cost Center or the Apron Cost Center other than
(a) Annual Capital Outlays to be included in the Airfield Area Requirement or
the Apron Requirement as provided in this Agreement or (b) expenditures made by
the AUTHORITY under any of the following conditions:
(i) Expenditures for Capital Projects that are listed on Exhibit F attached
hereto, provided, however, that the incremental Net Capital Cost of any
such Capital Project shall constitute a Deferrable Capital Expenditure if
the Net Capital Cost for such Capital Project exceeds the listed Net
Capital Cost as
5
adjusted by the Annual Capital Adjustment Factor by more than ten percent
(10%) and is not otherwise excepted under this definition;
(ii) Other expenditures for Capital Projects (not otherwise excepted under
this definition) whose Net Capital Costs in the aggregate during any Rate
Period are not greater than the sum of the Consultation Minimum and
Consultation Carryforward, as defined below, for that Rate Period. The
"Consultation Minimum" for each Rate Period shall be $2.5 million, as
adjusted annually by the Annual Capital Adjustment Factor. The
"Consultation Carryforward" for each Rate Period shall be the unused
Consultation Minimum from the prior Rate Period with expenditures in the
current Rate Period applied to the prior Rate Period's Carryforward first.
Notwithstanding the above, the adjusted Consultation Minimum plus the
Consultation Carryforward shall net exceed $5 million, adjusted in
accordance with the Annual Capital Adjustment Factor, in any single Rate
Period;
(iii) For emergency or airfield safety purposes;
(iv) To comply with any applicable law, rule, regulation, policy, or order
of any federal, state, or local agency or court or any federal or state
grant agreement or airport certification requirement;
(v) To remedy any significant environmental problems at the Airport:
(vi) To repair any casualty damage to AIRPORT property to the extent not
covered by insurance; or
(vii) To fund costs or improvements, including the associated costs
therefor, incurred to settle lawful claims, satisfy judgments, or comply
with judicial orders against the AUTHORITY by reason of its ownership,
operation, maintenance, development, improvement (including design and
construction), or use of the AIRPORT.
"DEPLANED PASSENGERS" means all arriving passengers of AIRLINE and of all
other Airlines deplaning at the Terminal Building, including all on-line and
off-line deplaning transferring passengers, but excluding through passengers.
"DIFFERENTIAL TERMINAL BUILDING RENTAL RATES" means those Terminal Building
Rental Rates established pursuant to Section 502(D) and calculated in accordance
with Exhibit E.
"DIRECT COST CENTERS" means those Cost Centers described as such in Exhibit
A.
"ENPLANED PASSENGERS" means all originating and on-line and off-line
transfer passengers of AIRLINE and of all other Airlines enplaning at the
Terminal Building.
"ENVIRONMENTAL LAWS" means every applicable law, ordinance, rule,
regulation, permit or permit condition, order, or directive regulating, relating
to, or imposing liability standards of conduct, or any agency, court or body of
the federal government, any state or any political subdivision thereof,
exercising executive, legislative, judicial, regulatory, or administrative
6
functions relating to environmental matters, including, without limitation,
those relating to fines, orders, injunctions, penalties, damages, contribution,
cost recovery compensation, losses, or injuries resulting from the release or
threatened release of Hazardous Materials and to the generation, use, storage,
transportation, or disposal of Hazardous Materials.
"ENVIRONMENTAL PERMITS" means any and all permits, licenses, approvals,
authorizations, consents, or registrations required by applicable Environmental
Laws, whether federal. State or local, which pertain to the production, use,
treatment, generation, transportation, processing, handling, disposal, or
storage of Hazardous Materials.
"EVENT OF DEFAULT" means an Event of Default as defined in Section 1301.
"EXECUTIVE DIRECTOR" means the Executive Director of the AUTHORITY or the
person performing the functions of that office, as authorized by the Chairman of
the Board, or that person authorized by the Executive Director to act for or on
behalf of the Executive Director with respect to any particular matter under
this Agreement.
"FEDERAL AVIATION ADMINISTRATION OR FAA" means the Federal Aviation
Administration created under the Federal Aviation Act of 1958, as amended, or
any successor agency thereto.
"GENERAL AIRLINE CREDIT" means for the applicable Rate Period the amount
set forth in Section 513(B).
"GRANTS-IN-AID" means the Federal Airport Improvement Program (AIP) funds,
funds from any successor Federal program to AIP, State of
Ohio, Division of
Aviation, Department of Transportation funds and funds from any successor
Ohio
Department of Transportation program made available to AUTHORITY for capital
projects related to the Airports.
"HAZARDOUS MATERIALS" means friable asbestos or asbestos-containing
materials, polychlorinated biphenyls (PCBs), petroleum, or crude oil or any
fraction thereof, natural gas, source material, special nuclear material, and
byproduct materials regulated under Environmental Laws, pesticides regulated
under Environmental Laws, and any hazardous waste, toxic, or dangerous
substance or related material, including any material defined or treated as a
hazardous substance, hazardous waste, toxic substance, or contaminant (or
comparable term) under any of the Environmental Laws.
"INDIRECT COST CENTERS" means those Cost Centers described as such in
Exhibit A.
"LANDING FEE RATE" means the Landing Fee Rate established pursuant to
Section 503, rounded up to the next whole cent.
"LANDING FEES" means Landing Fees calculated pursuant to Section 507.
"LEASED PREMISES" means, at any time, for AIRLINE, those areas and
facilities in the Terminal Building which, pursuant to Article II are leased to
AIRLINE for its preferential, shared, or common use and occupancy as depicted in
Exhibit B and Assigned Apron as depicted in Exhibit "C".
7
"XXX FEE" means the fee calculated pursuant to Section 509 to reimburse the
AUTHORITY for Operating Expenses incurred by the AUTHORITY for providing law
enforcement officer support under Section 107.15 of the Federal Aviation
Regulations to the Airlines' pre-boarding passenger screening checkpoint
established pursuant to Section 108 of the Federal Aviation Regulations or any
successor charge thereto.
"XXX REQUIREMENT" means the requirement established pursuant to Section
505.
"MAJORITY IN INTEREST" or "MII" means
(i) With respect to any Airfield Area Cost Center matter, at least fifty
percent (50%) in number of all Signatory Airlines, and Signatory Cargo
Carriers at the AIRPORT which together landed more than sixty-six percent
(66%) of the Signatory Airlines', and Signatory Cargo Carriers' Revenue
Landed Weight at the AIRPORT' during the immediately preceding Rate Period,
and
(ii) With respect to any matters concerning the Apron Cost Center, at least
fifty percent (50%) in number of all Signatory Airlines at the AIRPORT
which together landed more than sixty-six percent (66%) of the Signatory
Airlines' Revenue Landed Weight at the AIRPORT during the immediately
preceding Rate Period and which together lease at least sixty-six percent
(66%) of the total square footage of Apron leased to the Signatory
Airlines.
No Airline shall be deemed to be a Signatory Airline or a Signatory Cargo
Carrier for the purpose of this definition so long as an Event of Default,
including bankruptcy, with respect to such Airline has occurred and is
continuing or if such Airline is no longer operating at the AIRPORT.
"MASTER TRUST INDENTURE" means the Master Trust Indenture dated as of July
1, 1994, between the AUTHORITY and the Trustee, including the General Bond
Resolution, as amended or supplemented from time to time.
"MAXIMUM CERTIFICATED GROSS LANDING WEIGHT" means, for any aircraft
operated by an Airline, the maximum certified gross landing weight in one
thousand pound units of such aircraft as certified by the FAA and as listed in
the Airline's FAA approved Flight Operations Manual.
"NET AIRFIELD AREA REQUIREMENT" means the requirement established pursuant
to Section 503.
"NET APRON REQUIREMENT" means the requirement established pursuant to
Section 504.
"NET CAPITAL COST" means the Capital Cost of any Capital Project or Annual
Capital Outlay less amounts financed from the proceeds of: (i) Grants-in-Aid;
(ii) PFCs; (iii) Bonds for which the debt service will not be paid from
Rentals, Fees, and Charges; (iv) Bonds for which the debt service is to be paid
for by PFCs, insurance, or any amount financed by AUTHORITY funds not derived
from Rentals, Fees, and Charges.
"NET TERMINAL BUILDING REQUIREMENT" means the requirement established
pursuant to Section 502.
8
"NON-SIGNATORY AIRLINE" means an Airline using the AIRPORT which is not a
Signatory Airline.
"OPERATING EXPENSES" OR "O&M EXPENSES" means, for any Rate Period, all
expenses, incurred by the AUTHORITY for such Rate Period, in providing for the
administration, operation, maintenance, and management of the AUTHORITY and its
Airports, including, without limitation, the performance by AUTHORITY of any of
its obligations related thereto as set forth is this Agreement. Operating
Expenses shall not include depreciation charges as reflected in the AUTHORITY's
annual financial statements.
"ORIGINATING ENPLANED PASSENGERS" means all passengers of AIRLINE and of
all other Airlines enplaning at the Terminal Building except enplaning on-line
and off-line transfer passengers.
"PASSENGER FACILITY CHARGE OR PFC" means moneys collected by AUTHORITY from
charges imposed by the AUTHORITY pursuant to 49 U.S.C. Section 40117, as amended
or supplemented from time to time, and 14 C.F.R. Part 158, as amended or
supplemented from time to time.
"PASSENGER HOLDROOM OR HOLDROOMS" means that space within the Terminal
Building used to enplane and deplane passengers of AIRLINE or other Airlines.
"PREFERENTIAL USE PREMISES" means those Leased Premises within the
Terminal Building, including Shared Use Premises, for which AIRLINE holds a
priority over others as to use.
"RATE PERIOD" means each twelve-month period comprising the AUTHORITY's
fiscal year, initially a calendar year.
"REIMBURSEMENTS" means those charges payable by AIRLINE and other Airlines
which directly reimburse the AUTHORITY for the cost of utilities, real estate
taxes, or any other direct service provided by the AUTHORITY, and which are
applied as credits against or deductions from the Authority Requirement, or any
element thereof, in determining Rentals, Fees, and Charges under Articles V and
VI.
"RENTABLE SPACE" means that space within the Terminal Building that is
constructed, identified and segregated as space to be leased by commercial
tenants and depicted as rentable space in Exhibit D and such additions thereto
and deletions therefrom as may occur from time-to-time during the term of this
Agreement. Any space not already included in Rentable Space which is then leased
to a commercial tenant such that the space produces revenue shall be added to
Rentable Space.
"RENTALS FEES, AND CHARGES" means for any Rate Period the rentals, fees,
and charges payable by AIRLINE pursuant to Articles V and VI,
"REVENUE AIRCRAFT ARRIVAL" means each landing of an aircraft at the
AIRPORT, by a Signatory Airline or Signatory Cargo Carrier, other than a landing
of an aircraft which departs from the AIRPORT and which returns, without having
landed at another airport, for meteorological. mechanical, safety, or any other
emergency purpose, and training flights except
9
to the extent that such training flights exceed five percent (5%) of such
Airline's scheduled flights for the month.
"REVENUE BOND INDEX" means the 25 Bond Revenue Index yield rate as
published in the Bond Buyer.
"REVENUE LANDED WEIGHT" means, for each Rate Period, the sum of the
products determined by multiplying each Revenue Aircraft Arrival by AIRLINE,
other Signatory Airlines and the Signatory Cargo Carriers by the applicable
Maximum Certificated Gross Landing Weight of the aircraft making said Revenue
Aircraft Arrival.
"SECURITY DEPOSIT" means an irrevocable letter of credit or other security
acceptable to AUTHORITY provided pursuant to Section 605.
"SHARED USE CHARGES FORMULA" means that formula which prorates the cost or
expense of the Shared Use Premises described in Exhibit B or a service provided
to two or more Signatory Airlines as the circumstances dictate and the AUTHORITY
and such Signatory Airlines agree.
"SHARED USE PREMISES" means those Preferential Use Premises which AIRLINE
leases and uses on a shared use basis with other Signatory Airlines, as depicted
on Exhibit B, for which all Signatory Airlines under such leasehold an equal
priority right of use over others.
"SIGNATORY AIRLINE" means at any time, each one of the Airlines which then
has executed a Signatory Airline Operating Agreement and Terminal Building Lease
under substantially the same terms and conditions, and with the same expiration
date as this Agreement in effect with the AUTHORITY or is an Affiliated Airline
of such Airline.
"SIGNATORY CARGO CARRIER" means, at any time, each one of the Airlines
which then has a Cargo Use Agreement with the same expiration date as this
Agreement in effect with the AUTHORITY.
"SPECIAL FACILITY OR FACILITIES" means any AUTHORITY-owned facility
acquired or constructed for the benefit or use of any person or persons and the
costs of construction and acquisition of which are paid for (a) by the obligor
under a Special Facility agreement, (b) from the proceeds of Special Facility
revenue bonds, or (c) both.
"SUPPLEMENTAL CHARGES" means for any Rate Period those fees and charges
payable by AIRLINE pursuant to Section 512.
"SUPPLEMENTAL TRUST INDENTURE" means any supplemental trust indenture
entered into pursuant to the Master Trust Indenture and which shall include any
related Series Resolution, as amended or supplemented from time to time.
"TENANT IMPROVEMENTS" means those capital improvements or capital equipment
constructed or installed by the AUTHORITY for an Airline or another tenant under
an agreement in which said Airline or tenant agrees to reimburse the AUTHORITY
for costs related thereto.
"TERMINAL BUILDING" means the main terminal buildings and concourses of the
AIRPORT, including all supporting and connecting structures and facilities and
all appurtenances
10
to said buildings and facilities, as the same now exist or as the same hereafter
may be added to, modified, changed, or developed and said term shall also
include any additional new terminal structure hereinafter constructed by the
AUTHORITY at the AIRPORT.
"TERMINAL BUILDING COST CENTER" means the Cost Center of the same name as
described in Exhibit A.
"TERMINAL BUILDING RENTAL RATE" means the average Terminal Building Rental
Rate established pursuant to Section 502.
"TERMINAL BUILDING RENTALS" means the Terminal Building Rentals calculated
pursuant to Section 506.
"TERMINAL BUILDING REQUIREMENT " means the requirement established pursuant
to Section 502.
"TRANSFERRED COVERAGE" means the amount of a previous Rate Period's funded
Coverage Requirement carried forward to the subsequent Rate Period by the
AUTHORITY.
"TRUST INDENTURE" means the Master Trust Indenture, all Supplemental Trust
Indentures, and any other trust indenture or AUTHORITY resolution pursuant to
which Net Revenues of the AIRPORT are pledged.
"VARIABLE CHARGES PERCENTAGE" means for each six-month period beginning
January 1st and July 1st of each Rate Period, AIRLINE'S percentage of the total
Originating Enplaned Passengers of all Signatory Airlines at the AIRPORT for the
most recently reported six-month period with such adjustments as appropriate for
commencement or cessation of service by a Signatory Airline.
SECTION 102. INTERPRETATION
(A) References in the text of this Agreement to articles, sections,
paragraphs, or exhibits pertain to articles, sections, or exhibits of this
Agreement and to the same articles, sections, paragraphs, and exhibits of each
other Signatory Airline Operating Agreement and Terminal Building Lease, unless
otherwise specified.
(B) The terms "hereby," "herein," "hereof," "hereto," "hereunder," and any
similar terms used in this Agreement refer to this Agreement.
(C) Words importing persons shall include firms, associations,
partnerships, trusts, corporations, and other legal entities, including public
bodies, as well as natural persons.
(D) Any headings preceding the text of the articles and sections of this
Agreement, and any table of contents or marginal notes appended to copies
hereof, shall be solely for convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction, or
effect.
11
(E) Words importing the singular shall include the plural and vice versa.
Words of the masculine gender shall be deemed to include correlative words of
the feminine and neuter genders.
(F) The term "including" shall be construed to mean "including without
limitation", unless otherwise expressly indicated.
(G) All references to number of days shall mean calendar days.
(H) Words used in the present tense include the future.
SECTION 103. INCORPORATION OF EXHIBITS
The following Exhibits are hereby made a part of this Agreement:
Exhibit A Authority Cost Centers
Exhibit B AIRLINE's Terminal Building Leased Premises
Exhibit C AIRLINE's Assigned Apron
Exhibit D Summary of Terminal Building Rentable Space
Exhibit E Calculations of Differential Terminal Building Rental Rates
Exhibit F Approved Capital Projects
Exhibit G Maintenance Responsibility
Exhibit H Affiliated Airlines
Exhibit I Summary of Charges and Supplement
SECTION 104. AFFILIATED AIRLINES
The AIRLINE executing this Agreement and its Affiliated Airlines shall be
treated as a single entity for purposes of application of all provisions of this
Agreement. All references to AIRLINE and Signatory Airline shall include
Affiliated Airlines unless otherwise expressly stated in this Agreement. The
AIRLINE executing this Agreement shall have the right to add or delete
Affiliated Airlines from time to time by written notice to the AUTHORITY AIRLINE
agrees to notify the AUTHORITY of any airlines affiliated with AIRLINE that
will be operating at the AIRPORT prior to commencement of such service. AIRLINE
acknowledges that any airline affiliated with AIRLINE that is operating at the
AIRPORT and handled by the AIRLINE but not is otherwise a Signatory Airline the
benefit of Signatory Airline status under this Agreement shall be deemed to be
an Affiliated Airline under this Agreement.
12
ARTICLE II
LEASE TERM
SECTION 201. TERM
The term of this Agreement shall commence on January 1, 2000 (the
"Effective Date") and shall expire on December 31, 2004, unless sooner
terminated pursuant to the provisions hereof.
SECTION 202. HOLDING OVER
If AIRLINE shall, with the consent of AUTHORITY, hold over after the
expiration of the term of this Agreement, the resulting tenancy shall, unless
otherwise mutually agreed, be for an indefinite period of time on a
month-to-month basis. During such month-to-month tenancy, AIRLINE shall pay to
AUTHORITY the same rate of rental and landing fees as set forth herein, unless a
different rate shall be agreed upon, and shall be bound by all of the additional
provisions of the Agreement insofar as they may be pertinent.
13
ARTICLE III
AIRLINE RIGHTS, PRIVILEGES, AND LIMITATIONS
SECTION 301. USE OF AIRPORT
Subject to the terms of this Agreement, AIRLINE shall have the right to
conduct its Air Transportation Business at the AIRPORT and to perform the
following operations and functions as are incidental or necessary to the conduct
of such business at the AIRPORT.
(A) USE IN COMMON OF TERMINAL BUILDING. AIRLINE shall have the right to
use, in common with others so authorized, the public areas and public facilities
of the Terminal Building.
(B) USE IN COMMON OF AIRFIELD OPERATIONS AREA AND APRON. AIRLINE shall have
the right to use landing field areas, non-assigned aprons, roadways, runways,
taxiways, runway and taxiway lights, beacons, facilities, equipment,
improvements, services, and other conveniences for flying, landing, taxiing,
servicing, and takeoffs of aircraft.
(C) OPERATION AND MAINTENANCE OF AIRCRAFT AND EQUIPMENT. AIRLINE shall have
the right to conduct routine servicing by AIRLINE, or by its suppliers of
materials or by its furnishers of routine services, of aircraft and other
equipment, operated by AIRLINE or by other Airlines with which AIRLINE has an
approved handling agreement, with fuel, oil, lubricants, line maintenance,
deicing fluids, or other materials or supplies, at its Assigned Aprons or other
aircraft parking positions designated by the AUTHORITY's Rules and Regulations.
AIRLINE shall not perform maintenance and/or repairs on ground support equipment
including, but not limited to, vehicles, baggage carts, power units, and trucks
on the Apron or at any location other than those designated by the AUTHORITY.
AIRLINE shall not do, or permit to be done, at the Apron area any heavy
maintenance (e.g., engine changes, control surface replacements and overhauls)
within areas under AIRLINE's control unless such maintenance is consented to by
the AUTHORITY and suitable, reasonably accessible, space is available for such
purpose.
All storage of oil, lubricants, or other materials or supplies shall be
maintained in accordance with prudent insurance underwriting and safety
standards and in accordance with the AUTHORITY's Rules and Regulations.
Exterior cleaning of aircraft shall be limited to instances when special
advance approval of the time and place of such cleaning is given by the
AUTHORITY.
If, during AIRLINE's servicing of aircraft other than those services that
are normally performed in conjunction with scheduled operations, the AUTHORITY
requires access to one or more of AIRLINE's Assigned Aprons due to an emergency
or for the temporary access by another Airline as provided in Article IV,
AIRLINE shall remove said aircraft from the appropriate Assigned Apron as
quickly as reasonably possible, provided such removal does not interfere with
AIRLINE's own scheduled operation.
(D) PARKING OF AIRCRAFT AND EQUIPMENT OUTSIDE ASSIGNED AREA. Unless
agreement is reached between AIRLINE and another Airline regarding use of
AIRLINE's Assigned Apron, if AIRLINE repeatedly parks or stores any aircraft,
vehicle, or ground-handling equipment outside of the boundary areas of
AIRLINE's Assigned Apron set out in Exhibit C or as painted, striped,
14
or otherwise indicated on the Apron, AIRLINE shall pay to the AUTHORITY
or the impacted Airline, as appropriate, any applicable fee for such parking or
storage.
(E) RAMP SUPPORT. AIRLINE shall have the right to use, subject to
applicable fees and charges, water and electric power, telephone and
preconditioned air systems, and loading bridges, to the extent supplied by the
AUTHORITY, at or adjacent to its Leased Premises: and, to the extent not
supplied by the AUTHORITY to purchase, install, use, and maintain, at AIRLINE's
Assigned Aprons, loading bridges and mobile stair devices for the loading,
unloading, and general servicing of AIRLINE's aircraft, auxiliary power systems,
air start systems, preconditioned air systems, and other miscellaneous aircraft
and aircraft-related support equipment and facilities.
(F) PERSONNEL. AIRLINE shall have the right to hire and train at the
AIRPORT personnel in the employ of or to be employed by AIRLINE.
(G) CUSTOMER SERVICE. AIRLINE recognizes the importance of the community
and the traveling public to the AIRPORT and will provide such services, as is
AIRLINE'S normal practice at similar airports, such as skycaps, wheel chair and
cart services to AIRLINE's passengers.
(H) TESTING FLIGHTS. AIRLINE shall have the right to test aircraft and
other equipment owned or operated by AIRLINE; provided that such testing is
incidental to the use of the AIRPORT in the operation by AIRLINE of its Air
Transportation Business and will not hamper or interfere with use of the AIRPORT
and its facilities by others entitled to use of the same. The AUTHORITY reserves
the right to restrict any testing operations it deems to interfere with the safe
and efficient use of the AIRPORT and its facilities or to create excessive noise
as determined by the AUTHORITY.
(I) SALE, DISPOSAL, OR EXCHANGE OF EQUIPMENT AND PRODUCTS. AIRLINE shall
have the right to sell, dispose, or exchange aircraft, engines, accessories,
gasoline, oil, grease, lubricants, fuel, deicing fluid, and other equipment of
AIRLINE, or supplies including, without limitation, any propellant now or
hereafter used in aircraft or other equipment of AIRLINE; provided that such
rights shall not be construed as authorizing the conduct of a separate business
by AIRLINE, but shall only permit AIRLINE to perform such functions as are
incidental to its conduct of its Air Transportation Business. AIRLINE shall not
routinely sell of exchange gasoline, fuels, or propellants except to an
Affiliate Airline or a company with which AIRLINE has a handling agreement, or
for use in aircraft of others which are being used solely in the operations of
AIRLINE, or except when the particular grade and type of fuel desired by others
is not otherwise available from third-party vendors at the AIRPORT.
(J) LANDING, TAKEOFF PARKING. AIRLINE shall have the right to land, take
off, fly over, taxi, tow, and condition AIRLINE's aircraft and, in areas
designated by the AUTHORITY. AIRLINE shall have the right to park for an
extended period of time, service, deice, load or unload, store, or maintain
AIRLINE's aircraft and support equipment subject to the availability of space,
and subject to reasonable charges; provided, however, AIRLINE shall not
knowingly permit, without the consent of the AUTHORITY, the use of the Airfield
Operations Area or any portion thereof by any aircraft operated or controlled by
AIRLINE which exceeds the design strength or capability of such area as
described in the then-current FAA-approved Airport Layout
15
Plan (ALP) or other engineering evaluations performed subsequent to the
then-current ALP, including the then-current Airport Certification Manual.
(K) LOADING AND UNLOADING. AIRLINE shall have the right to load and unload
persons, cargo, and mail by motor vehicles or other means of conveyance, as
AIRLINE may desire or require in the operation of its Air Transportation
Business, via routes and at locations designated by the AUTHORITY. AIRLINE may
designate the particular carrier or carriers which may transport AIRLINE's
employees, property, and mail to, from, and on the AIRPORT; however, the
AUTHORITY reserves the right to require such carrier or carriers to secure a
permit from and pay any applicable fees to the AUTHORITY to conduct such
activity at the AIRPORT.
(L) ACTIVITIES WITHIN SPACE. AIRLINE shall have the right to conduct the
following activities within its Preferential Use Premises:
(i) AIRLINE shall have the right to install, maintain and operate, in
AIRLINE's Preferential Use Premises, customer relations, security and
waiting room facilities and equipment; reservations offices; administrative
offices; operations offices; lockers, restrooms, and related facilities for
its employees; baggage, cargo, and mail handling and storage facilities and
equipment; provided however, that the particular Preferential Use Premises
are designed to be used for said purpose or said use has been approved, in
writing, by the AUTHORITY.
(ii) AIRLINE shall have the right to install personal property, including
furniture, furnishings, supplies, machinery, and equipment, in AIRLINE's
Preferential Use Premises, as AIRLINE may deem necessary or prudent for the
operation of its Air Transportation Business. Title to such personal
property shall remain with AIRLINE, subject to the provisions of this
Agreement.
(iii) AIRLINE shall have the right to construct modifications, finishes,
and improvements in its nonpublic Preferential Use Premises as AIRLINE may
deem necessary or prudent for the operation of its Air Transportation
Business, subject to the approval and permitting requirement provisions of
Article VIII.
(M) ACTIVITIES WITHIN AIRLINE CLUBS. AIRLINE shall have the right to
furnish and operate a preferred customer, "VIP" club or similar private club. In
addition to its per square foot rentals, AIRLINE shall pay a concession fee if
and only if, it provides goods and services for a charge, which concession fee
shall be the applicable concession fee rate for like sales payable on the
AIRPORT; provided that no such payment shall be required with respect to items
obtained from concessionaires already obligated to make such payments to the
AUTHORITY with respect to such obtained items. Notwithstanding the above,
membership fees and sale of consumables purchased from Airport concessionaires,
shall be exempt from such a concession fee. Further, such preferred customer or
"VIP" club may be shared with one or more other Airlines; provided that the
rights of all the Airlines using the club terminate when this Agreement
terminates, unless otherwise permitted under separate agreement.
(N) HANDLING ARRANGEMENTS. AIRLINE shall have the right to enter into or
conduct the following handling arrangements as part of its Air Transportation
Business at the AIRPORT:
16
(i) The rights and privileges granted to AIRLINE pursuant to this Article
III may be exercised on behalf of AIRLINE by other Signatory Airlines or
contractors authorized by the AUTHORITY to provide such services at the
AIRPORT, subject to all fees and charges as may be applicable to the
activities undertaken. Notwithstanding the above, AIRLINE's handling
agreements with affiliate Airlines or a wholly-owned subsidiary of AIRLINE
or parent company shall be exempt from such fees.
(ii) AIRLINE may exercise on behalf of any other Signatory Airlines any of
the rights granted AIRLINE herein, so long as AIRLINE is concurrently
exercising those same rights in the operation of AIRLINE's own Air
Transportation Business at the AIRPORT, subject to the provisions of
Article X and Paragraph (R) of this Section, and the payment of fees and
charges for such activities.
(O) SIGNAGE. AIRLINE shall have the right to install and operate AIRLINE
ticket and check-in counter back wall treatments and identifying signs in its
Preferential Use Premises, subject to the prior approval of the AUTHORITY, and
provided that such signs shall be: (a) substantially uniform in size, type, and
location with those of other Signatory Airlines; (b) harmonious and in keeping
with the pattern and decor of the Terminal Building; and (c) consistent with the
AUTHORITY's graphics standards and standards for mounting.
(P) USE OF PUBLIC AREAS. AIRLINE shall have the right of free ingress to
and egress from the AIRPORT including its Leased Premises and the public areas
and public facilities of the Terminal Building, for AIRLINE's employees, agents,
passengers, contractors, guests, patrons, invitees, licensees, suppliers of
materials and providers of service, and its or their equipment, vehicles,
machinery, and other property; provided, however, that the foregoing shall not
preclude the AUTHORITY from (a) subjecting such persons to the AUTHORITY's Rules
and Regulations, (b) requiring such persons to enter into an agreement with the
AUTHORITY when such access is required on art ongoing basis, or (c) imposing
any charge, permit or license fee for the right to do business at the Airport.
(Q) ACCESS TO RESTRICTED AREAS. AIRLINE agrees that all of its tenants,
subtenants, patrons, invitees, agents, employees, servants, or independent
contractors must be authorized by the AUTHORITY to enter restricted areas as
defined by the AUTHORITY or provided escort in accordance with AUTHORITY's
security plan. AIRLINE agrees that no person authorized to enter a restricted
area by virtue of this Agreement shall permit any person who is not otherwise
authorized by AUTHORITY to enter a restricted area unless such unauthorized
person is, at all times while in the restricted area, in the company of an
authorized person. Such right shall be subject to F.A.R. Part 107. All means of
access to restricted areas provided by the AUTHORITY shall be utilized in
common with such other persons as the AUTHORITY may authorize or permit, and all
such users of access shall be subject to and comply with all applicable laws and
ordinances whether federal, slate, or local.
(R) RIGHT TO PURCHASE SERVICES AND PRODUCTS. Airline shall have the right
to purchase or contract for the purchase of the following services and products
subject to the limitations contained herein:
17
(i) AIRLINE may purchase or otherwise obtain products of any nature,
including, but not limited to, aircraft, engines, accessories, gasoline,
oil, grease, lubricants, fuel, propellants, passenger supplies and other
materials, equipment, supplies, articles, and goods, used or acquired by
AIRLINE in connection with or incidental to AIRLINE's Air Transportation
Business at the AIRPORT from any person or company operating on the AIRPORT
with a valid permit from the AUTHORITY
(ii) AIRLINE shall have the right to contract with a third party or Airline
owned ground handler to provide to it or to perform for it any of the
services or functions which it is entitled to perform under this Agreement,
provided that such third party must maintain any permits and pay all fees
required by the AUTHORITY. The contractual relationship between any third
party and AIRLINE shall not affect in any way the fulfillment of AIRLINE's
obligations, including those of insurance and indemnification for
activities, under this Agreement.
(iii) Any contractors or agents performing services to Airlines at the
Airport shall conform to applicable performance standards, lease
requirements, and AUTHORITY's Rules and Regulations, including any permit
requirement or payment of fees required by the AUTHORITY. AIRLINE may also
be subject to the payment of fees for provision of services to other
Airlines except services provided by AIRLINE to subsidiaries or affiliate
Airlines.
(S) TICKETING ACTIVITIES. AIRLINE shall have the right to handle
reservations and the ticketing, including electronic ticketing, billing and
manifesting of passengers, baggage, property, cargo, and mail; load planning;
and conduct of activities relating to flight operations, dispatch, weather,
storage of supplies, crew ready room, locker rooms, and rest rooms.
(T) BAGGAGE BELTS. AIRLINE shall have the right to use baggage make-up
belts within ticket counter areas leased to other Signatory Airlines if such
belts are required to access baggage make-up areas from ticket counter areas
leased to AIRLINE.
(U) COMMUNICATIONS AND WEATHER EQUIPMENT, FIDS AND PA SYSTEM. AIRLINE shall
have the right to use the following communications equipment, flight information
displays, and public address systems in conjunction with the conduct of its Air
Transportation Business:
(i) Subject to the prior approval of the AUTHORITY and conditions stated
below, AIRLINE shall have the right to install, maintain, and operate,
alone or in conjunction with any other Signatory Airline or Airlines, or
through a nominee, such radio, communications, meteorological, aerial
navigation, and computer equipment, facilities and associated wiring, as
may be necessary for the conduct of AIRLINE's Air Transportation Business
at the AIRPORT, in of on its Preferential Use Premises, and at other
locations at the AIRPORT as may be approved by the AUTHORITY. The location
of such equipment and facilities, method of installation, and type of
equipment shall be subject to the prior approval of the AUTHORITY. The
AUTHORITY shall have the right to charge a fee, surcharge, or rental charge
for any location outside of Preferential Use Premises and shall be entitled
to any revenues generated directly from the
18
operation of such equipment. The AUTHORITY may disapprove or require
modification, removal, or relocation of such equipment if it interferes
with other communication, meteorological, or aerial navigation systems
operated by the AUTHORITY, other tenants, or governmental agencies.
(ii) AIRLINE shall provide electronic flight arrival and departure
information through AUTHORITY-installed systems and shall cooperate with
thee AUTHORITY's installation and maintenance of centralized and remote
flight information displays.
(iii) AIRLINE shall have the right to use, in common with others so
authorized, the public address system serving the Terminal Building.
AIRLINE shall not install, cause to be installed, or use any other
public address system at the Terminal Building without the prior approval
of the AUTHORITY.
(V) SECURITY. AIRLINE shall have the right directly or in conjunction with
other Signatory Airlines or through a nominee, to erect, maintain, and station
security devices and to conduct a security check operation of passengers,
baggage and packages in Preferential Use Premises and in designated Common Use
Areas; provided, however, that the manner of such installation and the location
of equipment shall be subject to the approval of the AUTHORITY. Such service
shall be in compliance with all FAA standards. Unless circumstances dictate
otherwise, AIRLINE agrees that the Part 108 security checkpoint will open to all
ticketed and non-ticketed patrons approximately one (1) hour prior to the first
scheduled departure and close no sooner than one-half hour after the last
arrival.
(W) FOOD & BEVERAGE. AIRLINE shall have the following rights to prepare,
package, and/or distribute food and beverages with respect to the conduct of its
Air Transportation Business at the AIRPORT:
(i) AIRLINE shall have the right to purchase, prepare, package and/or
distribute food and beverages to be consumed on aircraft operated by
AIRLINE or an Affiliated Airline without paying a fee. If AIRLINE provides
in-flight food and beverage preparation services to other Airlines other
than Affiliates, then AIRLINE shall pay a concession fee. The concession
fee to be paid by AIRLINE shall be the applicable concession fee rate for
like sales payable on the AIRPORT.
(ii) AIRLINE shall have the right to purchase prepared food and beverages
for consumption by passengers and crews oil AIRLINE's aircraft and in
AIRLINE's "VIP" club, if any; provided, however, if AIRLINE purchases
catering, including beverages and complimentary packages of snack food to
be consumed oil AIRLINE's aircraft from an Off-Airport caterer for delivery
of prepared food and/or beverages to AIRLINE on the AIRPORT, said caterer
will be required to have a contract with or permit from the AUTHORITY and
to pay a fee to the AUTHORITY at a rate equal to the rate paid by in-flight
food catering concessionaires located on the AIRPORT.
(iii) AIRLINE shall have the right to distribute food and/or beverages to
passengers at no cost in the event of major delays or other emergencies.
19
AIRLINE shall also have the right to distribute food and/or beverages at no
cost to the public in Passenger Holdrooms subject to 24-hour advance notice
to the AUTHORITY; such distribution may not exceed 8 days (inclusive of
partial days of distribution) per year, without the written consent of the
AUTHORITY, and must be in connection with holidays and promotional events.
(iv) AIRLINE shall have the right to install soft drink vending machines
and snack vending machines in its non-publicly accessible Preferential Use
Premises for the sole use of AIRLINE's employees, contractors, and agents.
Vending machines shall not be within the view of the general public and all
machine locations arc subject to the prior approval of the AUTHORITY.
(X) EMPLOYEE PARKING. The AUTHORITY shall designate parking areas at the
AIRPORT available to AIRLINE's employees while at work at the AIRPORT, in common
with other AIRPORT tenants subject to the payment of such fees as the AUTHORITY
shall determine which shall not be in excess of the amount needed to recover the
costs of providing such parking and related services. The AUTHORITY shall have
the right to relocate or otherwise change the location of such parking areas as
needed.
(Y) TECHNOLOGICAL ADVANCES. It is understood and agreed that, during the
term of this Agreement, various technological advances may occur that would
improve the efficient handling of passengers, baggage, and cargo in and about
the AIRPORT and the Signatory Airlines' use of anti operations at the AIRPORT,
including share([ or common usage of AIRPORT facilities and the use of common
use terminal equipment. In such event, the AUTHORITY and AIRLINE agree to
consult as to the applicability of such technological advances to the AIRPORT
and the efficient use of facilities if required to implement them.
SECTION 302. RESTRICTIONS ON EXERCISE OF RIGHTS AND RESERVATION OF RIGHTS TO
AUTHORITY
The rights established in this Article III shall not be exercised so as to
interfere with the AUTHORITY's operation of the AIRPORT' for the benefit of all
aircraft operators using the AIRPORT and subject at all time to the restrictions
herein and reservation of rights by AUTHORITY.
(A) NO INTERFERENCE WITH OPERATIONS. If at any time the AUTHORITY shall
determine that the AIRLINE or its contractors exercising the rights and
privileges granted to AIRLINE pursuant to this Article III are exercising such
rights and privileges (a) in a manner which interferes with the operation or
maintenance of the AIRPORT; (b) in a manner which adversely affects the health
or safety of the public or other users of the AIRPORT; or (c) in a manner which
fails to comply with the AUTHORITY's Rules and Regulations or terms of this
Agreement, the AUTHORITY shall notify AIRLINE of such determination including
the specific reasons therefore. AIRLINE shall promptly commence and diligently
pursue action necessary to correct the conditions or actions specified in such
notice. if such conditions or actions are not, in the opinion of the AUTHORITY,
promptly corrected after receipt of such notice or if such conditions or actions
required corrective action over a period of time, and AIRLINE has not, in the
reasonable opinion of the AUTHORITY, promptly commenced and diligently pursued
all such corrective action, then upon 10 days written notice from the AUTHORITY
to AIRLINE, the AUTHORITY may suspend said contractor's access to the AIRPORT.
Notwithstanding the
20
foregoing provision, the AUTHORITY shall have the right, upon notice to AIRLINE,
to immediately suspend operations of the AIRLINE or of said contractors in the
event that it deems such action necessary to protect the health or safety of the
public or other users of the AIRPORT or in emergency situations.
(B) INTEGRATION WITH SYSTEMS. AIRLINE shall not knowingly do, or permit to
be done, anything that may interfere with the effectiveness or accessibility of
the drainage, sewerage. water, communications, heating or ventilation, air
conditioning, natural gas, sprinkler, alarm or fire protection systems, fire
hydrants and hoses, or any other part of the utility, electrical, or other
systems installed or located from time to time at the AIRPORT.
(C) RIGHT TO DESIGNATE LOCATION. The AUTHORITY reserves the right to
designate the locations within which all of the activities authorized under this
Agreement shall be conducted.
(D) ACCESS. The AUTHORITY may, from time to time, temporarily or
permanently close or restrict roadways, taxiways, taxi lanes, runways, apron
areas, doorways, and any other area at the AIRPORT; provided, however, that,
unless an emergency situation exists, to the extent that the AUTHORITY deems
it practical, AIRLINE shall be notified with regard to such closings in order to
minimize the disruption of services being provided. The AUTHORITY shall have
the right at any time or times to relocate, reconstruct, change, alter, or
modify any such means of access provided for pursuant to this Agreement or
otherwise, either temporarily or permanently; provided that reasonable notice to
AIRLINE and to the extent reasonably practicable a reasonably convenient and
adequate means of access, ingress, and egress shall exist or be provided in lieu
thereof.
(E) ALL OTHER RIGHTS. Any and all rights and privileges not specifically
granted to AIRLINE for its use of and operations at the AIRPORT pursuant to this
Agreement are hereby reserved for and to the AUTHORITY.
(F) STRICT CONSTRUCTION OF RIGHTS. The rights granted to AIRLINE under this
Agreement may be exercised by AIRLINE only to the extent such rights are
necessary or incidental to the conduct by AIRLINE of its Air Transportation
Business at the AIRPORT.
(G) TELECOMMUNICATION ANTI DATA NETWORKING INFRASTRUCTURE. The AUTHORITY
has the right to act as the exclusive: provider of public telecommunications
services and public data networking infrastructure at the AIRPORT. The AUTHORITY
shall have the sole right to determine the location of and install or cause to
be installed all public telephones, public telefax, and other public
telecommunications devices and conduit in any part of the AIRPORT, provided that
doing so does not (a) unreasonably interfere with AIRLINE's operations
authorized hereunder or (b) substantially diminish the square footage contained
in or the functionality of AIRLINE's Preferential Use Premises. The AUTHORITY
shall be entitled to reasonable access to AIRLINE's Leased Premises to install
or service such devices. The AUTHORITY shall be entitled to all income generated
by such telephones and devices and shall have the right to collect reasonable
and non-discriminatory charges fir access to the telecommunications/data
networking infrastructure except for systems or components which are unique to a
particular airline.
(H) INFORMATIONAL DEVICES. The AUTHORITY reserves the right to install or
cause to be installed informational devices, in all public accessible areas of
the Terminal Building
21
provided that such installation shall not unreasonably interfere with the
operations of AIRLINE authorized hereunder. AUTHORITY shall be entitled to
reasonable access upon AIRLINE's Leased Premises to install or service such
devices. The AUTHORITY shall be entitled to all income generated by such
devices.
(I) BAGGAGE BELTS. In addition to those rights granted in Article IV, the
AUTHORITY reserves the right to grant to other Airlines the right to use
outbound baggage systems used by AIRLINE only if such system is required to
access baggage make-up areas. If another airline is granted the right to use a
portion of AIRLINE's owned baggage belt, AIRLINE shall be entitled to recover a
proportionate share of operation and maintenance costs relating to that portion
of the AIRLINE's belt used by the other airline. Allocation of such costs shall
be made on the respective number of departures.
(J) ADDITION OF EQUIPMENT. The AUTHORITY reserves the right to acquire and
install equipment adjacent to AIRLINE's Leased Premises provided such
installation does not unreasonably interfere with AIRLINE's use of such Leased
Premises. Alter consultation with AIRLINE and provided such installation does
not interfere with AIRLINE's use of such Leased Premises, the AUTHORITY may
acquire and install equipment in and upon AIRLINE's Leased Premises. In the
event AIRLINE uses such equipment, AUTHORITY shall have the right to charge
Supplemental Charges for such use. AIRLINE agrees to facilitate the installation
of the equipment, including, upon reasonable notice from the AUTHORITY, the
decommissioning and removal of AIRLINE's equipment, if any, that is to be
replaced by equipment. Notwithstanding the above, AUTHORITY shall have the
right to install any safety or security equipment required within AIRLINE's
Leased Promises.
SECTION 303. INSURANCE RISKS
AIRLINE shall not knowingly do or permit to be done anything, either by act
or failure to act, that shall cause the cancellation or violation of the
provisions, or any part thereof, of any policy of insurance tar the AIRPORT, or
that shall cause a hazardous condition so as to increase the risks normally
attendant upon operations permitted by this Agreement. If such AIRLINE act, or
failure to act, shall cause cancellation of any policy, then AIRLINE shall
immediately, upon notification by AUTHORITY, do whatever shall be necessary to
cause reinstatement of said insurance. Furthermore, if AIRLINE does or permits
to be done any act or fails to do any act which causes an increase in the
AUTHORITY's insurance premiums, AIRLINE shall immediately remedy such actions
and/or pay the increase in premiums, upon notice from AUTHORITY to do so; but
in any event, AIRLINE will hold the AUTHORITY harmless for any expenses and/or
damage resulting from any such action.
SECTION 304. HAZARDS
AIRLINE shall not do, authorize to be done, or fail to do anything at the
AIRPORT which may create or contribute to (a) a nuisance or in any way obstruct
or interfere with rights of others using the AIRPORT or (b) a hazardous
condition so as to increase the risks normally attendant upon operations
permitted by this Agreement.
(A) DEICING. AIRLINE shall store de-icing/anti-icing fluids only in areas
approved by the AUTHORITY. The AUTHORITY reserves the right to assess a
reasonable rental charge for any such storage areas. AIRLINE shall apply
de-icing/anti-icing fluids only in areas
22
designated by the AUTHORITY. Upon the installation of a glycol recapture system,
deicing may only be applied at specified containment areas located at the Apron
areas and at remote aircraft parking areas provided that containment areas have
been installed and no application will be allowed at any other location on
AIRPORT property except as designated by the AUTHORITY. The AUTHORITY will
implement a collection, storage, and disposal system for these fluids. The
AUTHORITY reserves the right to include the costs associated with the operation
and maintenance of this system in Airline Rentals, Fees and Charges or to treat
such costs as a Reimbursement or Supplemental Charge.
(B) FUELING. AIRLINE shall not install fuel storage tanks or pumping
facilities for use in fueling any aircraft at the AIRPORT without prior
approval of the AUTHORITY, in its sole discretion. All refueling trucks must be
approved by the AUTHORITY including their routing and parking.
(C) NOISE ABATEMENT. AIRLINE shall not engage is any activity prohibited by
the AUTHORITY's applicable noise abatement procedures. AUTHORITY reserves the
right to impose fines and penalties in the event of repeated violations of such
procedures.
(D) ENGINE RUNUPS. AIRLINE shall perform aircraft engine runups only at
locations and during time periods approved by the AUTHORITY, in its sole
discretion. The AUTHORITY reserves the right to impose fines and penalties for
failure to abide with the AUTHORITY's Rules and Regulations regarding engine
runups.
(E) DISABLED AIRCRAFT. As soon as possible after release from proper
authorities, AIRLINE shall remove any of its disabled aircraft from the Airfield
Operations Area or aircraft parking positions, shall place any such disabled
aircraft only in such storage areas as may be designated by the AUTHORITY, and
shall store such disabled aircraft only upon such terms and conditions as may be
reasonably established by the AUTHORITY.
SECTION 305. AIRPORT SECURITY
AIRLINE shall not do or permit its agents or employees to do any act or
thing upon the AIRPORT that will be in conflict with or violate the requirements
of the FAA's Federal Aviation Regulations regarding Airport Security or any
successor document, or the AIRPORT's FAA-approved security plan, Any fines
and/or penalties levied against the AUTHORITY for security violations at the
AIRPORT caused by AIRLINE or any of its employees, agents, contractors, or
suppliers riot directly licensed by AUTHORITY while on the AIRPORT for
AIRLINE's, business, shall be immediately due and payable to the AUTHORITY by
AIRLINE.
SECTION 306. IMPACT ON AIRPORT CERTIFICATION
AIRLINE shall not knowingly do or permit its agents, directors, or
employees to do any act or thing upon the AIRPORT that will be in conflict or
violate the requirements of Part 139 of the federal Aviation Regulations,
"Certification and Operations: Land Airports Serving Certain Air Carriers," or
any successor regulation, order, or directive, or jeopardize the AIRPORT's
operating certificate obtained pursuant to such Federal regulations.
23
SECTION 307. AIRLINE SUMMARY
(A) Within 30 days of the date of execution of this Agreement, AIRLINE
shall file an Airline Summary, herein referred to as the "Summary," with the
AUTHORITY. AIRLINE shall provide a written Summary containing the following
information and such additional information as AUTHORITY may reasonably request:
(i) Names, addresses, and telephone numbers of AIRLINE officials
responsible for station operations, flight operations, properties, and
facilities.
(ii) The current and proposed schedules of AIRLINE's flight activity at the
AIRPORT. AIRLINE shall notify the AUTHORITY of schedule changes or the
addition of flights at the AIRPORT prior to or no later than, when the
public announcement thereof is made.
(iii) The description of AIRLINE's fleet and identification of the class of
AIRLINE's aircraft that will serve the AIRPORT. AIRLINE shall provide
reasonable notice of the introduction of an aircraft that is not being
operated by AIRLINE at the AIRPORT on the date of this Agreement.
(iv) The identification of AIRLINE's anticipated facilities requirements at
the AIRPORT.
(B) To the extent possible, AIRLINE shall discuss with the AUTHORITY at the
earliest date possible its consideration of changes to its operations or the
type and series of aircraft used at the AIRPORT (other than equipment
substitution necessitated by occurrences beyond the control of AIRLINE). Upon
AIRLINE's written request, the AUTHORITY shall use its best efforts to keep
nonpublic information furnished by the AIRLINE confidential and shall first
receive AIRLINE's written permission to reveal such information.
(C) For planning purposes, AIRLINE shall, upon request, cooperate as
reasonably possible to furnish to the AUTHORITY any and all pertinent
information regarding AIRLINE's current and future operations (including
forecasts) at the AIRPORT.
(D) Upon the AUTHORITY's written request, AIRLINE shall submit to the
AUTHORITY information regarding the following: projected levels of operations;
planted aircraft parking position utilization; type of aircraft using the
AIRPORT; operation procedures that might have an effect on the AIRPORT (such as
powerout and pushout procedures); deicing procedures and canceled trip
arrangements. The AUTHORITY shall use its best efforts to keep nonpublic
information furnished by the AIRLINE confidential and shall first receive
AIRLINE's written permission to reveal such information.
24
ARTICLE IV
ALLOCATION OF SPACE
SECTION 401. GENERAL
The AUTHORITY intends to maximize the utilization and flexibility of
current AIRPORT facilities to meet changing air service demands.
SECTION 402. ASSIGNED FACILITIES
(A) The AUTHORITY hereby leases to AIRLINE, subject to the provisions of
Article III, the Leased Premises as delineated and shown on Exhibits B & C.
AIRLINE will have priority in using its Preferential Use Premises in accordance
with the provisions of this Agreement
(B) In the event that space changes are made consistent with the provisions
of this Agreement, then revised Exhibits may be substituted for those herein
without the necessity for amendment of this Agreement. In addition, the
Preferential Use Premises may be modified from lime to time by mutual agreement
of the AUTHORITY and AIRLINE.
SECTION 403. RELOCATION OF PREFERENTIAL USE PREMISES
In order to optimize passenger flow at the AIRPORT and maximize the
functionality of the Terminal Building and operations therein, the AUTHORITY
reserves the right to reassign AIRLINE's Preferential Use Premises. Should any
such reassignment occur, AIRLINE shall be assigned new space comparable in size,
quality, finish, and location. Under no condition shall AIRLINE's costs increase
as a result of any such relocation unless AIRLINE requests additional space
and/or space replacement of a classification at higher rental rates concurrent
with such reassignment and AIRLINE shall be reimbursed for its costs incurred as
part of the relocation together with the unamortized cost of its improvements
which cannot be relocated.
SECTION 404. ACCOMMODATION THROUGH AUTHORITY-CONTROLLED FACILITIES
The AUTHORITY may retain under its exclusive control and possession certain
AUTHORITY-Controlled Facilities. Initially, the facilities described and shown
on Exhibit D shall be the AUTHORITY-Controlled Facilities. It is the intent of
the AUTHORITY to use, at its discretion, any AUTHORITY-Controlled Facilities to
accommodate (a) the needs of Signatory Airlines and Non-Signatory Airlines and
(b) airlines not requiring permanent facilities or airlines requiring temporary
accommodation pending allocation of permanent facilities. AIRLINE may request
and the AUTHORITY tray grant to AIRLINE the right to use, in common with other
airlines, designated AUTHORITY-Controlled Facilities subject to the AIRLINE's
payment of any applicable fees.
SECTION 405. ACCOMMODATION ON PREFERENTIAL USE PREMISES
The AUTHORITY may grant other Airlines ("Requesting Airline(s)") the right
of use in common of all or a designated portion of AIRLINE'S Preferential Use
Premises and rights of ingress and egress subject to and in accordance with the
terms and conditions of this Agreement.
25
(A) The right to use AIRLINE's Passenger Holdrooms and Assigned Apron, and
the right to use loading bridges and other appurtenant equipment and associated
support space which are reasonably necessary for the effective use of such
premises, shall be scheduled so as not to interfere with AIRLINE's scheduled
deplaning, enplaning, and servicing activities or those of any Affiliate Airline
or any other Airline that AIRLINE services under any then existing handling
agreement. In scheduling other Airlines, the AUTHORITY shall provide for
departure not less than one-half hour before AIRLINE's next scheduled arrival
and for arrival not sooner than one-half hour after AIRLINE's scheduled
departure. Provided that there is an extended period between aircraft arrival
and departure, the Passenger Holdroom and Assigned Apron shall be available for
other Airlines' use during such inactive period. AIRLINE shall have priority
over other users with respect to overnight parking on its Assigned Apron,
provided that AIRLINE may be required to remove its parked aircraft from the
gate to accommodate use by others in accordance with the provisions of this
Article IV.
(B) With respect to AIRLINE's remaining Preferential Use Premises, AIRLINE
shall accommodate other Airlines during extended periods of non-use as requested
by the AUTHORITY in a reasonable manner.
(C) In no event shall AIRLINE be required to permit others to use systems
proprietary to AIRLINE.
(D) Upon the request of AIRLINE, and provided that such request does not
delay any short-term accommodation, Requesting Airline shall be required to
enter into a written agreement with AIRLINE providing AIRLINE with
indemnification and proof of insurance to AIRLINE and AUTHORITY with terms no
more stringent than those required under Article Xl hereof. In any event,
AUTHORITY shall require that the Requesting Airline sign an agreement to
indemnify the AUTHORITY and AIRLINE in connection with Requesting Airline's use
of AIRLINE's Preferential Use Premises.
SECTION 406. SHORT-TERM ACCOMMODATION
If a Requesting Airline is in aced of space or facilities at the AIRPORT on
an immediate or incidental basis and such need cannot be reasonably met by use
of AUTHORITY-Controlled Facilities, or at facilities riot leased to Signatory
Airlines, AUTHORITY tray grant such Airline the right of use in common of a
designated portion of AIRLINE's Preferential Use Premises and the rights of
ingress and egress when such premises are not in use by AIRLINE for its
scheduled charters or irregular operations, including those of Airlines handled
by AIRLINE, in accordance with the provisions stated herein. AUTHORITY agrees to
provide notice to the AIRLINE of any proposed use of its Preferential Use
Premises by another Airline in advance as reasonably practicable under the
circumstances. Such accommodated Airline shall be responsible for its pro rata
share of Rentals, Fees, and Charges applicable to the Preferential Use Premises
used, (pro rata in accordance with the hours used as compared to the total
operating hours - which shall be 18 hours unless actual usage including XXX is
greater), applicable operation and maintenance expenses, reasonable charges for
the use of property and equipment owned or leased by AIRLINE and used by such
Airline plus an administrative fee not to exceed fifteen percent (15%).
26
SECTION 407. LONG-TERM ACCOMMODATION OF OTHER AIRLINES
(A) If a Requesting Airline, including any Airline seeking to expand its
scheduled service or an Airline seeking to begin scheduled service at the
AIRPORT, is in need of space or facilities at the Airport for an extended
period, to the extent and for so long as such need cannot reasonably be met by
use of facilities not leased to Signatory Airlines, the AUTHORITY on behalf of
the Requesting Airline shall make a written request of all Signatory Airlines
leasing Preferential Use Premises at the AIRPORT for accommodation. The request
shall be made to the person designated to receive notices under this Agreement
with a copy to the local station managers. Such Signatory Airlines shall make
reasonable efforts to accommodate such request and provide a written response to
the Requesting Airline and AUTHORITY within 10 days.
(B) If no Signatory Airline volunteers to accommodate the Requesting
Airline's operational needs or requirements for facilities at reasonable costs
or on other reasonable terms, the AUTHORITY may, upon 30 days written
notification to AIRLINE sent by certified mail, 'rant the Requesting Airline the
right of use in common of a designated portion of AIRLINE's Preferential Use
Premises subject to the conditions contained herein. In making such
determination, the AUTHORITY will be guided by all pertinent factors, including
AIRLINE's present use and planned use for such premises in the 180 days
immediately after the request, the compatibility of such Requesting Airline's
proposed operations and work force including ground-handling operations with
AIRLINE's own operations and work force, and the security of AIRLINE's and the
Requesting Airline's operations. The AUTHORITY may request that planned uses and
requirements be documented and submitted in writing to the AUTHORITY, but the
AUTHORITY shall treat such planned uses and requirements as confidential,
proprietary information.
(C) Prior to the implementation of such accommodation:
(i) Requesting Airline shall pay AIRLINE fur its pro rata share of Rentals,
Fees, and Charges applicable to the Preferential Use Premises used, (pro
rata in accordance with the hours used as comparable to the total operating
hours - which shall be 18 hours unless actual usage including XXX is
greater), applicable operation and maintenance expenses, and reasonable
charges for the use of property and equipment owned or leased by AIRLINE
used by Requesting Airline plus an administrative fee not to exceed fifteen
percent (l5%).
(ii) Prior to implementing a long-term accommodation, AIRLINE may require a
reasonable security deposit from the Requesting Airline not to exceed 3
months estimated payments due AIRLINE under terms and conditions similar to
those set forth in Section 605. In the event of Requesting Airline's
failure to make payment when due, AIRLINE shall have the right to use such
security deposit to pay any amount owed to AIRLINE by the Requesting
Airline then due and payable and/or to apply the proceeds thereof to any
cost or expense or damages incurred by AIRLINE as a result of Requesting
Airline's failure to pay. In the event that any such security deposit or
portion thereof is utilized, as aforesaid. Requesting Airline shall be
required to replenish or provide a renewal or replacement security deposit
within 10 days of being notified to do so by the AIRLINE. At such time as a
Requesting Airline has operated at the AIRPORT for at least 12 consecutive
months and during such period has made timely
27
payment to the AUTHORITY of all Rentals. Fees, and Charges and to the
AIRLINE of payments owed applicable to its use of AIRLINE's Preferential
Use Premises, AIRLINE shall release the Requesting Airline of this security
deposit requirement, refunding any funds or other forms of security held by
AIRLINE, except that if in the reasonable judgment of AIRLINE the
accommodated airline retains some risk of non-payment after the expiration
of the 12 month period, AIRLINE may continue to retain security deposit At
any time during an accommodation, should the Requesting Airline not
continue to satisfy the terms of this Section, AIRLINE may demand a
security deposit from Requesting Airline as described herein. In such
event, Request Airline shall satisfy such demand within 10 days of notice
thereof. In the event Requesting Airline fails to provide a security
deposit, such deposit is insufficient to cover amount due AIRLINE, or
Requesting Airline is in default to AIRLINE on more than one occasion,
AIRLINE may institute termination procedures in the following manner: (a)
AIRLINE shall provide written evidence of the circumstances to the
AUTHORITY and (b) may terminate the Requesting Airline's use of such
premises, including AIRLINE-owned equipment upon 15 days notice to
Requesting Airline.
(iii) Requesting Airline shall make improvements and alterations
necessitatcd by the accommodation, the scope of which shall be approved by
AIRLINE and AUTHORITY.
(iv) Upon the termination of such use in common with AIRLINE, Requesting
Airline shall be responsible for returning all facilities to the condition
received, except normal wear and tear, unless AIRLINE and AUTHORITY release
Requesting Airline from this requirement.
(v) AIRLINE shall have the first right to ground-handle Requesting Airline
if the Requesting Airline does not intend to self-handle or be handled by
Requesting Airline's then existing contracted handler at the AIRPORT,
provided that the handling of Requesting Airline does not interfere with
AIRLINE's operation, including labor work rules, or notably increase risk
to AIRLINE by increasing ramp congestion in or around AIRLINE's Assigned
Apron.
SECTION 408. CONSOLIDATION OF OPERATION
(A) In the event the AUTHORITY has a need for additional facilities for a
Requesting Airline and the AUTHORITY believes that AIRLINE is under-utilizing
its Preferential Use Premises and is able to consolidate its operation without
sacrificing its operational integrity or that of its Affiliated Airline(s) or
those Airlines under contract with AIRLINE for ground-handling services and
being handled in the same facilities, the AUTHORITY may, upon 30 days prior
written notice to AIRLINE, require AIRLINE to consolidate its operations onto
its remaining Preferential Use Premises. In the event that the Requesting
Airline is willing to become a Signatory Airline, AUTHORITY may terminate this
Agreement with respect to and delete from AIRLINE's Preferential Use Premises
such Passenger Holdrooms, associated Assigned Apron and support space as
specified by the AUTHORITY. In the event that the Requesting Airline is not
willing to become a Signatory Airline, Requesting Airline shall be required to
sublease front AIRLINE such specified Passenger Holdrooms and
28
associated Assigned Aprons and associated support space provided by AIRLINE
for Requesting Airline's use. If subsequent to such sublease, AIRLINE desires to
resume use or shared use of such space, AIRLINE shall provide documentation to
AUTHORITY to support such need including; future plans for service. Upon
AIRLINE's submission of such documentation, AUTHORITY shall provide at least 60
days prior written notice to the Requesting Airline and make provisions for
AIRLINE's preferential use of such premises.
(B) For purposes of Section 408(A), under-utilization shall be determined
by the AUTHORITY in its discretion but taking into account AIRLINE's space
requirements to accommodate normal operating procedures of AIRLINE and planned
use by the AIRLINE for such premises in the next 180 days and normal seasonal
variations.
(C) AIRLINE may request the AUTHORITY to reconsider its determination of
under-utilization within 15 business days of receipt of AUTHORITY's written
notice to consolidate. In such event, AIRLINE shall provide such documentation
to show future plans for service and other information requested by the
AUTHORITY. The AUTHORITY shall make the determination, which it believes best
meets its overall goals for the AIRPORT.
(D) If AUTHORITY elects to proceed with the consolidation of space after
such reconsideration, AUTHORITY shall give AIRLINE not less than 30 days notice
to vacate the space in question.
(E) When granted use of space under the provisions of this Section 408, the
Requesting Airline shall have the right in all cases to ground-handle their own
operations or to be handled by the operators of their choice.
(F) In the event there is no Event of Default with respect to AIRLINE,
AUTHORITY shall pay the cost to relocate AIRLINE's equipment, furniture, and
signage plus the unamortized cost of AIRLINE's improvements that cannot be
relocated.
SECTION 409. RELINQUISHMENT OF ABANDONED SPACE
In the event that the AUTHORITY determines that AIRLINE has abandoned or
constructively abandoned all or a portion of its Preferential Use Premises, the
AUTHORITY may, but is not obligated to, upon 30 days' written notice to AIRLINE,
terminate this Agreement with respect to, and delete from AIRLINE's Preferential
Use Premises hereunder, such Passenger hold rooms, Assigned Aprons and
associated support space. For purposes of this Section, abandoned or
constructively abandoned shall be determined by the AUTHORITY in its sole
discretion but taking into account planned use by the AIRLINE for such premises
in the next 180 days and normal seasonal variations. Non use for a period of
more than 30 days shall defacto constitute abandonment. AIRLINE may request the
AUTHORITY to reconsider its determination of abandonment. In such event, AIRLINE
shall provide such documentation to show future plans for service and other
information requested by the AUTHORITY. The AUTHORITY shall make the
determination that it believes best meets its overall goals for the AIRPORT.
29
ARTICLE V
RENTALS, FEES, AND CHARGES
SECTION 501. CALCULATION OF RENTALS, FEES, AND CHARGES
(A) On or before sixty (60) days prior to the end of any Rate Period during
the term of this Agreement, the AUTHORITY shall establish and notify AIRLINE:
and other Signatory Airlines of the Signatory Airlines' Terminal Building Rental
fates, including the schedule of Differential Terminal Building- Rental Rates as
called for in Section 502(F) hereof; the Landing Fee Rate, the Apron Fee Rates,
the XXX Requirement, and other Rentals, Fees, and Charges to be in effect for
the immediately following Rate Period. Said rates arid charges shall be
calculated and set forth in a document prepared by the AUTHORITY. Said document
shall also include a schedule of new Capital Projects to be included in rates
and charges calculations or initiated during the Rate Period which are nut
otherwise covered or excepted by the provisions of Article X. Said schedule
shall include a description, cost estimate and the proposed source of funding
for each Capital Project. The AUTHORITY's notice to AIRLINE and the other
Signatory Airlines shall include notice of the time and place of a meeting, to
be held not earlier than 15 days following the AUTHORITY's notification, to
discuss and answer questions of AIRLINE and other Signatory Airlines concerning
said Rentals. Fees, and Charges and the above referenced Capital Projects.
(B) For each Rate Period covered by this Agreement, the estimated Authority
Requirement shall be calculated, charged, and allocated to the Authority's
Direct and Indirect Cost Centers by the AUTHORITY in accordance with the
AUTHORITY's cost accounting and cost allocation system. The net amount of the
Authority Requirement allocated to each Indirect Cost Center shall be
reallocated to benefiting Direct Cost Centers based on each benefiting Direct
Cost Center's proportionate share of the estimated direct Operating Expenses for
all benefiting Direct Cost Centers
(C) Prior to the reallocation of the Indirect Cost Centers to Direct Cost
Centers, the Authority shall reallocate from the Terminal Building Cost Center
to the Administration Cost Center that portion of tire direct Authority
Requirement allocable to the Administrative space within the Terminal Building.
The amount to be allocated shall be calculated by multiplying the direct
Authority Requirement initially allocated to the Terminal Building Cost Center
by the percentage the square footage of Administrative Space is to the total
square footage of Rentable Space, plus Administrative Space.
SECTION 502. CALCULATION OF TERMINAL BUILDING RENTAL RATES
The AUTHORITY shall calculate the average Terminal Building Rental Rate for
each Rate Period as follows:
(A) The Terminal Building Requirement shall be calculated as the sum of the
Authority Requirement calculated, charged, allocated, and reallocated to the
Terminal Building Cost Center by the AUTHORITY in accordance with Section 501(B)
plus the allocated share of the net Authority Requirement from Indirect Cost
Centers.
30
(B) The Terminal Building Requirement shall be reduced by the sum of the
following estimated amounts to the extent allocated to the Terminal Building
Cost Center to determine the Net Terminal Building Requirement:
(i) Reimbursements
(ii) Applied PFCs; and
(iii) Transferred Coverage.
(C) The average Terminal Building Rental Rate shall be calculated by
dividing the Nut Terminal Building Requirement by the total Rentable Space in
the Terminal Building.
(D) The Signatory Airline Net Terminal Building Requirement shall be
calculated by multiplying the average Terminal Building Rental Rate determined
in 502(C) above by the Signatory Airline Terminal Building Leased Premises,
adding to said amount the deficit, if any, in the Signatory Airline's Rentals,
Fees, and Charges related to the Terminal Building Cost Center from the
preceding Rate Period and then reducing the amount so determined by (i) the
surplus, if any, in the Signatory Airline Rentals, Fees and Charges related to
the Terminal Building Cost Center from the preceding Rate Period and (ii)
revenue from Non-Signatory Airline allocable to Common Use Premises.
(E) The average Signatory Airlines Terminal Building Rental Rate shall be
calculated by dividing the Signatory Airline Net Terminal Building Requirement
by the Signatory Airline Terminal Building Leased Premises.
(F) Based on the average Signatory Airline Terminal Building Rental Rate
calculated in Section 502(E) above, the classifications and weighting factors
for Airline Rentable Space set forth in Exhibit E and the schedule of Signatory
Airline Leased Premises established in Exhibit B. the AUTHORITY shall calculate
a schedule of Differential Terminal Building Rental Rates for said Rate Period
in accordance with the methodology established in Exhibit E.
SECTION 503. CALCULATION OF LANDING FEE RATE
The AUTHORITY shall calculate the Signatory Airline landing Fee Rate for
each Rate Period as follows:
(A) The Airfield Area Requirement shall be calculated as the sum of the
Authority Requirement calculated, charged, and allocated to the Airfield Area
Cost Center by the Authority in accordance with Section 501 (B) above, plus:
(i) The estimated deficit, if any, in the Airfield Area Cost Center from
the preceding Rate Period; and
(ii) The allocated share of the net Authority Requirement from Indirect
Cost Centers.
31
(B) The Airfield Area Requirement shall be reduced by the sum of the
following estimated amounts to the extent allocated to the Airfield Area Cost
Center to determine the Net Airfield Area Requirement-
(i) Non-Signatory Airline landing fees exclusive of Signatory Cargo
Carriers Landing Fees;
(ii) Other Airfield Area Cost Center Non-Airline Revenue;
(iii) XXX Fees;
(iv) Investment Income on the principal and interest account of any debt
service fund allocated to the Airfield Area Cost Center;
(v) Applied PFCs;
(vi) Transferred Coverage; and
(vii) The estimated surplus, if any, in the Airfield Area Cost Center
from the previous Rate Period.
(C) The Signatory Airline Landing Fee Rate shall be that amount determined
by dividing the Net Airfield Area Requirement as determined in Section 503(B)
above by the estimated Maximum Certificated Gross Landed Weight of all Revenue
Aircraft Arrivals by Signatory Airlines and the Signatory Cargo Carriers for
said Rate Period.
SECTION 504. CALCULATION OF APRON FEE RATES
The AUTHORITY shall calculate the Apron Fee Rates for each Rate Period as
follows:
(A) The Apron Requirement shall be calculated as the sum of the Authority
Requirement calculated, charged, and allocated, to the Apron Cost Center by the
AUTHORITY in accordance with Section 501 (B) above; plus
(i) The estimated deficit, if any, in the Apron Cost Center from the
previous Rate Period; and
(ii) The allocated share of the net Authority Requirement from Indirect
Cost Centers.
(B) The Apron Requirement shall be reduced by the sum of the following
estimated amounts to the extent allocated to the Apron Cost Center to determine
the Net Apron Requirement:
(i) Non-Signatory Airline Apron Fees;
(ii) Other Apron Non-Airline Revenue;
(iii) Applied PFCs;
32
(iv) Investment income on the principal and interest account of any debt
service fund allocated to the Apron Cost Center:
(v) Transferred Coverage; and
(vi) The estimated surplus, if any, in the Apron Cost Center from the
previous Rate Period.
(C) Apron Fee Rates shall then be calculated as follows:
(i) Fifty percent (50%) of the Net Apron Requirement shall be divided by
the total square footage of all Signatory Airline Assigned Apron space, as
shown on Exhibit C, to determine the "Apron Square Footage Rate"; and
(ii) Fifty percent (50%) of the Net Apron Requirement shall be divided by
the total of all Signatory Airline Revenue Landed Weight reported during
the previous twelve-month period to determine the "Apron Landed Weight
Rate".
SECTION 505. CALCULATION OF XXX REQUIREMENT
The AUTHORITY shall calculate the XXX Requirement as follows:
(A) The AUTHORITY shall calculate the total personnel cost and other
Operating Expenses, both direct :and indirectly, for the Rate Period chargeable
or allocable to the operation, management, and administration of the AUTHORITY's
Public Safety Officer Division. The amount so determined hereinafter being
referred to as the "Public Safety Officer Cost" for said Rate Period.
(B) The AUTHORITY shall then estimate the percentage of Public Safety
Officer Cost for that Rate Period applicable to Public Safely Officers deployed
in providing XXX Support to the Airlines under F.A.R. Part 108, "XXX support
percentage."
(C) The AUTHORITY shall then determine the XXX Requirement for said Rate
Period which shall be the product of the Public Safety Officer Cost determined
in Section 505(A) and the XXX Support Percentage determined in Section 505(B).
SECTION 506. TERMINAL BUILDING RENTALS
In accordance with Section 601 of this Agreement, AIRLINE shall pay to the
AUTHORITY annual rentals for its Leased Premises for each Rate Period as
follows:
(A) For its Leased Premises shown on Exhibit B, AIRLINE shall pay the
amount which is the product of the square footage of said Leased Premises and
the applicable Differential Terminal Building Rental Rates for said Rate Period
determined in accordance with Section 502, hereof, and Exhibit E.
33
(B) For its use of the Shared Use Premises shown on Exhibit B, AIRLINE
shall pay the amount determined by applying the applicable Shared Use Charges
Formula to the Terminal Building Rental for said Shared Use Premises (the
product of the applicable Differential Terminal Building Rental Rate for said
Rate Period and the square footage of said Shared Use Premises).
(C) For its use of the Common Use Premises shown on Exhibit B, AIRLINE
shall pay the amount determined by applying the Common Use Charges Formula to
the Terminal Building Rental for said Common Use Premises (the product of the
applicable Differential Terminal Building Rental Rate for said Rate Period and
the square footage of said Common Use premises).
SECTION 507. LANDING FEES
In accordance with Section 601 of this Agreement, AIRLINE shall pay to the
AUTHORITY a Landing Fee for each Revenue Aircraft Arrival by an aircraft
operated by AIRLINE at the AIRPORT, which shall be an amount equal to the
product of the Maximum Certificated Gross Landed Weight of the aircraft making
said Revenue Aircraft Arrival and the Landing Fee Rate.
SECTION 508. APRON FEE
In accordance with Section 601 of this Agreement, AIRLINE shall pay to the
AUTHORITY an Apron Fee which shall be the sum of the following amounts:
(i) The amount determined by multiplying the applicable Apron Square
Footage Rate, as calculated in Section 504(C), by the square footage in
AIRLINE's Assigned Apron as shown on Exhibit C;
(ii) The amount determined by multiplying the Apron Landed Weight Rate, by
AIRLINE's Revenue Landed Weight using the most recently reported six month
period fir landed weights, to be effective January 1 and July 1 of each
rate period; and
(iii) The AUTHORITY shall estimate Revenue Landed Weight for AIRLINE if
AIRLINE commences or ceases service at the AIRPORT during any Rate Period.
SECTION 509. XXX FEE
AIRLINE shall pay the AUTHORITY a XXX Fee each Rate Period which shall be
the amount determined by multiplying the XXX Requirement for said Rate Period by
the applicable AIRLINE's Variable Charges Percentage in effect for the Rate
Period.
SECTION 510. TAXES, ASSESSMENTS, LICENSES, AND PERMIT FEES
(A) AIRLINE shall pay for the cost of all taxes, including any possessory
interest tax, payment in lieu of taxes, assessments, and charges of a like
nature, if any, which at any tithe during the term of this Agreement may be
levied or become a lien by virtue of any levy, assessment, or charge by the
federal government, the State of
Ohio, the County of Franklin, the City of
Columbus, any other municipal corporation, or other local government entity
having
34
jurisdiction over the AIRPORT, any government successor to AUTHORITY to the
foregoing, or any other tax or assessment levying bodies, in whole or in part,
upon or in respect to any of AIRLINE's Leased Premises under this Agreement or
any other space or facilities of the AIRPORT as assigned or otherwise are made
available for use by AIRLINE hereunder, or upon or in respect to any personal
property belonging to AIRLINE situated on the Leased Premises or elsewhere under
this Agreement. AUTHORITY shall pay and charge back as a Supplemental Charge
any and all applicable taxes or special assessments which may he levied upon
AIRLINE's Leased Premises. AUTHORITY shall pay and include as an Operating
Expense herein any and all applicable taxes or special assessments which may be
levied upon the non-leased areas of the Terminal Building, Apron, or the
Airfield Operations Area.
(B) The AIRLINE shall also pay any fees associated with any and all
licenses, permits, certificates and other authorizations required by any
governmental authority in connection with the operations or activities performed
by AIRLINE hereunder.
(C) The AIRLINE may, at its own expense, contest the amount or validity of
any tax or assessment, or the inclusion of the Leased Premises under this
Agreement as taxable or assessable property, directly against the taxing or
assessing authority.
(D) Upon the termination or expiration of this Agreement, all lawful taxes
then levied or a lien upon any such property or taxable interest therein,
including the Preferential Use Premises, shall be paid in full by AIRLINE
forthwith, or as soon as a statement thereof has been issued by the tax
collector if termination occurs during the interval between attachment of the
lien and issuance of a statement.
SECTION 511. ELECTRIC SERVICE
AIRLINE shall pay to the AUTHORITY, for AIRLINE's use and occupancy of
Leased Premises under this Agreement, a charge for electrical current furnished
by the AUTHORITY to each such area, said charge to be computed as follows:
(A) In metered areas at a rate equal to AIRLINE's usage multiplied by the
rate the AUTHORITY pays for such electric services.
(B) In unmetered areas at a rate per square foot of occupied Preferential
Use Premises determined by averaging the total electric service charges for all
square footage in the unmetered areas of the Terminal Building, or in proportion
to the amount used as established by an electrical consultant appointed by the
AUTHORITY.
(C) In Common Use Premises, electrical service charges shall be added to
the operation and maintenance expenses allocated to those premises.
(D) In Shared Use Premises, the electrical service charges shall be shared
by the users of such premises based on the Shared Use Charges Formula.
35
SECTION 512. SUPPLEMENTAL CHARGES
AIRLINE shall pay to the AUTHORITY, for each Rate Period hereof, any
applicable Supplemental Charges including, but not limited to: charges for use
of AUTHORITY-owned passenger loading bridges, AUTHORITY-funded Tenant
Improvements, security badging, employee parking, aircraft parking fees, Federal
Inspection Services (FIS) facility fees and other AUTHORITY-provided facilities
and services as may be determined by the AUTHORITY.
SECTION 513. GENERAL AIRLINE CREDIT
(A) For each Rate Period under this Agreement, the AUTHORITY shall credit
against charges otherwise due from AIRLINE and the outer Signatory Airlines a
"General Airline Credit", as specified in Section 513(B) hereof.
(B) The General Airline Credit to be applied for each Rate Period of the
term of this Agreement is $5,300,000.
(C) AIRLINE's share of the General Airline Credit shall be calculated as
follows:
(i) One-half of the General Airline Credit shall be allocated among
Signatory Airlines based on each Signatory Airline's percentage of the
Originating Enplaned Passengers for all the Signatory Airlines for the most
recently reported 6-month period; and
(ii) One-half of the General Airline Credit shall be allocated among
Signatory Airlines ratably according to each Signatory Airline's percentage
of the total Rentals, Fees, and Charges for all Signatory Airlines for the
most recently reported six-month period; and
(iii) The allocation of AIRLINE's and each Signatory Airline's share of the
General Airline Credit shall be calculated for each six-month period to be
effective January I and July I of each Rate Period. Said allocation shall
also be recalculated and adjusted by the AUTHORITY for the commencement or
cessation of service by a Signatory Airline during any six-month period.
(D) Credit for AIRLINE's share of each Rate Period's General Airline Credit
shall be made in equal monthly installments by applying said amount as a credit
against AIRLINE's monthly invoices for Rentals, Fees, and Charges hereunder.
Unless AIRLINE specifically directs the AUTHORITY, in writing, to allocate said
credit under a different method, the General Airline Credit shall be applied pro
rata against AIRLINE's estimated charges for Terminal Building Rentals, Landing
Fees, and Apron Fees. AIRLINE may make any changes in its allocation direction
effective only at the beginning of a new Rate Period. At the time the annual
budget is prepared, AUTHORITY shall solicit in writing AIRLINE's preferred
allocation of the General Airline Credit for the subsequent Rate Period.
(E) Notwithstanding the foregoing, the General Airline Credit shall only
apply as a credit against amounts owed to the AUTHORITY and AIRLINE shall not be
entitled to its share of any General Airline Credit for any month in which it is
in default in its payment of any Rentals, Fees, Charges, PFCs, or any other
amounts owed hereunder to the AUTHORITY. In the
36
event of a Signatory Airline's Event of Default with respect to such nonpayment,
which has not been cured or otherwise remedied to the satisfaction of the
AUTHORITY, the amount of the General Airline Credit that would have been
credited to the defaulting Signatory Airline shall be first applied to
satisfying payment of any such unpaid amounts plus any costs and expenses of the
AUTHORITY relating to such default. The remaining amount of the General Airline
Credit that would otherwise be credited to said defaulting Signatory Airline
shall be apportioned among the remaining Signatory Airlines based on their then
pro rata share of the remaining amount of the General Airline Credit calculated
in accordance with Section 513(C) above,
(F) The General Airline Credit provided for herein has been formulated and
will be applied by the AUTHORITY solely for the purpose of mitigating the impact
of transitioning from the rates and charges as calculated under the former
AIRPORT operating agreements and terminal building leases to the Rentals, Fees,
and Charges as calculated under this Agreement.
(G) The General Airline Credit shall expire at the expiration of the term
of this Agreement and the AUTHORITY shall have no obligation to carry forward or
re-institute this credit in any successor agreement to this Agreement or in any
subsequent Airline rates and charges established by the AUTHORITY.
SECTION 514. PFCS TO BE HELD IN TRUST FOR THE AUTHORITY
(A) AIRLINE acknowledges that AUTHORITY shall have the right to assess
airline passengers a passenger facility charge for the use of the AIRPORT in
accordance with 49 U.S.C. Section 40117 and the rules and regulations thereunder
(14 C.F.R. Part 158, herein the PFC Regulations) and as otherwise hereinafter
authorized or permitted, AIRLINE shall collect on behalf of and remit to
AUTHORITY any such charges in accordance with the requirements of the PFC
Regulations, including but not limited to holding any charges collected by the
AIRLINE, pending remittance to AUTHORITY, in trust for the benefit of AUTHORITY.
AUTHORITY shall have the right to use all such passenger facility charges
collected in any lawful manner.
(B) AIRLINE and AUTHORITY shall be bound by and shall observe all of the
provisions of the PFC Regulations as they apply to either or both parties.
(C) If AIRLINE fails to remit PFC revenue to the AUTHORITY within the
time limits established by the PFC Regulations and within 10 calendar days after
receipt of a written notice of non-payment from AUTHORITY, AIRLINE shall be
deemed to be in default pursuant to Section 1301. Any late payment of PFC's
shall be subject to interest computed in accordance with Section 601(C).
SECTION 515. ADJUSTMENT OF CERTAIN FEES DURING THE RATE PERIOD
If during a Rate Period, the AUTHORITY's projections, based upon its most
recently available information with regard to the Authority Requirement incurred
and Non-Airline Revenues actually realized during such Rate Period for the
Airfield Area Cost Center and Apron Cost Center, and with regard to the
Authority Requirement incurred for the Terminal Building Cost Center, together
with the most recently available information with respect to actual or projected
Signatory Airline and Signatory Cargo Landing activity and Signatory Airline
Assigned Apron and Terminal Building Leased Premises, indicates that payment of
Landing Fees, Terminal Building Rentals, or Apron Fees by AIRLINE and the other
Signatory Airlines at the then-
37
existing rates would result in an underpayment or overpayment by the
Signatory Airlines of ten percent (10%) or more of the amount required hereunder
during such Rate Period, the AUTHORITY may adjust the remaining monthly
Signatory Landing Fee Rate, Terminal Building Rental Rate, or Apron Fee Rates
for such Rate Period to conform to its current projections. Such adjustments may
not be made more than 2 times per Rate Period. The AUTHORITY shall notify
AIRLINE of its intent to adjust said fees and charges and the effective date of
such proposed adjustment (which shall be no earlier than 45 days after the
giving of such notice) and provide the financial justification therefor. If the
Signatory Airlines shall request, the AUTHORITY shall meet with the Signatory
Airlines within said 45 day period to further explain said adjustment.
38
ARTICLE VI
PAYMENT OF RENTALS, FEES, AND CHARGES
SECTION 601. MANNER OF PAYMENT
(A) AIRLINE agrees to pay all sums due under this Agreement in lawful money
of the United States of America, without notice or demand, without deduction or
setoff, by check, made payable to the Columbus Municipal Airport Authority,
which check shall be delivered postage or other charges prepaid to:
BY U.S. MAIL: Columbus Municipal Airport Authority
P.O. Box: 360476
Xxxxxxxx, Xxxx 00000-0000
Attention: Accounts Receivable
BY EXPRESS MAIL: Columbus Municipal Airport Authority
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Accounts Receivable
BY WIRE TRANSFER: Columbus Municipal Airport Authority
To routing number as provided by the AUTHORITY
With confirmation sent by facsimile to
Attention: Accounts Receivable
(000) 000-0000
or other notification process approved by the
Authority
AIRLINE may pay at such other place or by such other method as may
hereafter be designated by the AUTHORITY.
(B) Amounts due shall be payable as follows:
(i) Terminal Building Rentals for Preferential Use Premises within the
Terminal Building together with all fixed annual sums due as certain
Supplemental Charges shall be paid in 12 equal monthly installments, in
advance, not later than the first day of the month for which they are due.
(ii) Terminal Building Rentals for Common Use Promises shall be paid in 12
equal monthly installments, in advance, not later than the first day of the
month for which they are due. AIRLINE's monthly installments for Terminal
Building Rentals for Common Use Premises shall be that amount determined by
multiplying one-twelfth of the applicable annual Terminal Building Rental
for the Common Use Premises in question by the applicable Common Use
Charges Formula, as defined and further described in Section 506(C) hereof.
(iii) Terminal Building Rentals for Shared Use Premises shall be paid in 12
equal monthly installments, in advance, not later than the first day of the
month for which they are due. AIRLINE's monthly installments for Terminal
Building
39
Rentals for Shared Use Premises shall be that amount determined by
multiplying one-twelfth of the applicable annual Terminal Building Rental
for the Shared Use Premises in question by the applicable Shared Use
Charges Formula, as defined and further described in Section 506(B) hereof.
(iv) Apron Fees shall be paid in monthly installments, in advance, not
later than the first day of the month for which they are due. AIRLINE's
monthly installments for Apron Fees for each six-month period beginning
January I and July I of each Rate Period shall be one-sixth of AIRLINE's
Apron Fee for the period calculated in accordance with the formula in
Section 508 hereof.
(v) Landing Fees shall be paid monthly, in arrears, by the tenth day of the
month for the preceding month's Revenue Aircraft Arrivals.
(vi) Landing Fees for all aircraft landings at the AIRPORT ground-handled
by AIRLINE (except those of a Signatory Airline) which AIRLINE has agreed
to report and collect or has collected, shall be paid monthly, in arrears,
by the tenth day of the month for the preceding month's aircraft
ground-handled by AIRLINE.
(vii) The XXX Fees shall be paid monthly, in advance, not later than the
first day of the month for which they are due. AIRLINE's monthly XXX Fee
shall be that amount determined by multiplying one-twelfth of the XXX
Requirement for that Rate Period by AIRLINE's applicable Variable Charges
Percentage.
(viii) Utility, tax and service charges, and any other charges, payments,
reimbursements, and fees due under this Agreement and accruing in any
month, including activity related Supplemental Charges, shall be paid by
AIRLINE no later than 10 business days following invoicing by the
AUTHORITY.
(ix) PFCs shall be paid monthly to the AUTHORITY in accordance with the
remittance requirements of the PFC Regulations as amended or supplemented
from time to time.
(C) If AIRLINE shall fail to make payment of any AIRLINE Rental, Fees,
Charges, PFC, Supplemental Charge, or any other payment due the AUTHORITY by the
due date thereof, AIRLINE shall pay to the AUTHORITY, in addition to all other
remedies available to the AUTHORITY and all other payments to be made by AIRLINE
to the AUTHORITY, a late charge equal to one and one half percent (1 1/2%) per
month on the overdue amount, and the reasonable costs and attorney's fees
incurred by the AUTHORITY in attempting to obtain payment, if any.
(D) The AUTHORITY shall have the right to set-off any past due amount(s)
owed the AUTHORITY by AIRLINE by applying all or a portion of AIRLINE's current
payments to such past due amount(s). Past due amounts may include sums due under
prior agreements, this Agreement, or for usage of the AIRPORT as a Non-Signatory
Airline. In the event the AUTHORITY exercises its right of set-off, as
aforesaid, it shall notify AIRLINE of the set-off, including the amount thereof.
AIRLINE shall then promptly make payment to the AUTHORITY of such sum as needed
to satisfy current amounts due. Notwithstanding the foregoing, AIRLINE
40
shall not xxxxx, suspend, postpone, set-off, or discontinue any payments of
Rentals, Fees, Charges, Supplemental Charges, or other payments payable to the
AUTHORITY hereunder.
SECTION 602. AIRLINE FINANCIAL REPORTS
(A) AIRLINE shall complete and file with the AUTHORITY no later than the
10th day of each month, on forms acceptable to the AUTHORITY, reports
summarizing statistics and information for AIRLINE's prior month operations at
the AIRPORT necessary for the computation of Rentals, Fees and Charges and
Supplemental Charges established under this Agreement, and such other
statistical and financial data as is necessary for the computation and
administration of AIRLINE's financial obligations under this Agreement,
including but not limited to the following data:
(i) A report of AIRLINE's operations at the AIRPORT, (separated by company
if any Affiliated Airlines are operating at the AIRPORT under this
Agreement) including aircraft arrivals, aircraft departures, AUTHORITY-
Controlled Passenger Holdrooms, Maximum Certificated Gross Landed Weight of
said aircraft arrivals, and Revenue Aircraft Arrivals, by aircraft type;
(ii) AIRLINE's Originating Enplaned Passengers and Deplaned Passengers,
separately identified, with deplanements segregated by terminating, and
on-line and off-line transferring passengers;
(iii) The amount (in pounds) of cargo, freight, mail, and express mail
handled by AIRLINE for the month; and
(iv) Statistics required by subparagraphs (i) through (iii) above, for each
Airline ground-handled by AIRLINE for which AIRLINE has agreed to make such
reports and which do not otherwise have an agreement with the AUTHORITY
governing the reporting of said statistics to the AUTHORITY or does not
have written authorization from the AUTHORITY to separately report said
statistics.
(B) Not later than 120 days prior to the end of each Rate Period, AIRLINE
shall make its best effort to furnish the AUTHORITY with an estimate of:
(i) The total Revenue Aircraft Arrivals and Maximum Certificated Gross
Landed Weight of all aircraft to be landed at the AIRPORT by AIRLINE during
the following Rate Period;
(ii) The projected number of Originating Enplaned Passengers, Deplaned
Passengers and through passengers of AIRLINE during the next ensuing Rate
Period summarized by month with an estimate of terminating Deplaned
Passengers separately identified; and
(iii) Such other estimates relating to anticipated operations at the
AIRPORT by AIRLINE for the next ensuing Rate Period as the AUTHORITY may
reasonably request.
41
(C) AIRLINE hereby agrees to cooperate as reasonably practical and possible
with the AUTHORITY in establishing procedures for electronic submission of the
reports required in this Section 602.
SECTION 603. FAILURE TO REPORT
(A) If AIRLINE fails to furnish the AUTHORITY with complete reports as
required by Section 602 for any month, AIRLINE's Rentals, Fees, Charges and
Supplemental Charges shall be determined by assuming that the Maximum Gross
Landed Weight of AIRLINE's Revenue Aircraft Arrivals, Enplaned Passengers, and
Deplaned Passengers for such month were one hundred twenty-five percent (125%)
of the highest reported monthly Maximum Gross Landed Weight of Revenue Aircraft
Arrivals, Originating Enplaned Passengers, and Deplaned Passengers reported by
AIRLINE in the immediately preceding twelve month period and AIRLINE shall make
payment to the AUTHORITY for Rentals, Fees, and Charges, and Supplemental
Charges based upon said estimates. Any necessary adjustment in such Rentals,
Fees, Charges, or Supplemental Charges shall be calculated after an accurate
report is delivered to the AUTHORITY by AIRLINE for the month in question.
Resulting surpluses or deficits shall be applied as credits or charges to the
appropriate charges or invoices in the month succeeding reconciliation.
(B) The AUTHORITY shall have the right to rely on said activity reports in
determining Rentals, Fees, Charges, and Supplemental Charges due hereunder.
AIRLINE shall have full responsibility for the accuracy of said reports. Late
payment and payment deficiencies due to incomplete or inaccurate activity
reports shall be subject to the late payment and late penalty charges as set
forth in Section 601(C) hereof.
(C) The acceptance by the AUTHORITY of any AIRLINE payment shall not
preclude the AUTHORITY from verifying the accuracy of Airline's reports or
computations, or from recovering any additional payment actually due from
AIRLINE. Interest on any additional amount due shall accrue thereon from the
date the payment was originally due at the rate prescribed and calculated in
Section 601(C) hereof.
(D) AIRLINE acknowledges that the AUTHORITY incurs additional
administrative expense if AIRLINE'S monthly reports are not filed when due, are
incomplete or are inaccurate. To compensate the AUTHORITY for this
administrative expense, AIRLINE agrees to pay the AUTHORITY a charge of $50.00
(increasing by $50 for each instance to a maximum of $250 per instance) for each
monthly report which is not complete or received by its due date. Said payment
shall be paid within thirty (30) days of the AUTHORITY'S invoice therefor. This
charge shall be, in addition to, and not in lieu of charges and reimbursements
required by Section 603(B) above.
SECTION 604. AIRLINE AND AUTHORITY RECORDS AND AUDIT
(A) AIRLINE shall maintain and/or make available within 10 business days of
notice from the AUTHORITY at its office in Columbus,
Ohio, or at the AIRPORT,
books, records, and accounts, including computerized records, relevant to the
determination and payment of any Rentals, Fees, and Charges, Supplemental
Charges, PFCs, and other payments due hereunder including, without limitation,
records of its aircraft arrivals and departures, gate utilization, Originating
Enplaned Passengers, Deplaned Passengers, aircraft of other Airlines
ground-handled, sublease and subcontracted services arrangements at the AIRPORT.
Each such item of
42
information shall be maintained for a period of at least three years from the
reporting period for which the documents were created and longer if necessary
for pending litigation. AIRLINE shall promptly furnish the AUTHORITY with all
information requested with respect to such books, records, and accounts,
including computerized records. The AUTHORITY and such persons as may be
designated by it, including its auditors and financial consultants, shall have
the right, during normal business hours, within 10 business days of written
notice to AIRLINE, to examine, audit, make copies of, and take extracts from
such books, records, and accounts, including computerized records.
In lieu of AIRLINE maintaining or providing the aforereferenced books,
records, and accounts, including computerized records, within the City of
Columbus or at the AIRPORT, AIRLINE may maintain and provide access to said
books, records, and accounts, including computerized records, at its corporate
headquarters. If such books, records, and accounts, including computerized
records, are made available to the AUTHORITY at AIRLINE's offices, AIRLINE shall
provide the AUTHORITY with adequate office working space and the use of onsite
office equipment to make its examination or audit during normal business hours.
Except as otherwise provided, the cost of such examination or audit shall
be borne by the AUTHORITY provided, however, the cost of such audit shall be
reimbursed to the AUTHORITY by AIRLINE if: (a) the audit reveals an underpayment
by AIRLINE of at least two percent (2%) for any Rental, Fee or Charge,
Supplemental Charge, PFC remittance, or other payment payable by AIRLINE under
this Agreement for any Rate Period, as determined by such audit, or (b) AIRLINE
has failed to maintain accurate and complete books, records, and accounts in
accordance with this Section 604
(B) In the event that AIRLINE has failed to maintain true and complete
books, records, and accounts resulting in an underpayment by AIRLINE to
AUTHORITY as described in Section 604(A), the AUTHORITY shall recalculate the
total amount of Rentals, Fees and Charges, Supplemental Charges, PFCs, or other
payments due to the AUTHORITY by AIRLINE and AIRLINE shall remit to the
AUTHORITY within 15 days of receipt of a written demand or invoice therefor from
the AUTHORITY the delinquent amount plus interest, fees and charges as provided
for in Section 601(C) and 603(B) hereof.
(C) AUTHORITY shall maintain and/or make available within ten (10) business
days of notice from AIRLINE at its office in Columbus,
Ohio, books, records, and
accounts, including computerized records, relevant to the determination,
charging and application of any Rentals, Fees and Charges, Supplemental Charges,
Reimbursements, PFCs, and other payments due from AIRLINE hereunder including,
without limitation, records of its revenues and operation and maintenance
expenses. Each such item of information shall be maintained for a period of at
least five years from the date of execution and longer if necessary for pending
litigation. AUTHORITY shall promptly furnish at AUTHORITY's offices all
information requested by AIRLINE with respect to such books, records, and
accounts, including computerized records. The AIRLINE and such persons as may be
designated by it, including its auditors and financial consultants, shall have
the right, during normal business hours, within ten business days of written
notice to AUTHORITY, to examine, audit, make copies of, and take extracts from
such books, records, and accounts, including computerized records. Except as
otherwise provided, the cost of such examination or audit shall be borne by the
AIRLINE; provided, however, the cost of such audit shall be reimbursed to the
AIRLINE by AUTHORITY if (1) the audit reveals an overstatement by AUTHORITY of
two percent (2%) for any Rental, Fee or Charge,
43
Supplemental Charge, or other payment payable by AIRLINE under this Agreement
for any Rate Period, as determined by such audit, or (2) AUTHORITY has failed to
maintain accurate and complete books, records, and accounts in accordance with
this Section 604.
(D) In the event that AUTHORITY has failed to maintain true and complete
books, records, and accounts resulting in AIRLINE'S overpayment to AUTHORITY as
described in Section 604(C) above, the AUTHORITY shall recalculate the total
amount of Rentals, Fees and Charges, Supplemental Charges, PFCs, or other
payments due to the AUTHORITY by AIRLINE and AUTHORITY shall remit to the
AIRLINE fifteen (l5) days of receipt of a written demand or invoice therefor
from the AIRLINE the delinquent amount plus a penalty charge equal to one and
one half percent (1 1/2%) per month on the overpaid amount, and any reasonable
costs and attorney's fees incurred by the AIRLINE in attempting to obtain
reimbursement.
SECTION 605. SECURITY DEPOSITS
The following Section shall apply to AIRLINE in the event (1) AIRLINE has
operated at the AIRPORT for less than twelve (12) consecutive months, or (2)
AIRLINE has failed to make payments of any Rentals. Fees, Charges, PFCs,
Reimbursements, or Supplemental Charges within ten (10) days after written
notice from the AUTHORITY of failure to make payments when due or has repeatedly
failed to file with AUTHORITY all reports within thirty (30) days after the due
date for reporting required in this Agreement. For purposes of this Section, the
time allowed for payment and reporting pursuant to this Agreement shall not
include the default cure time periods specified in Article XIII of this
Agreement.
(A) In order to guarantee the timely payment of all Rentals, Fees and
Charges. Supplemental Charges, PFCs, Reimbursements, and any other payment due
by AIRLINE under this Agreement or otherwise, and to otherwise guarantee
AIRLINE'S performance under this Agreement, AIRLINE shall provide the AUTHORITY,
on or before the execution date of this Agreement or within 10 days of
AUTHORITY'S notification of any failure to make a payment required under this
Agreement and Section 601, a Security Deposit in an amount equal to three months
of the estimated annual Rentals, Fees and Charges, Supplemental Charges, PFCs,
and other sums payable by AIRLINE for the then current Rate Period. Said
Security Deposit shall be updated as to amount and renewed each Rate Period if
required by its terms.
(B) If AIRLINE shall commit an Event of Default under Section 1301 of this
Agreement or otherwise not satisfy the requirements of this Section, the
AUTHORITY shall have the right to use such Security Deposit to pay AIRLINE'S
Rentals, Fees and Charges, Supplemental Charges, PFCs, and any other amount owed
to the AUTHORITY by AIRLINE then due and payable or to apply the proceeds
thereof to any cost or expense or material damages incurred by the AUTHORITY as
a result of AIRLINE'S default. In the event that any such Security Deposit or
portion thereof is utilized, as aforesaid, AIRLINE shall replenish or provide a
renewal or replacement Security Deposit within 10 days of being notified so to
do by the AUTHORITY. The AUTHORITY'S rights under this Section 605 shall be in
addition to all other rights and remedies provided to the AUTHORITY under this
Agreement.
At such time as AIRLINE has operated at the AIRPORT for at least twelve
consecutive months and has made timely payment and submission of all charges and
reports required under this Agreement and Section 602 during that period,
AUTHORITY shall release AIRLINE of such Security Deposit requirement, refunding
any AIRLINE funds or other forms of security currently
44
held by AUTHORITY. At any subsequent time during this Agreement should AIRLINE
not continue to satisfy the terms of this Section, AUTHORITY may reinstitute its
right to demand a Security Deposit from AIRLINE as described herein.
SECTION 606. RIGHT TO CONTEST; NO ABATEMENT OR SET-OFF
(A) The payment by AIRLINE to the AUTHORITY, and the acceptance by the
AUTHORITY from AIRLINE, of any amount hereunder shall not preclude the AUTH0RITY
from questioning the accuracy of any statement or the basis upon which such
payment was made, or preclude the AUTHORITY from making any claim against
AIRLINE for any additional amount payable by AIRLINE hereunder, or preclude
AIRLINE from making any claim against the AUTHORITY for credit for any excess
amount paid by AIRLINE hereunder.
(B) Notwithstanding the foregoing, AIRLINE shall not xxxxx, suspend,
postpone, setoff or discontinue any payments of Rentals, Fees, and Charges
payable hereunder, except as herein expressly provided.
SECTION 607. NO OTHER FEES AND CHARGES
(A) Except as otherwise provided for herein, no other rentals, fees, or
charges shall be imposed by the AUTHORITY on AIRLINE For the use of Leased
Premises and other facilities, and the rights, licenses, and privileges granted
to AIRLINE in Article III of this Agreement. The foregoing provision shall not
be construed to prohibit the AUTHORITY from imposing fees and charges for the
use of specified equipment or facilities at the AIRPORT or from imposing fines,
penalties, or assessments for the enforcement of the Authority's Rules and
Regulations.
(B) The provisions contained in Section 607(A) shall not preclude the
AUTHORITY from seeking reimbursement from AIRLINE and other Airlines for the
cost of services provided to AIRLINE, the Signatory Airlines, and other Airlines
in compliance with any federal law or rule or regulation which is enacted or
amended subsequent to execution of this Agreement, or for any services or
facilities provided subsequent to the execution date of this Agreement, the cost
of which is not currently included in the estimated Authority Requirement used
to calculate Rentals, Fees, and Charges under this Agreement or included as a
Supplemental Charge recovery, subject to the terms of this Agreement.
SECTION 608. COVENANT NOT TO GRANT MORE FAVORABLE RENTALS, FEES AND CHARGES
The AUTHORITY agrees that it will not enter into an agreement with any
Airline providing scheduled or charter passenger or all-cargo air transportation
service to and from the AIRPORT, having similar leased premises, facilities,
rights, and privileges and imposing similar obligations to those of AIRLINE
under this Agreement, which grants more favorable rentals, fees, or charges to
said AIRLINE than those granted to AIRLINE under this Agreement unless the
AUTHORITY also makes those more favorable rentals, fees, or charges available
to AIRLINE hereunder. Notwithstanding the foregoing provision, the AUTHORITY
reserves the right to charge for the AUTHORITY-controlled space and facilities
on a per use basis, and ground lease space at different rates.
45
ARTICLE VII
OPERATION AND MAINTENANCE OF AIRPORT
SECTION 707. EXHIBIT G
A schedule identifying the division of responsibility for operations and
maintenance between the AUTHORITY and AIRLINE is attached hereto as Exhibit G
and made a part hereof.
SECTION 702. MAINTENANCE BY THE AUTHORITY
The AUTHORITY shall, in accordance with Exhibit G operate, maintain, and
keep in good repair, all of the areas and facilities of the AIRPORT except as
specifically excepted by Section 703, including the following:
(A) The AUTHORITY shall perform structural maintenance for AUTHORITY
constructed facilities including the roof of the Terminal Building and provide
the maintenance and operation of AUTHORITY-installed mechanical and electrical
systems.
(B) The AUTHORITY shall provide exterior window and building cleaning and
interior window cleaning of the Terminal Building except in AIRLINE's
non-publicly accessible Preferential Use Premises, which shall be the
responsibility of AIRLINE.
(C) The AUTHORITY shall provide custodial maintenance in the publicly
accessible areas of the Terminal Building, Passenger Holdrooms, Common Use
Areas, other AUTHORITY-controlled areas, and the mechanical and electrical
equipment rooms.
(D) The AUTHORITY shall perform structural and routine maintenance and
general snow and ice removal on the Apron and the Airfield Operations Area.
(E) The AUTHORITY shall maintain the public areas and Common Use Areas of
the Terminal Building in a neat, clean, and sanitary condition.
(F) The AUTHORITY shall provide maintenance of MUFIDS/BIDS/CUTE equipment
in the Terminal Building, if such equipment is AUTHORITY-installed, and
AUTHORITY-installed public address systems.
SECTION 703. MAINTENANCE BY AIRLINE
(A) AIRLINE shall at all times maintain its Leased Premises in an orderly,
clean, neat, and sanitary condition, free from trash and debris, provided,
however, that this requirement shall not be construed to mean AIRLINE shall have
janitorial responsibilities designated to be those of the AUTHORITY pursuant to
Exhibit G.
(i) AIRLINE shall provide all other maintenance and all custodial and
janitorial services within its nonpublic Leased Premises except as
described above. AIRLINE shall also provide electrical re-xxxxxxx within
its nonpublic Preferential Use Premises within the Terminal Building and
all maintenance and operations of tenant-installed improvements and
systems. AIRLINE shall obtain
46
written approval of the AUTHORITY for any decorating or redecorating of
areas exposed to the public view.
(ii) AIRLINE shall make its best effort to keep its Assigned Apron and such
other apron and ramp areas used by AIRLINE, free from stones, fuel, oil,
petroleum products, or grease.
(B) AIRLINE shall operate, maintain, and repair and provide janitorial
services, at its own expense, to: (a) any loading bridges and ground power unit
or preconditioned air units assigned for its use, and (b) any outbound baggage
makeup conveyor system located on its Leased Premises, whether or not title to
such bridges, ground power unit, or preconditioned air units, or baggage
conveyors rests with AIRLINE or the AUTHORITY; provided, however, that the
AUTHORITY retains the right to assume responsibility for operation, maintenance,
and repair of any AUTHORITY-owned equipment upon 30 days prior written notice to
AIRLINE, and provided, further, that nothing herein shall relieve AIRLINE of the
obligation to pay equipment charges for any AUTHORITY-owned equipment used by
AIRLINE. In the event AUTHORITY assumes responsibility for the operation or
maintenance of such equipment, charges for usage shall be adjusted accordingly.
AIRLINE shall provide maintenance for its owned or assigned loading bridges and
outbound baggage conveyances and claim devices in accordance with the
manufacturer's specifications, provided a copy of such specifications has been
provided AIRLINE. The interior and exterior finish and cleanliness of the
loading bridges must comply with the AUTHORITY's Rules and Regulations for the
AIRPORT.
(C) AIRLINE shall be responsible for the prompt repair or cost of repair of
any damage to any Leased Premises at the AIRPORT caused by AIRLINE, its
servants, agents, employees, licensees, passengers, and invitees. If practical,
all repairs shall be conducted under the supervision of the AUTHORITY.
(D) AUTHORITY shall determine the adequacy of maintenance of all premises
at the AIRPORT. AIRLINE agrees to implement all reasonable requests and
suggestions of the AUTHORITY regarding the maintenance of its Leased Premises at
the AIRPORT.
(E) AIRLINE shall provide and maintain hand fire extinguishers for the
interior of its non-publicly accessible Leased Premises in accordance with
applicable safety codes.
(F) AIRLINE shall, in accordance with Exhibit G, be responsible for and
shall perform or cause to be performed, maintenance, and repair of its Leased
Premises. AIRLINE shall, at all times:
(i) Keep all fixtures, equipment, and personal property in a clean, safe,
sanitary and orderly condition and appearance;
(ii) Maintain the same in good condition (reasonable wear and tear which
could not have been prevented by proper maintenance excepted) and perform
all ordinary repairs, replacements, and inside painting, such repairs,
replacements and painting by AIRLINE to be of a quality and class not
inferior to the original material and workmanship, and all finishes within
public premises shall be consistent with the AUTHORITY's approved finishes
for the area;
47
(iii) For any equipment, installed in or on the Leased Premises, that is
purchased using the proceeds of any financing sponsored by the AUTHORITY,
repair, maintain, and replace such equipment as is necessary to assure that
at the end of the term hereof, provided equipment ownership is to be
retained by AUTHORITY. The condition of such equipment shall be consistent
with the expected useful life of similar equipment of the same age and
function in accordance with generally accepted safety and operations
standards;
(iv) Control all of its vehicular traffic in the AIRPORT, and specific to
such vehicular traffic, take all precautions reasonably necessary to
promote the safety of its passengers, customers, employees, business
visitors, and other persons, and employ such means as may be necessary to
direct the movements of its vehicular traffic; and
(v) Dispose of its garbage, debris, and other waste materials (excluding
snow and ice) in the AUTHORITY's designated collection containers and shall
not allow trash to collect on AIRLINE's Leased Premises or otherwise create
unsanitary or unsafe conditions.
SECTION 704. AUTHORITY RIGHT TO ENTER AND ACT
The AUTHORITY shall have the right at reasonable times to enter upon any of
the Leased Premises or other premises occupied by AIRLINE for any of the
purposes listed below. AUTHORITY shall provide reasonable notice and such right
of entry shall not unreasonably interfere with AIRLINE's use or occupancy of
such premises except if the situation endangers the health or safety of persons
or the safety of operations at the AIRPORT.
(i) To inspect the Leased Premises to determine whether AIRLINE has
complied and is complying with the terms and conditions of this Agreement,
including without limitation, the AUTHORITY may inspect for repairs to
utilities systems, for environmental testing, and for any other purpose
necessary for or incidental to or connected with the AUTHORITY's
obligations hereunder, or in the exercise of the AUTHORITY's capacity as
AIRPORT owner.
(ii) To do anything in or about the Leased Premises in order to cure
failures, omissions or violations of any terms, covenants and conditions of
this Agreement on AIRLINE's part including to perform maintenance and make
repairs in any case where AIRLINE is obligated, but has failed to do so.
(iii) Upon reasonable notice, except in emergencies, to perform such
maintenance, cleaning, or repair as the AUTHORITY reasonably deems
necessary, and which is the responsibility of the AUTHORITY under this
Agreement.
(iv) For fire protection, safety, or security purposes.
(v) To make structural additions and alterations to the AIRPORT.
(vi) Upon the termination or cancellation of this Agreement.
48
The right of inspection reserved to the AUTHORITY shall impose no
obligation on the AUTHORITY to make inspections to ascertain the condition of
such space and shall impart no liability upon the AUTHORITY for failure to make
such inspections. The failure of the AUTHORITY to inspect or monitor or give
AIRLINE notice of a default or a notice of a hazardous or unsafe condition with
respect to AIRLINE's operations under this Agreement shall not release AIRLINE
from its liability to perform its obligations under this Agreement or impose any
liability on the AUTHORITY, and in any other event where the AUTHORITY
determines that it is necessary or desirable to do so to preserve the AIRPORT
or any portion thereof or to correct any conditions likely to cause injury or
damage. As to any such repairs or replacements performed by the AUTHORITY that
arc occasioned by the negligence or willful misconduct by AIRLINE, AIRLINE shall
pay the AUTHORITY for its entire cost of performing such work, plus a
fifteen-percent (15%) administrative charge.
SECTION 705. AUTHORITY OBLIGATIONS
Except as specifically provided for in this Agreement, the AUTHORITY shall
not be under any duty or obligation to AIRLINE to repair or maintain the
Preferential Use Premises or any portion thereof, or any facilities or equipment
constructed thereon. The AUTHORITY shall not be responsible or liable to AIRLINE
for any claims for compensation for any losses, damages, Or injury, including
lost profits, sustained by AIRLINE resulting from failure of any water supply,
heat, air conditioning, electrical power, or sewer or drainage facility, or
caused by the natural physical conditions on the AIRPORT, whether on the surface
or underground, including stability, moving, shifting, settlement of ground, or
displacement of materials by fire, water, windstorm, tornado, act of God, or
state of war, civilian commotion or riot, or any other cause or peril beyond the
control of the AUTHORITY, except to the extent covered by the AUTHORITY's
insurance or as may be caused by the AUTHORITY's negligence or willful
misconduct.
49
ARTICLE VIII
CONSTRUCTION
SECTION 801. ALTERATIONS AND IMPROVEMENTS BY AIRLINE
AIRLINE may construct and install, at AIRLINE's sole expense, such
improvements in its Preferential Use Premises as AIRLINE deems to be necessary
for its operations; provided, however, that the plans and specifications,
location, and construction schedule for such improvements including any
substantial alteration or addition thereto have been submitted to and approved
by AUTHORITY in writing prior to the commencement of any and all such
construction or installation and that AIRLINE complies with the requirements of
all applicable laws and building codes and the AUTHORITY's Rules and Regulations
governing tenant construction, alterations, and improvements. Provided further,
that no reduction or abatement of Rentals, Fees, and Charges shall he allowed
for any interference with AIRLINE's operations by such construction. All such
alterations and improvements by AIRLINE shall be subject to the following:
(i) The AUTHORITY shall have the right to refuse approval of such plans and
specifications if the external appearance of such improvements and
facilities in publicly-viewed areas does not meet the AUTHORITY's
requirements for substantial uniformity of appearance of improvements and
facilities on the AIRPORT, or, if the type or time of construction or
installation, or the location thereof does not meet the AUTHORITY's
requirements for safe use of the AIRPORT and appurtenances by other
authorized persons. The AUTHORITY may, at its own cost, inspect any such
construction or installation.
(ii) All improvements made to AIRLINE's Preferential Use Premises and
permanent additions or alterations thereto made by AIRLINE, except those
financed by the AUTHORITY, shall be and remain the property of AIRLINE
until expiration of the term of this Agreement. Upon termination or
cancellation of this Agreement, said additions and alterations shall become
the property of the AUTHORITY; provided, however, that any trade fixtures,
signs, equipment, and other movable personal property of AIRLINE not
considered a permanent improvement to AIRLINE's Preferential Use Premises
shall remain the property of AIRLINE, subject to the terms of Article XIV.
(iii) AIRLINE shall promptly pay all lawful claims made against the
AUTHORITY and discharge all liens filed or which exist against the
Preferential Use Premises, any other portion of the AIRPORT, or AIRLINE's
trade fixtures or trade equipment arising out of or in connection with the
failure to make payment for work done or materials provided by AIRLINE, its
contractors, subcontractors, or materialmen, provided, however, AIRLINE
shall have the right to contest the amount or validity of any such claim or
lien without being in default under this Agreement. The AUTHORITY shall
give timely notice to AIRLINE of all such claims and liens of which it
becomes aware. Within 10 days of said notice, AIRLINE shall provide such
security, in such form and amount as is satisfactory to the AUTHORITY's
legal counsel.
50
(iv) AIRLINE shall use, and shall cause each of its officers, employees,
agents, and contractors, to use, the highest degree of care when entering
upon any property owned by the AUTHORITY in connection with the work. In
the case of any property owned by the AUTHORITY, or property owned by and
leased from the AUTHORITY, AIRLINE shall comply, and shall cause each of
its officers, employees, agents, and contractors to comply with any and all
instructions and requirements for the use of such property.
SECTION 802. NONDISTURBANCE OF AIRPORT TENANTS AND OPERATIONS
Any work by AIRLINE and its contractors shall be conducted in an orderly
and proper manner, and shall not otherwise annoy, disturb, create a hazard or
be offensive to others at the AIRPORT, or interfere with other projects on, or
the operation of, the AIRPORT. AIRLINE shall promptly comply, and shall cause
its contractors to comply, with any reasonable request from the AUTHORITY to
correct the demeanor or conduct of the contractors. In the event AIRLINE or its
contractors fail to so comply, the AUTHORITY shall have the right to stop any or
all work being performed, until such compliance is achieved, without terminating
this Agreement.
SECTION 803. CONSTRUCTION AND AIRPORT EXPANSION
The AUTHORITY shall have the right, at such times as may be reasonable for
purposes of maintaining or constructing improvements, modifications, or
expansions to the AIRPORT, including construction of Capital Projects, to close,
relocate, reconstruct, change, alter, or modify the Leased Premises anti/or the
means of access to the Leased Premises pursuant to this Agreement or otherwise,
either temporarily or permanently, provided, however, that the AUTHORITY shall
provide:
(i) Reasonable notice of the construction activities to AIRLINE;
(ii) Adequate means of ingress and egress for Preferential Use Premises or,
in lieu thereof, alternate premises of comparable size, condition, utility,
and location to those being vacated by AIRLINE to the extent reasonably
possible, with adequate means of ingress and egress. In the event alternate
premises are provided to AIRLINE by the AUTHORITY, the AUTHORITY shall pay
all costs resulting from such relocation, including the value of AIRLINE's
unamortized improvements. All such costs shall be considered a cost of the
Capital Project unless AIRLINE's relocation is a result of AUTHORITY's
accommodation of a Requesting Airline as provided for in Sections 405, 406,
and 407; and
(iii) Any AUTHORITY sponsored project that is undertaken shall not
adversely interfere with AIRLINE's operation to the extent reasonably
possible.
51
ARTICLE IX
RULES AND REGULATIONS; COMPLIANCE WITH LAWS
SECTION 901. RULES AND REGULATIONS
AIRLINE shall comply, and shall use reasonable efforts to cause its agents,
employees, contractors and shall encourage its passengers, guests, and invitees
to comply, with all the AUTHORITY's Rules and Regulations governing the conduct
at and the operations of the AIRPORT.
SECTION 902. OBSERVANCE AND COMPLIANCE WITH LAWS
(A) AIRLINE shall, and shall cause its agents, employees, contractors, and
licensees to observe and comply with and pay all taxes and obtain all licenses,
permits, certificates, and other authorizations required by all applicable
federal, state, county, and municipal laws, statutes, ordinances, regulations,
and executive orders, including but not limited to all rules, regulations, and
directives of the FAA or any successor agency thereto applicable to the
AIRLINE's operation at the AIRPORT.
(B) Notwithstanding anything herein to the contrary, references herein to a
statute or law shall be deemed to be a reference to (i) such statute or law as
may be amended from time to time, (ii) all regulations, rules, executive orders,
policies and instructions pertaining to or promulgated pursuant to such statute
or law as they now exist or may be amended from time to time, and (iii) all
future statutes, laws, regulations, rules, executive orders, policies, and
instructions pertaining to the same or similar subject matter as they now exist
or may be amended from time to time.
(C) AIRLINE shall make all non-structural improvements, repairs, and
alterations to its Preferential use Premises (subject to prior written approval
of the AUTHORITY), equipment, and personal property that are required to comply
with or conform to any of such statutes and ordinances or building codes which
are applicable to AIRLINE's operation at the Airport.
SECTION 903. COMPLIANCE WITH RULE 15c2-12 OF THE SECURITIES EXCHANGE ACT
If at any time when Bonds are outstanding and AIRLINE is not complying with
the annual reporting requirements under the Security Exchange Act of 1934, as
amended (the Securities Exchange Act), AIRLINE will provide to the AUTHORITY,
upon the AUTHORITY'S written request such information with respect to AIRLINE as
is reasonably necessary in order to comply with Rule 15c2-12 under the
Securities Exchange Act.
SECTION 904. COMPLIANCE WITH ENVIRONMENTAL LAWS
AIRLINE expressly covenants, represents, and warrants that in conducting
any activities or business on the Leased Premises or at the AIRPORT, and in
performing any work pursuant to this Agreement, AIRLINE shall comply with any
and all applicable Environmental Laws. AIRLINE further covenants, represents,
and warrants:
52
(A) ENVIRONMENTAL PERMITS. AIRLINE shall obtain and maintain any and all
Environmental Permits required by any applicable Environmental Laws to conduct
the activities or business in which AIRLINE will engage on the Leased Premises
or at the AIRPORT.
(B) REVIEW OF ENVIRONMENTAL DOCUMENTS. At the AUTHORITY's request, AIRLINE
shall make available for inspection and copying, upon reasonable notice and at
reasonable times, any and all documents and materials AIRLINE has prepared
pursuant to any applicable Environmental Laws or Environmental Permits, or
submitted to arty governmental agency, which documents and materials relate to
environmental issues, Environmental Laws or Environmental Permits and which
pertain to the AIRPORT or the Leased Premises and would be discoverable in
litigation.
(C) ACCESS FOR ENVIRONMENTAL INSPECTION. The AUTHORITY shall have access to
the Leased Premises upon prior notice to inspect the same in order to confirm
that AIRLINE is using the Leased Premises in accordance with all applicable
Environmental Laws and Environmental Permits. AIRLINE agrees to fully cooperate
with any such inspections provided that such inspections shall not unreasonably
interfere with AIRLINE's operations. Upon receipt of written notification of
non-compliance or upon assertion of a claim by a third party and at the request
of the AUTHORITY, AIRLINE shall conduct, such testing and analysis as AIRLINE
deems reasonable to ascertain whether AIRLINE is using the Leased Premises in
compliance with all applicable Environmental Laws and Environmental Permits. Any
such tests shall be conducted by qualified independent experts chosen by
AIRLINE, but shall be subject to the AUTHORITY's approval which shall not be
unreasonably withheld. AIRLINE shall provide copies of any and all reports
prepared by such experts to the AUTHORITY within a reasonable time after AIRLINE
receives such reports.
(D) ENVIRONMENTAL NONCOMPLIANCE. If AIRLINE fails to comply with any
applicable Environmental Laws or Environmental Permits governing activity at the
Airport, or if AIRLINE fails to commence immediate corrective actions and any
required mediation, the AUTHORITY, in addition to the rights and remedies
described elsewhere in this Agreement and any other rights and remedies
otherwise available to the AUTHORITY, may enter the Leased Premises and take all
reasonable and necessary actions, at AIRLINE's expense, to insure such
compliance with such Environmental Laws and Environmental Permits.
(E) DUTY TO NOTIFY AUTHORITY. In the event of any release or threatened
release of Hazardous Materials caused by AIRLINE, its employees, agents or
contractors, and which is required by applicable Environmental Laws or Authority
Rules and Regulations to be reported by AIRLINE, whether as a result of
negligent conduct or otherwise, at, on, under or about the Leased Premises or
the AIRPORT, or in the event any claim, demand, complaint or action is made or
taken against AIRLINE that pertains to the environment at the Leased Premises or
at the AIRPORT, or if AIRLINE receives any notice pertaining to AIRLINE's
failure or alleged failure to comply with any Environmental Laws or
Environmental Permits at the AIRPORT, AIRLINE shall promptly notify the
AUTHORITY, of all known facts pertinent to such release, threatened release,
claim, demand, complaint, action, or notice, and shall provide the AUTHORITY
with copies of any and all claims, demands, complaints, notices, or actions so
made. If AIRLINE is required, by any Environmental Laws, Environmental Permits,
or governmental agency, to file any notice or report of a release or threatened
release of Hazardous Materials at, on, under or about the Leased Premises or the
AIRPORT, AIRLINE shall simultaneously provide a copy of such notice or report to
the AUTHORITY.
53
(F) ENVIRONMENTAL REMEDIATION.
(i) AIRLINE shall undertake all necessary steps to remedy and remove any
other environmental pollution, contamination, condition or damage to the
extent caused by or results from the activities, conduct or presence of
AIRLINE or its agents, employees or licensees on the Leased Premises or at
the AIRPORT, whether resulting front negligent conduct or otherwise, as
determined by the appropriate governmental agency to he necessary to
reasonably protect the public health and safety to the extent required by
applicable law, or to bring the Leased Premises or the AIRPORT into
compliance with all applicable Environmental Laws and Environmental
Permits. Such work shall be performed at AIRLINE's expense. Except in the
event of an emergency, such work shall be performed after AIRLINE submits
to the AUTHORITY a written plan for completing such work and receives the
prior approval of the AUTHORITY, which shall not be unreasonably withheld.
The AUTHORITY shall have the right to review and inspect all such work at
any time using consultants and representatives of its choice. The actual
cost of such review and inspection shall be paid by AIRLINE. Specific
cleanup levels for any environmental remediation work AIRLINE performs
shall be designed to meet and satisfy the requirements of all applicable
Environmental Laws and Environmental Permits. AIRLINE expressly warrants
that all work performed pursuant to this Agreement shall be performed in
accordance with all applicable Environmental Laws and Environmental Permits
specifically including, without limiting the generality of the foregoing,
any applicable National Emission Standards for Hazardous Air Pollutants
(NESHAP), 40 C.F.R. 61.145.
(ii) Notwithstanding the obligations imposed on AIRLINE in paragraph (F)
(i) of this Section of the Agreement, the AUTHORITY and other federal,
state, and local agencies having jurisdiction shall at all times have the
right should the AIRLINE fail to respond to the notification, after a
specified cure period, if any, or immediately if necessary to mediate
further contamination, to take any and all actions as they may individually
or collectively deem appropriate to cease, contain, investigate, remediate,
or otherwise respond to a condition which results from, causes or threatens
to cause environmental pollution, contamination, or damage at, under or
about the Leased Premises or at the AIRPORT. AIRLINE agrees to cooperate
with any and all such actions.
(G) STORMWATER.
(i) Notwithstanding any other provisions or terms of this Agreement,
AIRLINE acknowledges that certain properties within the AIRPORT, or on
AUTHORITY-owned land, are subject to stormwater rules and regulations.
AIRLINE agrees to observe and abide by such stormwater rules and
regulations as may be applicable to AIRPORT property and uses thereof.
(ii) The AUTHORITY and AIRLINE will cooperate to ensure compliance with any
stormwater discharge permit terms and conditions, as well as to insure
safety and to minimize cost of compliance. AIRLINE acknowledges further
that it may be necessary to undertake such actions to minimize the exposure
of
54
stormwater to "significant materials" generated, stored, handled, or
otherwise used by AIRLINE, as such term may be defined by applicable storm
water rules and regulations, by implementing and maintaining appropriate
and relevant "best management practices" as that term may be defined in
applicable stormwater rules and regulations.
(iii) The AUTHORITY will invite AIRLINE to participate in discussions with
the
Ohio EPA regarding discharge permit requirements and shall provide
AIRLINE with written notice of any stormwater discharge permit requirements
applicable to AIRLINE and with which AIRLINE will be obligated to comply
from time-to-time, including certification of non-stormwater discharges;
collection of stormwater samples; preparation of stormwater pollution
prevention or similar plans; implementation of best management practices;
and maintenance of necessary records. Such written notice shall include
applicable deadlines. AIRLINE agrees to undertake, at its expense, unless
otherwise agreed to in writing between the AUTHORITY and AIRLINE, those
stormwater permit requirements for which it is reasonably responsible and
for which it has received written notice from the AUTHORITY and which are
applicable exclusively to Airline, and AIRLINE agrees that it will hold
harmless and indemnify the AUTHORITY for any violations or non-compliance
by AIRLINE with any such permit requirements for which it has undertaken.
(H) NO LIABILITY FOR BUSINESS INTERRUPTION. The AUTHORITY shall not be
responsible to AIRLINE, its agents, or employees, for any environmental
condition in existence on the Leased Premises or at the AIRPORT, which condition
may interfere with AIRLINE's business or other operations or activities, or
which might otherwise cause damages to AIRLINE through loss of business,
destruction of property, or injury to AIRLINE, its owners, directors, officers,
agents, employees, customers, clients, vendees, invitees, concessionaires, or
licensees except to the extent such conditions are caused by the Authority, its
employees or agents.
(I) HOLD HARMLESS. AIRLINE shall assume the risk of, be responsible for,
defend, indemnify and hold harmless the AUTHORITY, including without limitation
its directors, officers, agents, and employees, from any and all losses, claims,
liabilities, damages, costs, and expenses including reasonable attorneys' fees,
the AUTHORITY may incur in connection with any actual, threatened, or potential
environmental pollution, contamination, condition, or damage to the extent
caused by or resulting form the activities, conduct, or presence of AIRLINE or
AIRLINE's directors, officers, agents, contractors, or employees, at the
AIRPORT, or from AIRLINE's failure to comply with any Environmental Laws or
Environmental Permits at the AIRPORT.
(J) AIRLINE agrees that all remedies of the AUTHORITY as provided in this
Agreement with regard to environmental pollution, contamination, damage, or any
actual or threatened violations of any Environmental Laws or Environmental
Permits shall be deemed cumulative in nature and the Authority's right to
indemnification as provided under this Section 904 shall survive the termination
of this Agreement.
55
SECTION 905. COMPLIANCE WITH 14 C.F.R. 382.40
AIRLINE, when required by 14 C.F.R. Part 382 or any other laws, rules or
applicable regulations now or hereafter adopted by federal or state governments,
shall provide certain facilities for the movement of passengers with
disabilities while enplaning and deplaning its aircraft. To the extent required
by law, AIRLINE shall be responsible for acquiring or making arrangement for the
use of boarding assistance devices, when applicable, for its aircraft. AIRLINE
shall ensure that all lifts and other accessibility equipment used by it are
maintained in proper working condition. AIRLINE shall ensure that those
personnel involved in providing boarding assistance through the use of lifts or
other accessibility equipment are properly trained in the use and operation of
the devices and appropriate boarding assistance procedures that safeguard the
safety and dignity of passengers.
SECTION 906. NONDISCRIMINATION
(A) AIRLINE for itself; its personal representatives, successors in
interest, and assigns, as a part of the consideration hereof, does hereby agree
as a covenant running with the land that (i) no person on the grounds of race,
color, or national origin shall be excluded from participation in, denied the
benefits of, or be otherwise subjected to discrimination in the use of Leased
Premises; (ii) in the construction of any improvements on, over, or under Leased
Premises and the furnishing of services thereon, no person on the grounds of
race, color, or national origin shall he excluded from participation in, denied
the benefits of, or be otherwise subjected to discrimination; and (iii) AIRLINE
shall use the Leased Premises in compliance with all other requirements imposed
by or pursuant to the Airport and Airway Improvement Act of 1982, as amended or
superseded, and any regulations issued thereunder, as well as in compliance with
Title VI of the Civil Rights Act of 1964.
(B) AIRLINE acknowledges that the provisions of 49 C.F.R. Part 23,
"Participation by Minority Business Enterprise in Department of Transportation
Programs," as said regulations may be amended, and such other similar
regulations that may be enacted governing Disadvantaged Business Enterprises,
may be applicable to the activities of AIRLINE under the terms of this
Agreement, unless exempted by said regulations, and hereby agrees to comply with
the applicable regulations. These requirements may include, but not be limited
to, compliance with Disadvantaged Business Enterprise or Minority Business
Enterprise, as such terms are defined in 49 U.S.C. 2204, 49 C.F.R. 23.5, or such
other statutes or regulations as may be enacted governing minority or
disadvantaged business enterprises, participation goals, the keeping of certain
records of good faith compliance efforts, which would be subject to review by
the various agencies, the submission of various reports and, if so directed, the
contracting of specified percentages of goods and services contracts to Minority
and Disadvantaged Business Enterprises.
(C) AIRLINE agrees to furnish services in the United States in compliance
with federal law and on a fair and not unjustly discriminatory basis to all
users thereof, and to charge fair, reasonable and not unjustly discriminatory
prices for each unit of service; provided, that AIRLINE may be allowed to make
reasonable and nondiscriminatory discounts, rebates or other similar types of
price reductions or as otherwise required by 49 C.F.R., Subtitle A, Part 21,
Nondiscrimination in Federally Assisted Programs of the United States Department
of Transportation, as said Statute and regulations may be amended.
56
(D) In the event of the breach of any of the above nondiscrimination
covenants, the AUTHORITY shall have the right to terminate this Agreement and to
reenter and repossess the Leased premises and said land and the facilities
thereon, and hold the same as if said Agreement had never been made or issued.
Unless precluded by the provisions of the above assurance or regulation, the
AUTHORITY shall treat such breach as an Event of Default under Section 1301 of
this Agreement and follow the notice and termination provisions contained in
Section 1302 of this Agreement.
SECTION 907. RIGHT TO DEVELOP OR IMPROVE THE AIRPORT
The AUTHORITY reserves the right to further develop or improve the AIRPORT
as it sees fit, regardless of the desires or view of AIRLINE and without
interference or hindrance provided that the AUTHORITY agrees to consider
reasonable alternatives which may reduce interference with AIRLINE's operations.
57
ARTICLE X
DEFERRABLE CAPITAL EXPENDITURES
SECTION 1001. CONSULTATION FOR CAPITAL EXPENDITURES
(A) The AUTHORITY shall engage in the following consultation process with
the Signatory Airlines, and Signatory Cargo Carriers, if applicable, prior to
undertaking any Deferrable Capital Expenditure. Such consultation process shall
include the following:
(i) The AUTHORITY shall provide the Signatory Airlines, and Signatory Cargo
Carriers, if applicable, written notice of the proposed Deferrable Capital
Expenditure, including a full conceptual description of the project to be
funded, general information regarding the need for and benefits to be
derived from the project, cost estimates for the project, the sources of
financing to he used for the project, and the project's estimated effect on
Rentals, Fees, and Charges, including estimated annual operations and
maintenance expenses associated with the project to the extent available. A
form for AIRLINE's response shall be included with the information provided
to the applicable airlines.
(ii) Within 15 days of receipt of such notice, any Signatory Airline or
Signatory Cargo Carrier may request in writing a meeting with the AUTHORITY
and the other Signatory Airlines and Cargo Carriers for the purpose of
discussing the proposed project.
(iii) In the event no such airline requests a meeting and a deferral is not
requested by the Signatory Airlines or Signatory Cargo Carriers, if
applicable, as provided below, the AUTHORITY may proceed with the
Deferrable Capital Expenditure and include the cost thereof in the
Authority Requirement for calculation of Landing Fees under Section 503 or
Apron Fees under Section 504 pursuant to this Agreement.
(iv) In the event a Signatory Airline or Signatory Cargo Carrier, if
applicable, requests a meeting, the AUTHORITY shall convene such meeting no
sooner than 15 days following the airline's request for same and shall duty
consider the comments and recommendations of the Signatory Airlines and
Signatory Cargo Carriers, if applicable, received at such meeting prior to
incurring the Deferrable Capital Expenditure.
SECTION 1002. DEFERRAL
Any Deferrable Capital Expenditure so presented for the airlines
consideration shall be deferred upon receipt of requests for deferral by a
Majority In Interest, as defined and appropriate to each proposed Deferrable
Capital Expenditure. All such airline requests for deferral must be in writing
and submitted to the AUTHORITY by each individual carrier requesting deferral
within 30 days following the meeting described above or, in the event no such
meeting is requested, within 15 days following the distribution of the
AUTHORITY's notice described above. In the event a Majority In Interest requests
a deferral of a proposed Deferrable Capital Expenditure, the AUTHORITY shall not
undertake said Deferrable Capital Expenditure for at least 1-year
58
following the deferral request, or such shorter period if specified in the
written deferral requests by a Majority In Interest. A Majority In Interest may
at any time eliminate any remaining portion of a 1-year deferral period for a
particular Deferrable Capital Expenditure by requesting such elimination in
writing to the AUTHORITY or by approving a request by the AUTHORITY to eliminate
the balance of the deferral period. Following any deferral period set forth in
this Section, the AUTHORITY shall have the right to undertake such Deferrable
Capital Expenditure and include the cost thereof in the Authority Requirement
for the calculation of Landing Fees under Section 503 or Apron Fees under
Section 504 pursuant to this Agreement. Absent requests for deferral by a
Majority in Interest of Signatory Airlines and Signatory Cargo Carriers, as
applicable, under the conditions provided herein, AUTHORITY may proceed with the
Deferrable Capital Expenditure and include the cost thereof in the Authority
Requirement for calculation of Landing Fees under Section 503 or Apron Fees
under Section 504.
SECTION 1003. COST OVERRUNS
A cost overrun for a Deferrable Capital Expenditure or any project listed
on Exhibit F shall be treated us a separate Deferrable Capital Expenditure.
However, AIRLINE agrees that in the event that such cost overrun is not the
result of a material change in the project's scope, AIRLINE shall not
unreasonably withhold its approval of the additional expenditure; provided,
however, AUTHORITY has made reasonable and diligent effort to complete the
project as originally defined within the projected cost as originally presented
to the Signatory Airlines, and Signatory Cargo Carriers if applicable.
59
ARTICLE XI
INSURANCE, DAMAGE TO LEASED PROPERTIES AND INDEMNIFICATION
SECTION 1101. INSURANCE
(A) GENERAL. AIRLINE shall provide and maintain adequate insurance in full
force and effect at all times during the term of this Agreement and all
extensions thereto, as set forth below, with limits as hereinafter stated,
insuring against the liabilities set forth below, if AIRLINE does not wish to
provide and maintain insurance coverage for its Affiliated Airlines operating at
the AIRPORT under this Agreement it shall cause such Affiliated Airlines to
provide and maintain such coverage as set forth 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 not be
in amounts less than hereinafter stated.
If any of the insurance is written as "claims made" coverage, then AIRLINE
agrees to keep and cause Affiliated Airlines operating at the AIRPORT under this
Agreement to keep such "claims made" insurance in full force and effect for at
least 5 years after the expiration or termination of this Agreement.
(B) RISKS AND MINIMUM LIMITS OF COVERAGE.
(i) COMMERCIAL GENERAL LIABILITY INCLUDING AIRCRAFT LIABILITY. AIRLINE and
its Affiliated Airlines shall procure and maintain policies of insurance
for commercial general liability insurance. Such insurance shall be in an
amount not less than of One Hundred Million Dollars ($100,000,000) if tile
largest number of available passenger and AIRLINE crew seats on any single
aircraft regularly operated by AIRLINE at the AIRPORT is less than 70
seats, or not less than Two Hundred Million Dollars ($200,000,000) if the
largest number of available passenger and AIRLINE crew seats on any single
aircraft regularly operated by AIRLINE at the AIRPORT is at least 70 seats
In each case, such coverage shall be single limit liability with no annual
aggregate.
(ii) AUTOMOBILE LIABILITY INSURANCE. Five Million Dollars ($5,000,000)
combined single limit per occurrence (for automobiles used by AIRLINE in
the course of its performance under this Agreement, including AIRLINE's
non-owned and hired autos).
(iii) WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE. Workers'
Compensation Insurance and Employer's Liability Insurance in accordance
with
Ohio laws and regulations. With respect to Workers' Compensation
Insurance, if AIRLINE elects to be self-insured, AIRLINE shall comply with
the applicable requirements of law. If any portion of work is to be
subcontracted, AIRLINE shall require the subcontractors similarly to
provide such coverage (or qualify as a self-insured) for all the latter's
employees to be engaged in such work. AIRLINE hereby covenants and agrees
that the AUTHORITY, its officers, or employees will not be liable or
responsible for any claims or actions occasioned by AIRLINE's failure to
comply with the provisions of this subparagraph and that the
indemnification provisions of this Agreement shall apply to this Section.
60
It is expressly agreed that the employees of AIRLINE are not AUTHORITY
employees for any purpose.
(iv) CONTENTS INSURANCE. AIRLINE shall be solely responsible for obtaining
insurance policies that provide coverage for losses of AIRLINE owned
property. The AUTHORITY shall not be required to provide such insurance
coverage or be responsible for payment of AIRLINE's cost for such
insurance.
(v) BUILDERS RISK INSURANCE. During any period of construction or
reconstruction for which AIRLINE contracts, AIRLINE shall carry, or shall
require its contractor or contractors to carry, a policy of Builders Risk
Insurance in an amount sufficient to insure the value of the work. The
AUTHORITY shall he named Loss Payee on Builders Risk coverage to the extent
of the AUTHORITY's interest therein (except to the extent coverage relates
to AIRLINE's equipment and personal property).
(vi) DEDUCTIBLES AND SELF-INSURANCE RETENTION. AIRLINE agrees AUTHORITY may
determine the reasonableness of retention and deductibles applicable to its
coverage at the AIRPORT.
(vii) ALL RISK. Covering AIRLINE improvements, trade fixtures, and
equipment, including fire, lighting, vandalism, and extended coverage
perils. The AUTHORITY shall be named Loss Payee on such coverage to the
extent of the AUTHORITY's interest therein (except to the extent coverage
relates to AIRLINE's equipment and personal property).
(C) OTHER PROVISIONS.
(i) FORM OF POLICIES. The insurance may be in one or more policies of
insurance. Nothing the AUTHORITY does or fails to do shall relieve AIRLINE
from its duties to provide the required coverage hereunder, and the
AUTHORITY's actions or inactions shall not be construed as waiving the
AUTHORITY's rights hereunder,
(ii) ISSUERS OF POLICIES. The issuer of any policy shall be a financially
sound insurance company of recognized responsibility and subject to the
reasonable approval of the AUTHORITY. Such issuer shall be authorized to
cover losses in the State of Ohio,
(iii) INSURED PARTIES. Each policy, except those for Workers' Compensation
and Employer's Liability, shall name the AUTHORITY (and its officers,
agents, and employees) as Additional Insured as its interest may appear, to
the extent of the AIRLINE's indemnification obligations under this
Agreement on the issued certificate of insurance and all renewal
certificates (such certificates to accurately reflect the AUTHORITY'S
Additional Insured status on AIRLINE'S original policies and any renewals
or replacements thereof during the term of this Agreement).
61
(iv) DEDUCTIBLES. Without increasing, decreasing or expanding its duties
under Section 1101(B) hereof, AIRLINE shall assume and bear any claims or
losses to the extent of any deductible amounts and waives any claim it may
ever have for the same against the AUTHORITY, its officers, agents, or
employees; provided, however, that nothing herein stated shall diminish
AIRLINE's rights or increase AIRLINE's obligations in respect to its
undertakings or hold harmless defense and indemnification set forth in
Section 1103 hereof.
(v) CANCELLATION. Each policy shall expressly state that it may not be
cancelled, materially modified or nonrenewed unless 30 days advance written
notice is given in writing to the AUTHORITY by the insurance company.
(vi) AGGREGATES. AIRLINE shall give written notice to the AUTHORITY within
thirty (30) days of the date upon which total claims by any party against
AIRLINE reduce the aggregate amount of coverage below the amounts required
by this Agreement. In the alternative, the policy may contain an
endorsement establishing a policy aggregate for the particular project or
location subject to this Agreement.
(vii) SUBROGATION. Each policy shall contain an endorsement to the effect
that the issuer waives any claim or right in the nature of subrogation to
recover against the AUTHORITY, its officers, agents, or employees.
(viii) ENDORSEMENT OF PRIMARY INSURANCE. Each policy hereunder except
Workers' Compensation shall be primary insurance to any other insurance
available to the Additional Insured and Loss Payee with respect to claims
arising hereunder,
(ix) LIABILITY FOR PREMIUM. AIRLINE shall be solely responsible for payment
of all insurance premiums required hereunder, and the AUTHORITY shall not
be obligated to pay any premiums.
(x) PROOF OF INSURANCE. Within thirty (30) days of the Effective Date of
this Agreement and at any time during the term of this Agreement, AIRLINE
shall furnish the AUTHORITY with certificates of insurance. If reasonably
requested in writing by the AUTHORITY, AUTHORITY shall have the right to
examine AIRLINE's insurance policies.
(D) Notwithstanding the proof of insurance requirements set forth above, it
is the intention of the parties hereto that AIRLINE, continuously and without
interruption, maintain in force the required insurance coverages to be carried
by AIRLINE set forth above.
(E) AUTHORITY RIGHT TO REVIEW AND ADJUST COVERAGE LIMITS. The AUTHORITY
reserves the right at reasonable intervals during the term of this Agreement to
cause the insurance requirements of this Article XI to be reviewed by an
independent insurance consultant experienced in insurance for public airports,
taking into consideration changes in statutory law, court decisions, or the
claims history of the airline industry as well as that of AIRLINE, and, based on
the written recommendations of such
62
consultant, and in consultation with AIRLINE, to reasonably adjust the insurance
coverages and limits required herein but not more often than every twenty-four
months.
SECTION 1102. DAMAGE TO PREMISES
(A) MINOR DAMAGE. If any part of the Leased Premises, or adjacent
facilities directly and substantially affecting the use of the Leased Premises,
shall be partially damaged by fire or other casualty, but said circumstances do
not render the Leased Premises untenantable as determined by the AUTHORITY, the
same shall be repaired to usable condition with due diligence by the AUTHORITY
as provided in this Section 1102.
(B) SUBSTANTIAL DAMAGE. If any part of the Leased Premises, or adjacent
facilities directly and substantially affecting the use of the Leased Premises,
shall be so extensively damaged by fire, or other casualty, as to render any
portion of said Leased Premises untenantable but capable of being repaired, as
determined by the AUTHORITY, the same shall be repaired to usable condition with
due diligence by the AUTHORITY as provided in this Section 1102. In such case,
the rentals payable hereunder with respect to affected Leased Premises shall be
paid up to the time of such damage and shall thereafter be abated ratably in the
proportion that the part of the urea rendered untenantable bears to total Leased
Premises of the same category and area. Such abatement in rent will continue
until such time as such affected Leased Premises shall be restored adequately
for AIRLINE's use. The AUTHORITY shall use its best efforts to provide alternate
facilities to continue AIRLINE's operation while repair, reconstruction, or
replacement is being completed, at a rental rate not to exceed that provided in
this Agreement for comparable space provided that AIRLINE's rental costs shall
not increase as a result of any such alternate facilities unless AIRLINE
requests additional space and/or space replacement of a classification at higher
rental rates concurrent with such reassignment to alternate facilities.
(C) TOTAL DAMAGE.
(i) If any part of the Leased Premises, or adjacent facilities directly and
substantially affecting the use of the Leased Premises, shall be damaged by
fire or other casualty, and is so extensively damaged as to render any
portion of said Leased Premises incapable of being repaired, as determined
by the AUTHORITY, the AUTHORITY shall notify AIRLINE as soon as practicable
under the circumstances after the date of such damage of its decision
whether to reconstruct or replace said space. However, the AUTHORITY shall
be under no obligation to replace or reconstruct such premises. The rentals
payable hereunder with respect to affected Leased Premises shall be paid up
to the time of such damage and thereafter shall cease until such time as
replacement or reconstructed space shall be available for use by AIRLINE.
(ii) In the event the AUTHORITY elects to reconstruct or replace affected
Leased Premises, the AUTHORITY shall use its best efforts to provide
alternate facilities to continue AIRLINE's operation while repair,
reconstruction, or replacement is being completed, at a rental rate not to
exceed that provided in this Agreement for comparable space. However, if
such damaged space shall not have been replaced or reconstructed, or the
AUTHORITY is not diligently pursuing such replacement or reconstruction,
within six months after the date of such damage or destruction, AIRLINE
shall have the right, upon giving the
63
AUTHORITY 30 days advance written notice, to delete the affected Leased
Premises from this Agreement, but this Agreement shall remain in effect
with respect to the remainder of said Leased Promises, unless such damaged
or destroyed premises prevent AIRLINE from operating its Air Transportation
Business at the AIRPORT.
(iii) In the event the AUTHORITY elects not to reconstruct or replace
affected Leased Premises, the AUTHORITY shall meet and consult with AIRLINE
on ways to permanently provide AIRLINE with adequate replacement space for
affected Leased Premises. AIRLINE shall have the right, upon giving the
AUTHORITY 30 days advance written notice, to delete the affected Leased
Premises from this Agreement, but this Agreement shall remain in full force
and effect with respect to the remainder of said Leased Premises, unless
the loss of such premises prevents AIRLINE from operating its Air
Transportation Business at the AIRPORT.
(D) SCOPE OF RESTORATION OF PREMISES.
(i) The AUTHORITY's obligations to repair, reconstruct, or replace affected
premises under the provisions of this Section shall in any event be limited
to using due diligence and best efforts to restore affected Leased Premises
to substantially the same condition that existed prior to any such damage
and shall further be limited to the extent of insurance proceeds available
to the AUTHORITY for such repair, reconstruction, or replacement. AIRLINE
agrees that if the AUTHORITY elects to repair, reconstruct, or replace
affected premises as provided in this Section, then AIRLINE shall proceed
with reasonable diligence and at its sole cost and expense to repair,
reconstruct, or replace its signs, fixtures, furnishings, equipment, and
other items provided or installed by AIRLINE in or about the Leased
Premises in a manner and in a condition at least equal to that which
existed prior to said damage or destruction.
(ii) In lieu of the AUTHORITY's repair, reconstruction, or replacement of
the affected premises, as provided in this Section, if AIRLINE requests to
perform said function with respect to damage under Sections 1102(A) and
1102(B), the AUTHORITY may in its sole discretion, allow AIRLINE to perform
such work. AIRLINE shall not be performing such work as an agent or
contractor of the AUTHORITY. Any such work by AIRLINE must be done in
accordance with the requirements of Section 801. The AUTHORITY shall
reimburse AIRLINE for the cost of such work performed by AIRLINE.
(E) DAMAGE FROM AIRLINE NEGLIGENCE. Notwithstanding the provisions of this
Section, in the event that due to the negligent or willful acts of AIRLINE, its
agents, servants, or employees, or those under its control, Leased Premises
shall be damaged or destroyed by fire, casualty, or otherwise, there shall be no
abatement of rent during the restoration or replacement of said Leased Premises
and AIRLINE shall have no option to delete the affected Leased Premises from
this Agreement under the provisions of this Section. To the extent that the
costs of repairs pursuant to this section shall exceed the amount of any
insurance proceeds payable to the AUTHORITY by reason of such damage or
destruction, AIRLINE shall pay the amount of such additional costs to the
AUTHORITY.
64
SECTION 1103. INDEMNIFICATION
(A) AIRLINE agrees to defend, indemnify, and hold harmless the AUTHORITY,
its past, present and future directors, officers, employees, and agents from and
against any and all loss, liability, penalties, damages of whatever nature,
causes of action, suits, claims, demands, judgments, injunctive relief, awards
and settlements, costs and expenses, including, without limitation, payments of
claims of liability resulting from any injury or death of any person or damage
to or destruction of any property, arising out of or in connection with the
conduct of AIRLINE's Air Transportation Business or the AIRLINE's use of its
Leased Premises or other areas or facilities at the AIRPORT by AIRLINE, its
agents, employees, business invitees, contractors, or subcontractors, including,
but not limited to:
(i) The acts or omissions of AIRLINE, its agents, employees, business
invitees, contractors, or subcontractors;
(ii) AIRLINE's use or occupancy of the AIRPORT and the Leased Premises;
(iii) The violation by AIRLINE in the conduct of AIRLINE's Air
Transportation Business or its use of its Leased Premises or other areas or
facilities at the AIRPORT of any provision, warranty, covenant, or
condition of this Agreement, of any applicable, law, ordinance, regulation,
or court order affecting the AIRPORT, including the AUTHORITY's Rules and
Regulations; and
(iv) Violations or alleged violations of any federal or state laws as a
result of any actions taken by AIRLINE, pursuant to this Agreement.
AIRLINE will, at its own cost and expense, defend all such claims, demands
and suits, whether frivolous or not.
(B) Without limiting the foregoing, AIRLINE also agrees to defend,
indemnify, and hold harmless the AUTHORITY, its past, present and future
directors, officers, agents, and employees:
(i) From and against any and all claims or liability for compensation under
any workers' compensation statute arising out of injuries sustained by any
employee of AIRLINE. AIRLINE shall require by contract that its licensees
and contractors to maintain in effect at all times workers' compensation
insurance as required by law;
(ii) From, and to assume all liability for, and to pay, all applicable
taxes and assessments for payment of which the AUTHORITY may become liable
and which by law may be levied or assessed on the Leased Premises, or which
arise out of the operations of AIRLINE or by reason of AIRLINE's occupancy
of its Leased Premises except for any taxes or assessments based on the
gross or net income or gross or net receipts of the AUTHORITY that are not
allocable to airline-related receipts. However, AIRLINE may, at its own
risk, cost, and expense, and at no cost to the AUTHORITY, contest, by
appropriate judicial or
65
administrative proceedings, the applicability or the legal or
constitutional validity of any such tax or assessment, and the AUTHORITY
will, to the extent permitted by law, execute such documents as are
necessary to permit AIRLINE to contest or appeal the same. AIRLINE shall
be responsible for obtaining bills for all of said taxes and assessments
directly from the taxing authority and shall promptly deliver to the
AUTHORITY, upon request, copies of receipts of payment. In the event the
AUTHORITY receives any tax xxxxxxxx, it will forward said xxxxxxxx to
AIRLINE; and
(iii) From and against any and all suits, claims, actions, or proceedings
alleging a taking of property or interests in property without just
compensation, trespass, nuisance, property damage, personal injury or
similar claims, actions, proceedings or suits based upon the environmental
impacts resulting from AIRLINE'S use of the AIRPORT for the landing and
taking-off of aircraft including noise, smoke, or vibration.
(C) AIRLINE shall defend, indemnify, and hold the AUTHORITY, and its
agents, officers, and employees, completely harmless from and against any claim,
suit, demand, action, liability, loss, damage, judgment, or fine, and all costs
and expenses of whatever kind or nature (including, but not limited to,
reasonable and actual attorney's fees, court costs, investigation expenses, and
expert fees) associated therewith in any way arising from or based upon the
violation of any federal, state, or municipal laws, statutes, resolutions, or
regulations by AIRLINE, its agents, employees, contractors, or tenants, in
conjunction with AIRLINE'S use and/or occupancy of the Leased Premises or its
operations at the AIRPORT.
(D) AIRLINE further agrees that if a prohibited incursion into the air
operations area occurs, or if the Airfield Operations Area or sterile area
security is breached, by or due to the negligence or willful act or omission of
any of AIRLINE'S employees, agents, contractors, and such incursion or breach
results in a civil penalty action against the AUTHORITY, AIRLINE shall assume
the defense of any such action and be responsible for any civil penalty or
settlement amount required to be paid by the AUTHORITY as a result of such
incursion or breach. The AUTHORITY shall notify AIRLINE of any allegation,
investigation, or proposed or actual civil penalty sought for such incursion or
breach. Civil penalties and settlement and associated expenses reimbursable
under this paragraph include but are not limited to those paid or incurred as a
result of violation of FAA Federal Aviation Regulation Part 000, "Xxxxxxx
Xxxxxxxx," FAA Federal Aviation Regulation Part 108, "Airplane Operator
Security," and FAA Federal Aviation Regulation Part 139, "Certification and
Operations: Land Airports Serving Certain Air Carriers."
(E) AIRLINE'S obligation to defend and indemnify past directors, officers
and employees of the AUTHORITY shall apply to such persons only for such periods
during which said directors, officers and employees held their office or
position with the AUTHORITY.
(F) The AUTHORITY shall promptly notify AIRLINE of each claim, action,
proceeding, or suit in respect of which indemnity may be sought by the AUTHORITY
against AIRLINE hereunder, setting forth the particulars of such claim, action,
proceeding or suit, and shall furnish AIRLINE with a copy of all judicial
filings and legal process and any correspondence received by the AUTHORITY
related thereto.
66
(G) The duty to defend, indemnify, hold harmless, and reimburse shall apply
to any claim, demands, or suits made against the AUTHORITY, whether or not
meritorious for which AIRLINE is responsible pursuant to Section 1103. Provided,
however, that upon the filing by anyone of a claim with the AUTHORITY for
damages arising out of incidents for which AIRLINE herein agrees to indemnify
and hold the AUTHORITY harmless, the AUTHORITY shall promptly notify AIRLINE of
such claim and, in the event that AIRLINE does not settle or compromise such
claim, then AIRLINE shall undertake the legal defense of such claim both on
behalf of AIRLINE and on behalf of the AUTHORITY. It is specifically agreed,
however, that the AUTHORITY, at its option and at its own expense, may
participate in the legal defense of such claim. Any final judgment rendered
against the AUTHORITY for any cause for which AIRLINE is liable hereunder shall
be conclusive against AIRLINE as to amount upon the expiration of the time for
appeal therefrom. In the event the AUTHORITY shall fail to give AIRLINE notice
of any such demand, notice, summons, or other process received by the 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 XI shall be deemed a
change or modification in any manner whatsoever of the method or conditions of
preserving, asserting, or enforcing arty claim of legal liability against the
AUTHORITY. This Section 1103 shall not be construed as a waiver of the
AUTHORITY's immunity.
(H) The AUTHORITY, at its own expense except as otherwise provided herein,
shall be invited to attend and participate in all meetings (including those
related to settlement) and to appear and participate in all judicial proceedings
and to the extent of its interests, approve, in writing, the terms of any
settlement related to any claim, action, proceeding or suit set forth in (his
Section.
(I) Notwithstanding the provisions of this Section, AIRLINE shall have no
obligation to indemnify the AUTHORITY for any amounts to be paid in connection
with losses, liabilities, penalties, damages of whatever nature, causes of
action, suits, claims, demands, injunctive relief, judgments, awards and
settlements to the extent such are the result of the AUTHORITY's negligence or
willful misconduct.
(J) This Section shall survive the expiration or early termination of this
Agreement. AIRLINE understands and agrees that any insurance protection
furnished by AIRLINE pursuant to Section 1101 shall in no way limit AIRLINE's
responsibility to indemnify and hold harmless the AUTHORITY under the provisions
of this Agreement.
SECTION 1104. AUTHORITY NOT LIABLE
The AUTHORITY shall not in any event be liable for any acts or omissions of
AIRLINE, its officers, agents, employees, invitees, and independent contractors,
or for any conditions resulting from the operations or activities of any such
lessee, tenant, or concessionaire, AIRLINE officers, employees, invitees, or
independent contractors, or for any conditions resulting from the operations or
activities of AIRLINE's officers, agents, employees, invitees, or independent
contractors either to AIRLINE or to any other person. The 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. AIRLINE expressly agrees
that the AUTHORITY shall not be liable to AIRLINE, for bodily injury or for any
loss or damage to real or personal property occasioned by flood, fire,
earthquake, lightning, windstorm, hail, explosion, riot, strike, civil
commotion, smoke,
67
vandalism, malicious mischief, or acts of civil authority and not caused by the
negligence or willful acts or omissions of the AUTHORITY.
68
ARTICLE XII
MERGERS, ASSIGNMENT AND SUBLETTING
SECTION 1201. AIRLINE MERGERS AND CONSOLIDATIONS
If AIRLINE consolidates with or merges into another corporation or permits
one or more other corporations to consolidate with or merge into it, or
transfers or conveys all or substantially all of its property, assets and
licenses to another corporation, the corporation resulting from or surviving
such merger (if other than AIRLINE) or consolidation or the corporation to which
such transfer or conveyance is made shall (a) expressly assume in writing and
agree to perform all of AIRLINE's obligations hereunder, (h) he qualified to do
business in the State of Ohio, and (c) if such corporation shall not be
organized and existing under the laws of the United States of America or any
state or territory thereof or the District of Columbia, furnish to the AUTHORITY
an irrevocable consent to service of process in, and to the jurisdiction of the
courts of, the State of Ohio with respect to any action or suit, in law or at
equity, brought by the AUTHORITY to enforce this Agreement. If AIRLINE is the
surviving corporation in such a merger, the express assumption referred to in
the preceding sentence shall not be required.
SECTION 1202. ASSIGNMENT OR SUBLETTING
AIRLINE shall not assign, transfer, convey, sell, mortgage, pledge, or
encumber (hereinafter collectively referred to as "Assignment") or sublet its
Leased Premises without the advance approval of the AUTHORITY. If AIRLINE fails
to obtain advance approval of any such assignment or sublease or the AUTHORITY,
in addition to the rights and remedies set forth in Article XIII, shall have the
right to refuse to recognize such agreement, and the assignee or sublessee shall
acquire no interest in this Agreement or any rights to use the Leased Premises.
SECTION 1203. AUTHORITY APPROVAL OF ASSIGNMENTS
(A) Without in any manner limiting AUTHORITY's general right to approve
assignments, it shall not be unreasonable for the AUTHORITY to disapprove or
condition an assignment of AIRLINE's Leased Premises on any or all of the
following circumstances, among others:
(i) The assignment is for less than the full remainder of the term of this
Agreement.
(ii) The assignment does not require the assignee to accept and comply with
all provisions of the Agreement, including but not limited to accepting
Signatory Airline status.
(B) Notwithstanding the foregoing, this Section shall not be interpreted to
preclude or to require the AUTHORITY's approval of the assignment of this
Agreement and AIRLINE's rights and obligations hereunder to a parent,
subsidiary, or merged company if such parent, subsidiary, or merged company
conducts an Air Transportation Business at the AIRPORT and assumes all rights
and obligations hereunder. Written notice of such assumption shall be provided
by the parent, subsidiary, or merged company 30 days prior to the effective date
of such assignment.
69
SECTION 1204. AUTHORITY APPROVAL OF SUBLEASES
(A) Without in any manner limiting AUTHORITY's general right to approve
subleases, it shall not be unreasonable for the AUTHORITY to disapprove or
condition a sublease of AIRLINE's Leased Premises on any or all of the following
circumstances, among others:
(i) If a Signatory Airline, including a Signatory Airline which is not
leasing space directly from the AUTHORITY because of the unavailability of
such space, is, in the determination of the AUTHORITY, in need of tile
Leased Premises proposed to be subleased; provided, however, that such
Signatory Airline is willing to take such Leased Premises on substantially
the same terms and conditions as proposed in the sublease and is willing to
provide AIRLINE with a reasonable security deposit not to exceed 3 month's
rentals, fees, and charges
(ii) If the AUTHORITY determines that there is available space and/or
Passenger Holdrooms for lease directly from the AUTHORITY by the proposed
sublessee or if the sublease does not contain a provision which permits it
to be terminated upon notice from the AUTHORITY to the parties thereto of
the availability of AUTHORITY controlled space, provided that this
paragraph shall not apply to Airlines which are code shares.
SECTION 1205. METHOD OF OBTAINING APPROVAL
AIRLINE, when requesting an approval of an assignment or sublease under
Section 1202, shall include with its request a copy of the proposed agreement,
if prepared, or a detailed summary of the material terms and conditions to be
contained in such agreement. Any proposed agreement or detailed summary thereof
shall provide the following information: (a) the Leased Premises to be assigned
or sublet; (b) the terms; (c) if a sublease, the rentals and fees to be charged;
and (d) all material terms and conditions of the assignment or sublease the
AUTHORITY may reasonably require. If approved, AIRLINE shall submit a fully
executed copy of such agreement to the AUTHORITY within 30 days after the
commencement of the assignment or sublease.
SECTION 1206. ADMINISTRATIVE CHARGE
In the event AIRLINE is authorized by the AUTHORITY to sublease any portion
of its Leased Premises, AIRLINE may charge such sublessee, in addition to a
reasonable charge for any services and AIRLINE-owned property provided by
AIRLINE or actual costs other than rental costs incurred by AIRLINE, reasonable
rentals not to exceed one hundred fifteen percent (115%) of AIRLINE's rentals
for such portion of the Leased Premises.
SECTION 1207. AIRLINE TO REMAIN LIABLE
AIRLINE shall remain fully and primarily liable during the term of this
Agreement for the payment of all of the rentals due and payable to the
AUTHORITY for the Leased Premises that are subject to an assignment or a
sublease under Article XII, and fully responsible for the performance of all the
other obligations hereunder, unless otherwise agreed to by the AUTHORITY.
70
ARTICLE XIII
DEFAULT, TERMINATION AND CHANGE OF LEASE TERM
SECTION 1301. EVENTS OF DEFAULT
Each of the following shall be an "Event of Default" under this Agreement:
(A) AIRLINE fails to punctually pay when due any PFC, Rentals, Fees,
Charges, Supplemental Charge, or any other sum required to be paid hereunder,
and such failure continues for a period of 10 business (lays after written
notice of non-payment has been given to AIRLINE by the AUTHORITY.
(B) AIRLINE shall fail to keep, perform and observe any material promise,
covenant or other provision of this Agreement for a period of 30 days after
written notice specifying such failure by the AUTHORITY; provided, however, that
any such failure which can be remedied, but which cannot with due diligence he
remedied within such 30 day period, shall not give rise to the AUTHORITY'S right
to terminate this Agreement if corrective action is instituted by AIRLINE within
such 30 day period and diligently pursued until the failure is remedied.
(C) AIRLINE shall discontinue its Air Transportation Business at the
AIRPORT for a period of 30 consecutive days or, after exhausting or abandoning
any further appeals. AIRLINE shall be prevented for a period of 30 consecutive
days by action of any governmental agency other than the AUTHORITY from
conducting its Air Transportation Business at the AIRPORT.
(D) AIRLINE shall cease using or abandon substantially all of its Leased
Premises for a period of 30 days.
(E) AIRLINE shall fail to meet any of the Security Deposit requirements set
forth in Section 605.
(F) AIRLINE shall fail to make its Preferential Use Premises available for
use by other AIRLINEs as required pursuant to Article IV on more than 2
instances after written notice by the AUTHORITY or for a period of 30 days after
written notice specifying such failure by the AUTHORITY.
(G) AIRLINE shall fail to maintain the minimum required insurance coverage
as required by Section 1101 for a period of 30 days after written notice
specifying such failure by the AUTHORITY, provided that the AUTHORITY shall have
the right to immediately suspend AIRLINE'S right to operate at the AIRPORT until
AIRLINE has obtained the minimum required insurance coverage.
(H) AIRLINE shall become insolvent (as such term is defined under Section
101 of the Federal Bankruptcy Code, II U.S.C. 101 et seq. (the "Code"), or any
successor statute thereto); or shall fail to pay its debts generally as they
mature; or shall take the benefit of any present or future federal or state
insolvency statue; or shall make a general assignment for the benefit of
creditors.
71
(I) AIRLINE shall file a voluntary petition in bankruptcy or a petition or
answer seeking an arrangement of its indebtedness under the Code or under any
other law or statute of the United States or of any state thereof; or consent to
the appointment of a receiver, trustee, custodian, liquidator, or other similar
official, of all or substantially all of its property; or an order for relief
shall be entered by or against AIRLINE under any chapter of the Code.
(J) By order or decree of a court, AIRLINE shall be adjudged a debtor or
bankrupt or an order shall he made approving a petition filed by any of its
creditors or by any of its stockholders, seeking its reorganization or the
restructuring of its indebtedness under the Code or under any other law or
statute of the United States or any state thereof and such order or decree shall
not be stayed or vacated within 60 days of its issuance.
(K) A petition under any chapter of the Code or an action under any federal
or state insolvency law or statute law shall be filed against AIRLINE and shall
not be dismissed or stayed within 60 days after the filing thereof.
(L) By or pursuant to, or under authority of any legislative act,
resolution, or rule, or any order or decree of any court or governmental board,
agency or officer, a receiver, trustee, custodian, liquidator, or other similar
official shall take possession or control of all or substantially all of the
property of AIRLINE and such possession or control shall continue in effect for
a period of 60 days.
(M) AIRLINE shall become a corporation in dissolution.
(N) If any of AIRLINE's Leased Premises is financed in whole or in part
with PFC revenue, and any portion of AIRLINE'S existing exclusive use facilities
is not fully utilized and is not made available for use by potentially competing
air carriers or foreign air carriers.
(O) The letting, license, or other interest of or rights of AIRLINE
hereunder shall be transferred to, pass to or devolve upon, by operation of law
or otherwise, any other person, firm, corporation, or other entity, by, in
connection with or as a result of any bankruptcy, insolvency, trusteeship,
liquidation, or other proceedings or occurrence described in subparagraphs (A)
through (M) of this Section 1301.
(P) The assignment or subletting of premises which is not approved by the
AUTHORITY in accordance with the provisions of Article XII and the failure to
nullify such assignment or subletting within a period of 30 days after written
notice specifying such failure by the AUTHORITY.
SECTION 1302. TERMINATION BY THE AUTHORITY
(A) Whenever an Event of Default has occurred, the AUTHORITY may, at its
option, immediately and without further notice of such Event of Default:
(i) Terminate this Agreement and the lettings, licenses, and other rights
of AIRLINE hereunder, without discharging any of AIRLINE's obligations
hereunder and, at the AUTHORITY's further option, exclude AIRLINE from its
Leased Premises. In the event AIRLINE uses, occupies, or fails to surrender
or remove its property from its Leased Premises, or any portion thereof,
without the
72
written consent of the AUTHORITY after this Agreement has been terminated
or expires, AIRLINE may be deemed a tenant at sufferance during the period
of such use or failure and, in such event, AIRLINE shall pay the rate for
rentals, fees, and charges established by the AUTHORITY for Airlines which
are not Signatory Airlines during such period. In such event, the
AUTHORITY shall have, in addition to whatever other rights are available to
the AUTHORITY, the right to all remedies provided under applicable laws,
and reasonable costs, disbursements, and attorney fees including
consequential damages incurred as a result of the holdover.
(ii) Without terminating this Agreement, exclude AIRLINE from its Leased
Premises and use its best efforts to lease such Leased Premises to another
airline with any rentals received credited to the amounts owed by AIRLINE,
minus a fifteen percent (15%) administrative fee of all sublease rentals
received, holding AIRLINE liable for all Rentals, Fees, and Charges and
other payments due hereunder up to the effective date of such leasing and
for the excess, if any, of the Rentals, Fees, and Charges and other amounts
payable by AIRLINE under this Agreement for the remainder of the term of
this Agreement over the rentals and other amounts which are paid by such
new airline under such new agreement.
(iii) In addition, the AUTHORITY may, from time to time, take whatever
action at law or in equity appears necessary or desirable to collect
Rentals, Fees, and Charges and any other amounts payable by AIRLINE
hereunder then due and thereafter to become due, and to enforce the
performance and observance of any obligation, agreement or covenant of
AIRLINE under this Agreement.
(B) In the event of an Event of Default, the AUTHORITY may exercise any and
all of the rights provided to it in this Section 1302 irrespective of any
subsequent cure by AIRLINE, unless otherwise mutually agreed by AIRLINE and
AUTHORITY.
(C) The remedies set forth in this Article, shall be in addition to all
other remedies which are or may be available to the AUTHORITY at law or in
equity.
(D) All rights and remedies hereinbefore given to the AUTHORITY and all
rights and remedies given to the AUTHORITY by law, shall be cumulative and
concurrent. No termination of this Agreement or the taking or recovering of the
Leased Premises shall deprive the AUTHORITY of any of the AUTHORITY's remedies
or actions against AIRLINE for rentals, fees, and charges or for damages or for
the breach of any covenant herein contained, nor shall the bringing of any
action for rentals, fees, and charges or breach of covenant, or the resort to
any other remedy herein provided for the recovery of rentals, fees, and charges
be construed as a waiver of the right to obtain possession of the Leased
Premises.
(E) In no event shall this Agreement or any rights or privileges hereunder
be an asset of AIRLINE under any bankruptcy, insolvency, or reorganization
proceedings.
73
SECTION 1303. CHANGE OF LEASE TERM
(A) Notwithstanding the provisions of Section 201, automatically and
immediately upon the occurrence of an Event of Default described in Section 1301
(H), (I), (J), (K), (L) or (M), the term of this Agreement shall convert to
month-to-month, commencing on the date of the automatic conversion and in
addition to its rights under Article XIII either party shall have the right to
terminate the Agreement upon 30 days written notice from the AUTHORITY to
AIRLINE, or from AIRLINE to the AUTHORITY.
(B) The conversion of the term of this Agreement pursuant to this Section
1303 shall not discharge any of AIRLINE's obligations hereunder nor affect any
of the AUTHORITY's other remedies set forth herein.
SECTION 1304. TERMINATION BY AIRLINE
(A) At any time that AIRLINE is not in default hereunder, AIRLINE may
terminate this Agreement and its obligations hereunder to the extent set forth
below, at AIRLINE's option, prior to the scheduled expiration date set forth in
Section 201, by giving the AUTHORITY 60 days' advance written notice by
registered or certified mail upon or after the happening and during the
continuance of any of the following events:
(i) Any action of the Federal Aviation Administration or any other federal,
state, county, or municipal governmental agency refusing to permit AIRLINE
to operate into, from, or through the AIRPORT such aircraft (licensed for
use in scheduled air transportation) as AIRLINE has previously operated
regularly thereon, and the remaining in force of such refusal for a period
of at least 60 days; provided however, that this provision shall not apply
if occasioned by AIRLINE's failure to comply with airworthiness or noise
standards for such aircraft as promulgated by FAA;
(ii) Any failure by the AUTHORITY to keep, perform and observe any material
promise, covenant, or other provision of this Agreement for a period of 30
days after written notice specifying such failure and requesting that it be
remedied is given to the AUTHORITY by AIRLINE; provided, however, that any
such failure which can be cured, but which cannot with due diligence be
cured within such 30 day period, shall not give rise to AIRLINE's right to
terminate this Agreement if corrective action is instituted by the
AUTHORITY within such 30 day period and diligently pursued until the
failure is corrected; or
(iii) AIRLINE is prevented from conducting its Air Transportation Business
at the AIRPORT for a period in excess of 60 consecutive days for any reason
other than causes directly controlled by AIRLINE.
74
ARTICLE XIV
SURRENDER OF PREMISES
SECTION 1401. SURRENDER OF PREMISES
(A) SURRENDER OF PREMISES. AIRLINE covenants and agrees that on expiration
of the term of this Agreement, or earlier termination as hereinafter provided,
or on reassignment or reallocation of the Leased Premises as provided herein, it
will peaceably surrender possession of the Leased Premises, and other space made
available to AIRLINE hereunder in a clean, sanitary, and good condition,
reasonable wear and tear taking into account maintenance required to be done by
AIRLINE, and acts of God, fire, and other casualties excepted, and the AUTHORITY
shall have the right to take possession of said Leased Premises and other space
made available to AIRLINE hereunder. The AUTHORITY shall not be required to give
notice to quit possession at the expiration date of the term of this Agreement.
(B) REMOVAL OF PERSONAL PROPERTY. Provided AIRLINE is not in default for
payment of Rentals, Fees, Charges, PFCs, or any other payment due hereunder,
AIRLINE shall have the right, on expiration or early termination of this
Agreement and within 30 days thereafter, to remove or dispose of all trade
fixtures and equipment and other personal property installed or placed by
AIRLINE, in, on, or about the AIRPORT; provided, however, that the AUTHORITY
reserves the right to purchase from AIRLINE its ticket counter inserts and
baggage conveyors at AIRLINE's netbook value of such inserts and conveyors at
fair market value as of the date of such expiration or early termination.
AIRLINE shall not be entitled to remove non-trade fixtures without the advance
written consent of the AUTHORITY.
(C) REMOVAL DAMAGES. In the event AIRLINE removes its trade fixtures and
equipment and other personal property and/or is allowed to remove its non-trade
fixtures and removes such fixtures, AIRLINE shall repair any damage caused by
such removal. Removal shall be at AIRLINE's expense. Notwithstanding the above,
consideration shall be given to the intended long-term use of the Premises and
in the event it is determined that such Premises shall not be maintained for a
period warranting the repairs indicated above, AIRLINE's requirement to perform
such may be reduced or eliminated by AUTHORITY. In the event the Leased Premises
are yielded or delivered to the AUTHORITY in need of repair, reconditioning, or
restoration to its original condition (reasonable wear and tear taking into
account maintenance required to be done by AIRLINE excepted), after reasonable
notice to AIRLINE, the AUTHORITY shall repair or recondition said excepted
Leased Premises and the cost thereof will be invoiced to AIRLINE as provided in
Section 704. The AUTHORITY shall determine the condition of the Leased Premises
at the termination of this Agreement by expiration or otherwise.
(D) OWNERSHIP OF FIXTURES NOT REMOVED. In the event AIRLINE fails to remove
its property, in addition to whatever other rights are available to the
AUTHORITY, with prior notification of AIRLINE the AUTHORITY shall have the
options of (a) removing, selling, or storing AIRLINE property at AIRLINE's
expense, or (b) taking title to AIRLINE property in lieu of removal on behalf of
AIRLINE. In the event the AUTHORITY takes title to such property or otherwise
disposes of the property, the AUTHORITY shall be entitled to all proceeds of
sale of such AIRLINE property as liquidated damages for the breach of this
covenant to remove.
75
ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 1501. RELATIONSHIP OF PARTIES
Nothing herein contained is intended or shall be construed to in any
respect create or establish any relationship other than that of lessor and
lessee, and nothing herein shall be construed to establish any partnership,
joint venture or association or to make AIRLINE the general representative or
agent of the AUTHORITY for any purpose whatsoever.
SECTION 1502. AMENDMENT
Except as otherwise expressly provided herein, this Agreement, including
the attached exhibits and endorsements, may not be changed, modified,
discharged, or extended except by written amendment duly executed by the
parties.
SECTION 1503. SUBORDINATION TO BOND ORDINANCE
(A) This Agreement and all rights granted to AIRLINE hereunder, are
expressly subordinated and subject to the lien and provisions of the pledges,
transfer, hypothecation, or assignment made by the AUTHORITY in any Trust
Indenture executed by the AUTHORITY to issue Bonds. The AUTHORITY expressly
reserves the right to make such pledges and grant such liens and enter into
covenants as it may deem necessary or desirable to secure and provide for the
payment of Bonds, including the creation of reserves therefor, provided that the
AUTHORITY shall not take any actions that would he inconsistent with the term
and conditions of this Agreement.
(B) AIRLINE understands that the AUTHORITY is and will be the issuer of
Bonds. With respect to Bonds that may be issued in the future, the interest on
which is intended to be excludable from gross income from the holders of such
Bonds for Federal income tax purposes under the Internal Revenue Code of 1986,
AIRLINE agrees that it will not act, or fail to act (and will immediately cease
and desist from any action, or failure to act) with respect to the use of the
Leased Premises, if the act or failure to act may cause the AUTHORITY to be in
noncompliance with the provisions of the Internal Revenue Code of 1986 as they
now exist or may be amended, supplemented, or replaced, or the regulations or
rulings issued thereunder, nor will AIRLINE take, or persist in, any action or
omission which may cause the interest on the tax-exempt Bonds either (a) not to
be excludable from the gross income of the holders thereof for Federal income
tax purposes; or (b) to become subject to the alternative minimum tax (the AMT)
for Federal income tax purposes.
SECTION 1504. CERTIFICATE IN CONNECTION WITH ISSUANCE OF BONDS
AIRLINE agrees that in connection with any issuance of Bonds by the
AUTHORITY, upon not less than 30 days prior written request by the AUTHORITY,
AIRLINE will deliver to the AUTHORITY a statement in writing certifying:
(i) That this Agreement is unmodified and in full force and effect (or if
there have been modifications, a description of such modifications and that
the Agreement as modified is in full force and effect);
76
(ii) That to the AIRLINE's knowledge the AUTHORITY is not in default under
any provision of this Agreement, or, if in default, the nature thereof in
detail; and
(iii) Such further matters as may be reasonably requested by the AUTHORITY,
it being intended that any such statement may be relied upon by the parties
involved in such issuance of Bonds.
SECTION 1505. NO THIRD PARTY BENEFICIARIES
This Agreement is for the sole benefit of the parties hereto and their
permitted assigns and nothing herein expressed or implied shall give or be
construed to give to any person or entity (including other Signatory Airlines)
other than the parties hereto and their assigns any legal or equitable rights
hereunder.
SECTION 1506. COUNTERPARTS
This Agreement may be executed in one or more counterparts.
SECTION 1507. EXHIBITS
All certificates, documents, exhibits, attachments, riders, and addenda
referred to in this Agreement, including but not limited to the exhibits
referred to in this Agreement, are hereby incorporated into this Agreement by
reference and made a part hereof as though set forth in full in this Agreement
to the extent they are consistent with its conditions and terms.
SECTION 1508. SURVIVAL OF WARRANTIES
All warranties and covenants set forth in this Agreement shall survive the
execution and performance of this Agreement.
SECTION 1509. QUIET ENJOYMENT
The AUTHORITY agrees that, upon payment of all amounts due hereunder and
performance of the covenants and agreements on the part of AIRLINE to be
performed hereunder, the AUTHORITY shall not act or fail to act, except as
otherwise provided by this Agreement, in a manner that will prevent AIRLINE from
peaceably having and, in accordance with the terms hereof, enjoying the Leased
Premises and all rights, licenses, services, and privileges of the AIRPORT and
its appurtenances and facilities granted herein.
SECTION 1510. NO PERSONAL LIABILITY
(A) The AUTHORITY shall not be liable for any acts or omissions of any
airline or any condition resulting from the operations or activities of tenants
or their representatives.
77
(B) No director, officer, employee, or agent of the AUTHORITY or AIRLINE
shall be charged personally or held contractually liable by or to the other
party under any term or provision of this Agreement or because of any breach
hereof or because of its or their execution of this Agreement.
SECTION 1511. AGREEMENTS WITH THE UNITED STATES
(A) GOVERNMENT INCLUSION. AIRLINE covenants and agrees that this Agreement
shall be subordinated to the provisions of any existing or future agreement
between the AUTHORITY and the United States Government or governmental
authority, relative to the operation or maintenance of the AIRPORT, the
execution of which has been or will be required as a condition precedent to the
granting of federal funds or the approval to impose or use PFCs for the
improvement or development of the AIRPORT. AIRLINE further agrees that it shall
not cause the AUTHORITY to violate any assurances made by the AUTHORITY to the
federal government in connection with the granting of such federal funds or the
approval of such PFCs.
(B) FEDERAL GOVERNMENT'S EMERGENCY CLAUSE. All provisions of this Agreement
shall be subordinate to the rights of the United States of America to operate
all of the AIRPORT or any part thereof during time of war or national emergency.
Such rights shall supersede any provisions of this Agreement inconsistent with
the operation of the AIRPORT by the United States of America.
SECTION 1512. GOVERNING LAW
This Agreement is made and entered into in Franklin County, Ohio and Ohio
law shall govern and apply to this Agreement. In the event of a dispute or
disputes between the parties hereto, and in the event litigation is instituted,
such litigation shall be commenced only in a federal or state court in Franklin
County, Ohio. AIRLINE hereby consents to the jurisdiction and venue of such
courts and waives personal service of any and all process upon the AIRLINE
herein, and consents that all such service of process shall be made by certified
mail, return receipt requested, directed to AIRLINE at the address herein
stated, and service so made shall be completed 7 days after the same shall have
been posted as aforesaid.
SECTION 1513. NOTICES
Except as otherwise expressly provided hereunder, all notices and other
communications provided for under this Agreement shall be in writing and shall
be mailed via certified mail return-receipt requested, telecopied (with
confirmation of transmission) or personally delivered to the AUTHORITY and
AIRLINE at the following addresses:
If to the AUTHORITY, to:
Executive Director
Columbus Municipal Airport Authority
Port Columbus International Airport
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxx 00000
Telecopy (000) 000-0000
78
With a copy to General Counsel, same address.
If to AIRLINE, to:
------------------------
------------------------
------------------------
------------------------
or to such other person or address as either the AUTHORITY or AIRLINE may
hereafter designate by notice to the other in accordance with this Section 1513.
Except as otherwise expressly provided hereunder, any notice or communication
under this Agreement shall be deemed to have been given or made: (a) if a
messenger or courier service is used, when delivered to the addressee; (b) if
sent by certified mail, 5 days after being deposited in the mails, postage
prepaid and properly addressed; or (c) if sent by telecopy, the earlier of (l)
actual receipt by addressee and (2) 24 hours after confirmation of transmission.
SECTION 1514. ENTIRE AGREEMENT
This Agreement, including the attached exhibits, embodies the entire
agreement between the AUTHORITY and AIRLINE relating to the subject matter
hereof, and supersedes all prior agreements and understandings, written or oral,
express or implied, between the AUTHORITY and AIRLINE relating thereto.
SECTION 1515. FORCE MAJEURE
(A) Neither party hereto shall be liable to the other for any failure,
delay, or interruption in performing its obligations hereunder to the extent due
to acts, events or conditions beyond its control, including, but not limited to,
acts of God, weather conditions, shortages of energy or materials, embargoes,
riots, rebellions, sabotage, acts of a public enemy, war, blockade,
insurrection, strikes, boycotts, picketing, slow-downs, work stoppages or other
labor actions affecting the rights or obligations of the AUTHORITY or AIRLINE
hereunder, their respective contractors or subcontractors, except to the extent
that such failure, delay or interruption directly or indirectly results from
failure on the part of the AUTHORITY or AIRLINE to use reasonable care to
prevent, or make reasonable efforts to cure, such failure, delay or
interruption; provided, however, that, except as herein specifically provided,
nothing in this Section is intended or shall be construed to xxxxx, postpone or
in any respect diminish AIRLINE's obligations to make any payments due to the
AUTHORITY pursuant to this Agreement.
(B) The AUTHORITY shall be under no obligation to supply any service if and
to the extent and during any period that the supplying of any such service or
the use of any component necessary therefor shall be prohibited or rationed by
any law, ordinance, rule, regulation, requirement, order or directive of any
federal, state, county or municipal government having jurisdiction.
79
SECTION 1516. INVALID PROVISIONS
In the event any covenant, condition, or provision herein is held to be
invalid, illegal, or unenforceable by any court of competent jurisdiction, such
covenant, condition, or provision shall be deemed amended to conform to
applicable laws so as to be valid or enforceable or, if it cannot be so amended
without materially altering the intention of the parties, it shall be stricken.
If stricken, all other covenants, conditions and provisions of this Agreement
shall remain in full force and effect provided that the striking of such
covenants, conditions or provisions does not materially prejudice either the
AUTHORITY or AIRLINE in its respective rights and obligations contained in the
valid covenants, conditions, or provisions of this Agreement.
SECTION 1517. NO WAIVER
No provision of this Agreement shall be deemed to have been waived by
either party unless such waiver is in writing, signed by the party making the
waiver and addressed to the other party, nor shall any custom or practice which
may evolve between the parties in the administration of the terms of this
Agreement be construed to waive or lessen the right of either party to insist
upon the performance of the other party in strict accordance with the terms of
this Agreement.
SECTION 1518. CONSTRUCTION OF AGREEMENT
The parties hereto acknowledge that they have thoroughly read this
Agreement, including any exhibits or attachments hereto and have sought and
received whatever competent advice and counsel was necessary for them to form a
full and complete understanding of all rights and obligations herein. The
parties further acknowledge that this Agreement is the result of extensive
negotiations between the parties and shall not be construed against the
AUTHORITY by reason of the preparation of this Agreement by the AUTHORITY.
SECTION 1519. AVIATION RIGHTS
The AUTHORITY reserves unto itself, its successors and assigns, for the use
and benefit of the public, a right of flight for the passage of aircraft in the
airspace above the surface of the AIRPORT, including but not limited to
AIRLINE's Leased Premises, for navigation or fight in said airspace for landing
on, taking off from, or operating at the AIRPORT.
SECTION 1520. SECURITY
AIRLINE shall supervise, or cause to be supervised, all persons lawfully
present on its loading bridges, persons traveling within secured areas directly
to or from AIRLINE's aircraft, persons traveling on buses or similar vehicles
operated by AIRLINE, and on all paths, walkways, and areas within secured areas
used by the passengers to move between the Terminal Building and AIRLINE's
aircraft.
80
SECTION 1521. TIMING
The parties expressly agree that time is of the essence in this Agreement.
Failure by a party to complete performance within the time specified, or within
a reasonable time if no time is specified herein, shall relieve the other party,
without liability, of any obligation to accept such performance.
SECTION 1522. REPRESENTATIVES
The AUTHORITY and AIRLINE shall each designate a representative who, except
as otherwise provided hereunder, shall be authorized to act for the AUTHORITY
and AIRLINE, respectively, with respect to any actions to be taken by either of
them under the terms of this Agreement. Except as specifically set forth herein,
for the purposes of actions to be taken by it or by the AUTHORITY, the
AUTHORITY's representative shall be the Executive Director. The AIRLINE's
representative shall be designated in a written notice delivered to the
AUTHORITY. Any party hereto may change its designated representative by notice
to the other party.
SECTION 1523. APPROVALS
(A) Whenever in this Agreement any approval is required from AIRLINE, such
decision shall be promptly rendered and shall not be unreasonably withheld or
conditioned. No disapproval shall be valid if such disapproval constitutes an
anticompetitive act as described by a federal agency having jurisdiction over
such matters.
(B) Wherever in this Agreement the approval of the AUTHORITY is required,
such approval may be given by the Executive Director, shall be promptly rendered
and shall not be unreasonably withheld except as otherwise expressly provided
herein.
(C) In all instances in this Agreement where consent or approval of one
party is required for an action by the other party, such consent shall be in
writing unless otherwise agreed by the parties.
SECTION 1524. PROHIBITION AGAINST EXCLUSIVE RIGHTS
It is hereby specifically understood and agreed that nothing herein
contained shall be construed to grant or authorize the granting of an exclusive
right to provide aeronautical services to the public as prohibited by
Section 308(a) of the Federal Aviation Act of 1958, as amended, and the
AUTHORITY reserves the right to grant to others the privileges and right of
conducting any or all activities of an aeronautical nature.
SECTION 1525. SUCCESSORS AND ASSIGNS
BINDING EFFECT. The terms, conditions, and covenants of this Agreement
shall inure to the benefit of, and be binding upon, the parties hereto and upon
their successors, assigns and sublessees, if any. This provision shall not
constitute a waiver of any conditions regarding assignment or subletting
contained in this Agreement.
81
SECTION 1526. AUTHORITY TO EXECUTE
The person(s) executing this Agreement on behalf of AIRLINE warrants to the
AUTHORITY that AIRLINE is a duly authorized and existing corporation, that
AIRLINE is qualified to do business in the State of Ohio, that AIRLINE has full
right and authority to enter into this Agreement, and that each and every person
signing on behalf of AIRLINE is authorized to do so.
82
IN WITNESS WHEREOF, the Columbus Municipal Airport Authority has caused its
name to be subscribed to these present by Xxxxx Xxxxxxx, Executive Director of
the Columbus Municipal Airport Authority, duly authorized by Resolution No.
51-99, passed November 23, 1999, and Chautauqua has caused this instrument to be
executed on its behalf by___________, its___________, all as of the day and year
first above written.
Signed in the presence of:
CHAUTAUQUA
/s/ [ILLEGIBLE]
-------------------------
Witness
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE] 9/29/00
------------------------- --------------------------------------
Witness Date
VP - CUSTOMER SERVICE
CHAUTAUQUA AIRLINES INC.
COLUMBUS MUNICIPAL AIRPORT
AUTHORITY
/s/ [ILLEGIBLE]
-------------------------
Witness
/s/ [ILLEGIBLE] /s/ Xxxxxx Xxxxxxx, A.A.E 2/6/01
------------------------- --------------------------------------
Witness Xxxxxx Xxxxxxx, A.A.E Date
Executive Director
Columbus Municipal Airport Authority
83
State of Ohio
County of Franklin, ss:
Before me, a Notary Public in and for said County and State, personally appeared
the above named Xxxxxx Xxxxxxx, Executive Director for the Columbus Municipal
Airport Authority, who represented that he is authorized to execute the
foregoing instrument as his free act and deed as such authorized representative
of the Columbus Municipal Airport Authority.
In testimony whereof; I have hereunto set my hand and official seal at Columbus,
Ohio, this 6th day of February 2001.
/s/ [ILLEGIBLE]
-------------------------
Notary Public
[SEAL OF ROD XXXXXXXX XXXXXX ATTORNEY
AT LAW NOTARY PUBLIC - STATE OF OHIO
LIFETIME COMMISSION]
State of Indiana
County of Xxxxxx, ss:
Before me, a Notary Public in and for said County and State, personally appeared
the above named who represented that he is authorized to execute the foregoing
instrument as his free act and deed as such authorized representative of.
In testimony whereof, I have hereunto set my hand and official seal at
Indianapolis IN this 5th day of March 2001.
/s/ [ILLEGIBLE]
-------------------------
Notary Public
THE PERSON SIGNING SHALL, IN HIS OWN HANDWRITING, SIGN THE AIRLINE'S NAME, HIS
OWN NAME AND HIS TITLE. WHERE THE PERSON SIGNING FOR A CORPORATION, COMPANY OR
PARTNERSHIP, IS OTHER THAN THE PRESIDENT, HE MUST, BY AFFIDAVIT, SHOW HIS
AUTHORITY TO BIND THE CORPORATION, COMPANY OR PARTNERSHIP.
84
COLUMBUS MUNICIPAL AIRPORT AUTHORITY
SPACE RENTAL AND OTHER CHARGES
EFFECTIVE JULY 1, 2000 TO DECEMBER 31, 2000
CHAUTAUQUA
FIXED RENTALS
--------------------------------------------------------------------------------
(C)
(A) (B) ANNUAL (D)
RENTAL AREAS SQUARE RATE AMOUNT MONTHLY
FEET sfpa (A X B) AMOUNT
--------------------------------------------------------------------------------
TERMINAL SPACE $ 0.00 $ 0.00
================================================================================
TOTAL FIXED RENTAL CHARGES $ 0.00 $ 0.00
--------------------------------------------------------------------------------
COMMON SPACE
--------------------------------------------------------------------------------
SECURITY AREAS - (SCHEDULE I) $ 1,238.28 $ 103.19
SKYCAP / BAG CLAIM AREAS - (SCHEDULE II) $ 10,903.92 $ 908.66
TUG DRIVES - (SCHEDULE III) $ 3,957.96 $ 329.83
--------------------------------------------------------========================
TOTAL COMMON SPACE CHARGES $ 16,100.16 $1,341.68
--------------------------------------------------------------------------------
OTHER CHARGES/CREDITS
--------------------------------------------------------------------------------
XXX FEE REIMBURSEMENT-(SCHEDULE IV) $ 9,082.08 $ 756.84
APRON FEES - (SCHEDULE V) $ 15.865.92 $1,322.16
--------------------------------------------------------========================
TOTAL OTHER CHARGES $ 24,948.00 $2,079.00
--------------------------------------------------------========================
GRAND TOTAL $ 41,048.16 $3,420.68
================================================================================
GENERAL AIRLINE CREDITS - LANDING FEES ($ 45,145.08)($3,762.09)
================================================================================
SCHEDULE I
COLUMBUS MUNICIPAL AIRPORT AUTHORITY
COMPUTATION OF MONTHLY RENTAL CHARGES FOR COMMON USE AREAS
SHARED BY SCHEDULED AIRLINES
EFFECTIVE JULY 1, 2000 TO DECEMBER 31, 2000
COMMON SPACE - TYPE 2
SECURITY AREAS 3,095.1
RENTAL RATE PER SQUARE FOOT 550.66
ANNUAL CHARGE = $156,797.77
MONTHLY CHARGE = $ 13,066.48
ENPLANED 20% SHARED
PASSENGERS PERCENTAGE EQUALLY BY
01-DEC-99 OF AIRLINES WITH MORE
CUSTOMER THROUGH ENPLANED PRO-RATED THAN ONE PERCENT MONTHLY
NUMBER AIRLINE 31-MAY-00 PASSENGERS AMOUNT OF ENPLANMENTS AMOUNT
-------------------------------------------------------------------------------------------------
123 AIR ONTARIO 11,822 0.7299% $ 76.29 $ 0.00 $ 76.29
119 AMERICA WEST 170,322 10.5153% $ 1,099.19 $ 186.66 $1,285.85
102 AMERICAN 68,048 3.5838% $ 374.62 $ 186.66 $ 551.28
124 AMERICAN EAGLE 68,020 4.1994% $ 438.98 $ 186.66 $ 625.64
131 ATLANTIC COAST 26,829 1.6564% $ 173.15 $ 186.66 $ 359.81
129 CHAUTAUQUA 15,990 0.9872% $ 103.19 $ 0.00 $ 103.18
195 XXXXXX AIR 3,874 0.2392% $ 25.00 $ 0.00 $ 25.00
115 COMAIR 11,491 0.7094% $ 74.16 $ 0.00 $ 74.16
118 CONTINENTAL 74,812 4.6187% $ 402.81 $ 186.66 $ 659.47
125 CONTINENTAL EXPRESS 17,064 1.0535% $ 110.13 $ 186.66 $ 296.70
103 DELTA AIRLINES 303,735 18.7519% $ 1,960.18 $ 186.66 $2,146.84
