HomeMy WebLinkAboutContract 52894 Execution Copy
MY SECRUARY
CONTRACT No. -1 R9
CARGO CARRIER OPERATING AGREEMENT
FOR
FORT WORTH ALLIANCE AIRPORT
by and between
City of Forth Worth
and
Air Transport International,Inc.
m
FT. WORTH, TX
RECORDCREIARY
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Table of Contents
ARTICLE I DEFINITIONS AND EXHIBITS............................................................................. I
1.1 Basic Data.............................................................................................................. 1
1.2 Additional Definitions. ..........................................................................................2
ARTICLE 2 USE OF THE AIRPORT AND RELATED FACILITIES.......................................4
2.1 Airline Rights and Privileges.................................................................................4
2.2 Exclusions and Reservations..................................................................................4
ARTICLE 3 OPERATION AND MAINTENANCE OF THE AIRPORT...................................5
3.1 City Obligations.....................................................................................................5
ARTICLE 4 FEES AND CHARGES............................................................................................6
4.1 Landing Fees..........................................................................................................6
4.2 Special Charges......................................................................................................6
4.3 Use Contingent Upon Payment..............................................................................7
4.4 Payment..................................................................................................................7
4.5 Schedules and Audit..............................................................................................8
4.6 Security Deposit..................................................................................................... 8
ARTICLE 5 AFFILIATES............................................................................................................9
5.1 Airline's Designation of Affiliates.........................................................................9
5.2 Applicability of Agreement to Affiliates...............................................................9
5.3 Termination of Status of Affiliate..........................................................................9
ARTICLE 6 INDEMNIFICATION AND INSURANCE........................................................... 10
6.1 Indemnification.................................................................................................... 10
6.2 Insurance.............................................................................................................. 11
6.3 Forms of Insurance Coverage.............................................................................. 12
ARTICLE 7 COMPLIANCE WITH LAWS............................................................................... 13
7.1 General Laws. ...................................................................................................... 13
7.2 Airport Rules and Regulations............................................................................. 13
7.3 Licenses, Certificates and Authorizations............................................................ 13
7.4 Wage Hour Laws. ................................................................................................ 14
ARTICLE 8 CIVIL RIGHTS AND AFFIRMATIVE ACTION................................................. 14
8.1 General Civil Rights Provisions........................................................................... 14
8.2 Compliance with Nondiscrimination Requirements............................................ 14
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8.3 Title VI Clauses for Transfer of Real Property Acquired or Improved
Under the Airport Improvement Program............................................................ 15
8.4 Clauses for Construction/Use/Access to Real Property Acquired Under the
Activity, Facility or Program............................................................................... 16
8.5 Title VI List of Pertinent Nondiscrimination Acts and Authorities..................... 16
8.6 Subordination to Agreements with the United States.......................................... 17
8.7 No Exclusive Rights. ........................................................................................... 18
8.8 Right to Develop Airport. .................................................................................... 18
8.9 Right of Flight...................................................................................................... 18
8.10 14 C.F.R Part 77, Obstructions in Navigable Airspace. ...................................... 18
8.11 No Obstructions. .................................................................................................. 18
8.12 War or National Emergency. ............................................................................... 18
8.13 No Interference with Airport Operations............................................................. 18
8.14 SEC Rule 15c2-12................................................................................................ 19
8.15 Americans with Disabilities Act("ADA"). ......................................................... 19
ARTICLE 9 AIRLINE DEFAULT AND TERMINATION BY CITY...................................... 19
9.1 Airline Default..................................................................................................... 19
9.2 City's Remedies...................................................................................................21
9.3 Termination..........................................................................................................21
9.4 The City's Right to Perform. ...............................................................................21
9.5 Airline's Rights Related to Termination..............................................................22
9.6 Bankruptcy...........................................................................................................22
ARTICLE 10 AIRPORT DEFAULT AND TERMINATION BY AIRLINE............................22
10.1 Events of Default. ................................................................................................22
10.2 Airline's Remedy.................................................................................................23
ARTICLE 11 ENVIRONMENTAL............................................................................................23
11.2 Airline Representations, Warranties, And Covenants. ........................................24
11.3 Information to be Provided to the City. ...............................................................27
11.4 Response and Compliance Actions......................................................................27
11.5 Correction of Environmental Non-compliance....................................................29
11.6 Corrective Action Process....................................................................................30
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11.7 Environmental Indemnification and Reimbursement..........................................30
11.8 Limitations...........................................................................................................31
11.9 Waiver..................................................................................................................31
11.10 Survival of Environmental Provisions.................................................................32
11.11 Resource Conservation and Recycling. ...............................................................32
ARTICLE 12 ASSIGNMENT.....................................................................................................32
ARTICLE 13 MISCELLANEOUS PROVISIONS....................................................................32
13.1 Nature of Agreement............................................................................................32
13.2 Governing Law and Venue..................................................................................32
13.3 Entire Understanding. ..........................................................................................33
13.4 Amendments. .......................................................................................................33
13.5 Cumulative Rights. ..............................................................................................33
13.6 Construction to Save Agreement. ........................................................................33
13.7 No Waiver............................................................................................................33
13.8 Relationship of Parties.........................................................................................34
13.9 No Third-Party Beneficiaries...............................................................................34
13.10 Successors and Assigns........................................................................................34
13.11 Labor Disputes.....................................................................................................34
13.12 Force Majeure......................................................................................................34
13.13 No Personal Liability...........................................................................................34
13.14 Acceptance of Payments......................................................................................35
13.15 Attorneys' Fees....................................................................................................35
13.16 Taxes....................................................................................................................35
13.17 Memorandum of Lease........................................................................................36
13.18 Approval or Consent............................................................................................36
13.19 Time of the Essence.............................................................................................36
13.20 Notices. ................................................................................................................36
13.21 Counterparts.........................................................................................................36
13.22 Capacity to Execute. ............................................................................................36
13.23 Incorporation of Exhibits.....................................................................................36
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13.24 Titles. ...................................................................................................................37
13.25 Other Agreements................................................................................................37
13.26 Agent for Service.................................................................................................37
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LIST OF EXHIBITS
Exhibit Title
A Map of the Airport
B Addendums to Operating Agreement
C Form of Monthly Landing Report
D Affiliate Operating Agreement
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THIS CARGO CARRIER OPERATING AGREEMENT (this "Agreement") is made by
and between the CITY OF FORT WORTH,TEXAS, a home-rule city and political subdivision
of the State of Texas (the "City") and AIR TRANSPORT INTERNATIONAL, INC. a
corporation organized and existing under the Iaws of the State of DELAWARE and authorized to
do business in the State of Texas ("Airline").
WITNESSETH:
WHEREAS, the City, is the owner of the Fort Worth Alliance Airport, located in Tarrant
and Denton County, Texas (the"Airport");
WHEREAS,the City has the right to license the use of property and facilities on the Airport
and has the full power and authority to enter into this Agreement in respect thereof;
WHEREAS,the City has entered into an Operating Agreement,dated as of January 1, 1994
with Alliance Air Services, a Hillwood Company (the "Airport Operator"), for the management,
operation and maintenance of the Airport;
WHEREAS, Airline is engaged in the business of transportation by air of property,mail or
cargo; and
WHEREAS, Airline desires to obtain certain rights, services and privileges in connection
with the use of the Airport and its facilities, and the City is willing to grant the same to Airline
upon the terms and conditions in this Agreement.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained,the City and Airline do hereby mutually undertake, promise and agree, each for
itself and its successors and assigns,as follows:
Article 1 DEFINITIONS AND EXHIBITS
1.1 Basic Data
Each reference in this Agreement to any of the following subjects incorporates the
information specified below:
City: City of Fort Worth, Texas or its designee.
City's Overnight Delivery and Street Address: 4201 N. Main Street, Suite 200, Fort Worth,
Texas 76106-2736; with a copy to City
Attorney's Office, 200 Texas Street, Fort
Worth, TX 76102.
City's Post Office and Payment Address: 4201 N. Main Street, Suite 200, Fort Worth,
Texas 76106-2736.
Airport Operator: Alliance Air Services
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Airport Operator's Overnight Delivery/Street Address: 2221 Alliance Blvd., Suite 100; Fort
Worth, Texas 76177.
Airport Operator's Post Office and Payment Address:2221 Alliance Blvd., Suite 100; Fort Worth,
Texas 76177.
Airline: Air Transport International, Inc.
Airline's Overnight Delivery and Street Address: 145 Hunter Dr. MS2061T
Wilminton, OH 45177
ATTN: Manager of Government Contracts
Agreement: This Cargo Operating Agreement as the same may be amended or
supplemented from time to time pursuant to the terms hereof:
Effective Date: October 1, 2019.
Term: The period of time beginning on the Effective Date and ending on the
Expiration Date, unless earlier terminated as provided in this Agreement.
Notwithstanding anything set forth herein to the contrary, both Airline and
City shall be entitled to terminate this Agreement at any time during the
Term upon thirty (30) days written notice to the other party hereto, such
termination to be effective at the end of the thirty(30)day notice period.
Expiration Date: 11:59 PM Central Daylight Saving Time, March 31, 2021.
Permitted Uses: As provided in Article 2.
Security Deposit: As provided in Section 4.6.
1.2 Additional Definitions.
The following words, terms and phrases wherever used in this Agreement have the
following meanings:
Affiliate means a Cargo Carrier that is (i) a parent or subsidiary of Airline or under the
same parental control as Airline, (ii) otherwise operates under essentially the same trade name as
Airline at the Airport and uses essentially the same livery as Airline; or(iii) operates cargo feeder
flights at the Airport under the direction and control of Airline. Airline shall provide the Airport
Operator with advance written notice prior to designating a new Affiliate. Airline shall provide
the City with advance written notice prior to the cancellation of any designation of an Affiliate
before the cancellation of such designation.
Air Transportation Business means that business operated by Airline at the Airport for the
commercial transportation by air of property, mail or cargo.
Airfield means the runways, taxiways and public parking aprons at the Airport.
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Airline Entity means Airline's employees, contractors, subcontractors, agents, licensees,
sublessees, Affiliates, vendors, invitees and other parties under Airline's direction or control that
come onto the Airport in connection with Airline's use or occupancy of the Airport.
Airport means the realty and improvements generally known and designated as the Fort
Worth Alliance Airport, including all real property and easements, improvements and
appurtenances thereto, structures, buildings, fixtures, machinery, equipment, vehicles, supplies
and other tangible personal property, or interest in any of the foregoing,now or hereafter leased or
acquired by the City, less any thereof which may be consumed, sold or otherwise disposed of A
depiction of the physical layout of the Airport as of the Effective Date is set forth in Exhibit A.
Airport Rules and Regulations means, collectively, all applicable rules, procedures,
requirements, standards and regulations currently effective and hereafter amended, adopted or
established by the City that are applicable to the Airport, including without limitation any
minimum use standards and operating standards as well as any requirements Iisted in the access
permit issued to Amazon.com Services, Inc., all of which are incorporated into and made a part of
this Agreement, as well as the rules and procedures in Exhibit B;provided that such Airport Rules
and Regulations do not conflict with applicable provisions of state or federal law or the provisions
of this Agreement and are enforced in a nondiscriminatory manner. The City shall provide at least
thirty (30) days' advance written notice of any new or amended Airport Rules and Regulations
affecting Airline.
Applicable Laws means, collectively, all applicable present and future laws, rules,
regulations, ordinances, orders, directives, notices, federal grant assurances, limitations,
restrictions, or prohibitions of any federal, state or local governmental authority lawfully
exercising authority over the Airport or the activities and business operations of Airline, as they
may be amended from time to time, whether foreseen or unforeseen, ordinary as well as
extraordinary, including without implied limitation those relating to (i) health, sanitation and
safety; (ii)the environment, including without limitation all Environmental Laws; (iii) access for
persons with disabilities, including without limitation the Americans with Disabilities Act of 1990,
42 U.S.C. §§ 12101 et seq.; and (iv) airport security, including without limitation the regulations
of the TSA, 49 CFR Parts 1540, 1542, 1544 et seq.
Cargo Carrier means a carrier certificated by the Secretary of the U.S. Department of
Transportation as a Cargo Carrier under 49 U.S.C. § 41103.
Claims means any and all liability, damages, losses, expenses, claims, judgments,
demands,penalties or fines,including without limitation reasonable attorneys' fees and court costs.
DHS means the Department of Homeland Security, and its authorized successor(s).
FAA means the Federal Aviation Administration, and its authorized successor(s).
Fiscal Year means the annual accounting period used for general accounting purposes
which, at the time of entering into this Agreement, is the period of twelve consecutive months
beginning with the first day of January of any year.
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Maximum Gross Landed Weight means the maximum gross landing weight in one
thousand-pound units, at which each aircraft operated at the Airport by Airline is certificated by
the FAA.
TSA means the Transportation Security Administration, and its authorized successor(s).
Additional words and phrases used in this Agreement but not defined herein have their
usual and customary meaning.
Article 2 USE OF THE AIRPORT AND RELATED FACILITIES
2.1 Airline Rights and Privileges.
In addition to all rights granted elsewhere in this Agreement,Airline shall have the right to
use, in common with others so authorized by the Airport Operator,areas, facilities, equipment and
improvements at the Airport for the operation of Airline's Air Transportation Business and all
activities reasonably necessary to such operations, including but not Iimited to:
2.1.1 The landing, taking off, flying over, taxiing, and towing of Airline's
aircraft in areas designated by Airport Operator; provided, however, Airline shall not permit the
use of the Airfield by any aircraft operated or controlled by Airline which exceeds the design
strength or capability of the Airfield as described in the then-current FAA-approved Airport
Layout Plan (ALP) or other engineering evaluations performed subsequent to the then-current
ALP, including the then-current Airport Certification Manual, provided that such evaluations are
provided to Airline upon Airline's request.
2.1.2 The training of personnel in the employ of or to be employed by Airline
and the testing of aircraft and other equipment being utilized at the Airport in the operation of
Airline's Air Transportation Business; provided, however, said training and testing shall be
incidental to the use of the Airport in the operation by Airline of its Air Transportation Business
and shall not unreasonably hamper or interfere with the use of the Airport and its facilities by
others entitled to the use of same. The Airport Operator reserves the right to restrict or prohibit
such training and testing operations if it reasonably deems that such training and testing operations
unreasonably interferes with the use of the Airport.
2.1.3 The servicing by Airline or its suppliers, of aircraft and other equipment
being utilized at the Airport by Airline authorized by the Airport Operator in writing and at
locations designated by the Airport Operator.
2.1.4 Access to the Airport from an off-airport property, subject to an access
permit issued by the City to Amazon.com Services, Inc.
2.2 Exclusions and Reservations.
2.2.1 Nothing in this Article 2 shall be construed as authorizing Airline to
conduct any business separate and apart from the conduct of its Air Transportation Business.
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2.2.2 The City shall at all times have exclusive control and management of the
Airport.
2.2.3 Airline shall not knowingly interfere or knowingly permit interference
with the use,operation or maintenance of the Airport,including but not limited to,the effectiveness
or accessibility of the drainage, sewerage, water, communications, fire protection, utility,
electrical, or other systems installed or Iocated from time to time at the Airport.
2.2.4 As soon as reasonably possible after release from proper authorities,
Airline shall (i) remove or cause to be removed any of its disabled aircraft from the Airfield, and
(ii) place any such disabled aircraft in Airline's off-Airport leasehold or in such storage areas as
may be designated by the Airport Operator. In the event Airline fails to remove any of its disabled
aircraft as expeditiously as reasonably possible, Airport Operator may, but shall not be obligated
to, cause the removal of such disabled aircraft; provided, however,the Airport Operator shall give
Airline prior written notice of its intent to do so and provided further that Airport Operator shall
use reasonable efforts to remove such aircraft. Airline shall pay to the Airport Operator, upon
receipt of invoice, the reasonable and documented out of pocket costs actually incurred by the
Airport Operator for such removal plus twelve percent(12%).
2.2.5 Airline shall not do or permit to be done anything, either by act or failure
to act,that causes the cancellation or violation of the provisions, or any part thereof, of any policy
of insurance for the Airport, or that causes a hazardous condition so as to increase the risks
normally attendant upon operations permitted by this Agreement, provided that the Airport
Operator has previously provided the Airline with the insurance policies. If such Airline act, or
failure to act, causes cancellation of any policy, then Airline shall immediately, upon notification
by Airport Operator, do whatever is necessary to cause reinstatement of said insurance.
Furthermore, if Airline shall do or permit to be done any act not permitted under this Agreement,
or fail to do any act required under this Agreement, regardless of whether such act constitutes a
breach of this Agreement, which causes an increase in City's insurance premiums, Airline shall
immediately remedy such actions or pay the increase in premiums, upon notice from the Airport
Operator to do so.
2.2.6 The rights and privileges granted Airline pursuant to this Article 2 shall
be subject to any and all Airport Rules and Regulations and the other provisions of this Agreement.
2.2.7 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
City.
Article 3 OPERATION AND MAINTENANCE OF THE AIRPORT
3.1 City Obligations.
3.1.1 The City shall, with reasonable diligence and using adequate qualified
personnel, prudently develop, improve,and at all times maintain and operate the Airport, and keep
the Airport in good repair.
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3.1.2 The City shall use reasonable efforts keep the Airport and its aerial
approaches free from ground obstruction for the safe and proper use thereof by Airline to the extent
that the City has ownership of the land containing the ground obstruction.
3.1.3 The City shall maintain the Airport in accordance with FAA certification
requirements and maintain adequate rescue and firefighting equipment and personnel to meet such
FAA certification requirements which meet or exceed the activity level of Airline's aircraft using
the Airport.
3.1.4 The Airport shall be fully operational 24 hours per day, 365 days per year
(366 days per year during leap years), unless Airline agrees in writing to a reduced operating
schedule.
3.1.5 Subject to 3.1.6, the City shall not restrict Airline's night operations,
subject to Applicable Laws.
3.1.6 At the reasonable request of the City or Airport Operator, Airline shall
work with City to alter the flight path of an approach or departure of its aircraft to address local
noise concerns.
3.1.7 The City shall not be liable to Airline for temporary failure to furnish all
or any of such services to be provided in accordance with this Agreement when due to mechanical
breakdown or any other cause beyond the reasonable control of the City.
Article 4 FEES AND CHARGES
4.1 Landing Fees.
Airline shall pay Landing Fees for its use of the Airfield based on the Maximum Gross
Landed Weight of Airline's aircraft landing at the Airport. The Landing Fee rate is $1.49 per
thousand pounds landed weight.
4.2 Special Charges.
The City may also charge Airline for and Airline agrees to pay within thirty(30)days after
receipt of an invoice from the City or Airport Operator:
4.2.1 Parking on the public ramp. The parking fee on the Effective Date will be
included in the City's Schedule of Rates and Charges which may be revised annually by the City.
4.2.2 Special licenses and special permits for activities and uses of the Airport
that are not covered by this Agreement that are requested by Airline;
4.2.3 Special services requested by Airline;
4.2.4 Costs for removing disabled aircraft as specified in Section 2.2.4;
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4.2.5 Reasonable, documented, out of pocket costs and expenses actually
incurred by or on behalf of the City or Airport Operator plus twelve percent(12%)(after the giving
of notice and the expiration of any applicable cure periods as provided in Section 9.1 of this
Agreement) to remove litter, debris, refuse, petroleum products (including oil and grease) that
result from the activities of Airline or its Affiliates, employees, agents or suppliers at the Airport;
and
4.2.6 Any other reasonable, documented, out of pocket costs and expenses, plus
twelve percent (12%), incurred by or on behalf of the City or Airport Operator as a result of any
failure by Airline or its Affiliates to perform their duties and obligations under this Agreement or
the Affiliate Operating Agreement(after the giving of notice and the expiration of any applicable
cure periods as provided in Section 9.1 of this Agreement).
4.3 Use Contingent Upon Payment.
The grant of the right, licenses, facilities, services and privileges to Airline under this
Agreement shall, in each case, be subject to the payment of the Landing Fees.
4.4 Payment.
4.4.1 On or before the I Oth day of each month,Airline shall submit to the Airport
Operator a "Monthly Landing Report" in the form of Exhibit C reporting its landing activity for
the prior month. The Airport Operator shall have the right to rely on the Monthly Landing Report
in determining Landing Fees due from Airline under this Agreement; provided, however, Airline
shall have full responsibility for the accuracy of the report,
4.4.2 Airline shall pay, without invoice from the Airport Operator, on or before
the I Oth day of each month the Landing Fees for the prior month in an amount equal to the Landing
Fee rate multiplied by the Airline's Maximum Gross Landing Weight for all aircraft landing at the
Airport during the prior month, as reported in the Monthly Landing Report.
4.4.3 All payments due and payable hereunder shall be paid in lawful money of
the United States of America, without set off, by electronic transfer as follows:
Account Name: Alliance Aviation Management, Ltd.
Account Number: 489020289876
ABA Routing(WIRE): 026009593
ABA Routing (ACH): 111000025
Bank Name: Bank of America
Branch Address: Dallas, TX 75202
Remittance Email: Sherri.Simpson@Hillwood.com; and
Monica.Wirdzek@Hillwood.com
4.4.4 The City may impose a delinquency charge on all overdue payments at a
rate that is the greater of either a 10% interest rate or the current Wall Street Journal Prime Rate
plus one percent (1%).
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4.5 Schedules and Audit
Upon execution of this Agreement, Airline shall provide the Airport Operator with its
schedule of aircraft operations for Airline and its Affiliates("Schedule"). Airline shall provide the
Airport Operator with an updated Schedule any time there is a change to the scheduled operations
of Airline or its Affiliates that would affect the assessment of Landing Fees. Airline shall maintain
separate and accurate daily records of Airline's operations at the Airport for a period of three (3)
years after the close of each Fiscal Year throughout the Term. This record-keeping obligation
shall survive the expiration or earlier termination of this Agreement. All such books and records
shall be kept in accordance with generally accepted accounting principles, consistently applied,
showing in detail all business done or transacted in, on, about, from or pertaining to the Airport,
and shall be sufficient to permit the City to calculate and verify the Landing Fees and other fees
and charges due under this Agreement. Upon the City's or Airport Operator's written request,
Airline shall make available at the Airport to the City or Airport Operator or their auditors any and
all books, records and accounts pertaining to the calculation of the Landing Fees and other fees
and charges due under this Agreement. In the event City, Airport Operator or their auditor(s)
demonstrates an underpayment of cumulative fees and charges of two percent (2%) or more for
the previous three(3) years, Airline shall pay to City the cost of any review or audit.
4.6 Security Deposit.
4.6.1 Posting of Security Deposit. On or before the Effective Date, Airline shall
provide to the City a Security Deposit in an amount equal to the estimate of three (3) months'
Landing Fees and in the form required under Section 4.6.3. As of the Effective Date,the Security
Deposit is Two Hundred and Twenty Thousand Dollars ($220,000). The Security Deposit shall
be held by the City and used to remedy Airline's defaults in the payment of Landing Fees and other
fees and charges due under this Agreement or which otherwise arise as a result of Airline's
operations at the Airport.
4.6.2 Increases to the Security Deposit. The City may increase the amount of
the Security Deposit required under Section 4.6.1 during the Term if and when Airline changes its
operating schedule in a manner that increases the estimate of three (3)months' Landing Fees that
formed the basis for the Security Deposit then in effect by more than ten percent(10%). Any such
increase in the Security Deposit shall be limited to the then current estimate of three (3) months'
Landing Fees. In the event of an increase, Airline shall comply with the new Security Deposit
requirement within thirty(30) days of receipt of written notice by the City.
4.6.3 Standby Letter of Credit Requirements. The Security Deposit shall be in
the form of an irrevocable standby letter of credit drawn on a bank having either a branch in Tarrant
County or a bank that allows the Letter of Credit to be presented by facsimile. The bank is required
to have a Iong-term, letter of credit rating and bank deposit rating from two (2) of the three (3)
rating agencies of at least A2/A/A by Moody's Investor Services, Standard & Poor's and Fitch
Ratings, respectively. The letter of credit shall be in a form approved by the City.
4.6.4 Duty to Maintain Security Deposit - Default. Airline shall maintain the
required Security Deposit continuously throughout the Term. Failure to do so shall be deemed a
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default and shall be grounds, at City's discretion, upon ten (10) days' written notice unless the
default is cured, for immediate termination of this Agreement.
4.6.5 Duty to Rebate.The Security Deposit or the remaining portion thereof fol-
lowing any draws on the letter of credit by City shall be rebated, released, assigned, surrendered,
or endorsed to Airline,as applicable,no later than ninety(90)days after the later of:(1)termination
of this Agreement; (2)issuance of a close-out audit by the City or Airport Operator;or(3)payment
of all outstanding amounts owed the City under this Agreement.
Article 5 AFFILIATES
5.1 Airline's Designation of Affiliates.
Subject to the provisions of this Article 5, Airline may designate one or more Affiliates to
operate at the Airport. In the event Airline designates an Affiliate, the following provisions apply
to Airline and its Affiliates:
5.1.1 Airline's designation of an Affiliate shall not be effective until Airline has
first(a) notified the Airport Operator in writing that Airline intends to designate the Affiliate; (b)
ensured that the Affiliate has entered into an Affiliate Operating Agreement with the City in
substantially the same form as that attached as Exhibit D; and (c) confirmed for the Airport
Operator in writing that Airline will pay to the City all of the Affiliate's Landing Fees and other
fees and charges due to the City on account of the Affiliate's use of any Airport facilities as an
Affiliate of Airline,as provided in Section 5.1.2. Airline's designation of an Affiliate is subject to
the City's approval, which shall not be unreasonably withheld.
5.1.2 Airline shall pay to City all Landing Fees and other fees and charges due
under this Agreement due to City on account of the Affiliate's use of any Airport facilities, and
shall submit to City all reports detailing each Affiliate's use of any Airport facilities or services as
an Affiliate of Airline in accordance with Section 4.4; provided, however, that both Airline and
the Affiliate shall remain jointly and severally liable to City for the payment of all Landing Fees
and other fees and charges, and the submission of all reports,that are due to City on account of the
Affiliate's use of any Airport facilities or services as an Affiliate of Airline.
5.2 Applicability of Agreement to Affiliates.
For so long as Airline and its Affiliates have complied with the payment and reporting
obligations under Article 4, then each Affiliate shall have the same rights as Airline with respect
to its use of the Airport.
5.3 Termination of Status of Affiliate.
A Cargo Carrier's status as Affiliate of Airline may be terminated by Airline upon not less
than thirty (30) days' written notice to City. Airline's liability to City for the payment of all
Landing Fees and other fees and charges due under this Agreement, and the submission of all
activity reports, that are due to City on account of the use of Airport facilities or services by
Airline's Affiliates shall survive any termination of Affiliate status; provided, however, that
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Airline shall only be responsible for such payments and reports related to the terminated Affiliate's
operations before its proper termination by Airline took effect.
Article 6 INDEMNIFICATION AND INSURANCE
6.1 Indemnification.
6.1.1 Except for Claims for environmental matters(which are the subject of the
indemnification obligation under Article 11), Airline shall, to the fullest extent permitted by law,
defend, indemnify and hold harmless the City and the Airport Operator and their boards, officers,
officials, directors, employees, volunteers and agents (each and "Indemnified Party") from and
against (i) Claims arising directly or indirectly from any act or omission (including without
limitation express negligence) of Airline or Airline Entity or out of the obligations undertaken in
connection with or the performance of this Agreement, or (ii) for Claims based upon Airline's
alleged breach of any statutory duty or obligation or Airline's duty under contracts with third
parties, or(iii) Claims arising from any use of the Airport by Airline or Airline Entities except, to
the extent those Claims arise out of the negligence or willful misconduct of the City or Airport
Operator. The obligations in this Article shall apply for the entire time that any third party can
Iegally make a claim against or sue the City or Airport Operator for liabilities arising out of
Airline's use, occupancy, or operation of the Airport.
6.1.2 Except for claims for environmental matters (which are the subject of the
indemnification obligations under Article 11), Airline shall release, defend, indemnify, and hold
each Indemnified Party completely harmless from and against any Claims arising from or based
upon the actual or alleged violation by Airline or an Airline Entity, of any Applicable Laws,
Airport Rules and Regulations or any license,certificate,permit or other authorization issued under
any of the aforesaid, in connection with Airline's conduct of its air transportation business on or
at the Airport or use or occupancy of the Airport.
6.1.3 If the City is alleged to be in non-compliance with Applicable Laws
governing access to secure areas of the Airport and said non-compliance is the result of or due to
the negligence or willful act or omission of Airline or an Airline Entity,and such breach of secure
area results in a civil penalty or other action against the City, Airline agrees to reimburse the City
for all expenses, including reasonable attorneys' fees, incurred by the City in defending against
the civil penalty action or other action, and for any civil penalty or settlement amount paid by the
City as a result of being deemed in non-compliance as aforesaid. The City shall give Airline
reasonable notice of any allegation, investigation, or proposed or actual civil penalty or other
action sought for such non-compliance.
6.1.4 If any action or proceeding is brought against the City by reason of any
Claim that may be subject to Airline's indemnification obligations contained in this Section 6.1,
Airline, upon reasonable notice from the City, shall resist or defend such claim, suit, demand,
action, liability,loss,damage,judgment, fine,or penalty with counsel reasonably acceptable to the
City, and the City shall take reasonable actions to mitigate its damages.
6.I.5 The foregoing express obligation of indemnification shall not be construed
to negate or abridge any other obligation of indemnification running to the City or an Indemnified
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Party that would exist at common law or under other provisions of this Agreement, and the extent
of the obligation of indemnification shall not be limited by any provision of insurance undertaken
in accordance with this Agreement. The City shall give Airline written notice of any Claims
threatened or made or any suit instituted against it that could result in a claim of indemnification
hereunder.
6.1.6 Notwithstanding anything to the contrary set forth in this Agreement,
neither party nor any of its members, directors, officers,agents, representatives or employees shall
be liable to the other party for any loss of business or any indirect, incidental, special or
consequential damages or lost profits arising out of or relating to this Agreement or such party's
performance or non-performance hereunder; provided, however, that this Section 6.1.6 shall not
apply to third-party claims for bodily injury, wrongful death or property damage arising out of or
relating to this Agreement.
6.1.7 The indemnification and other obligations under this Section 6.1 shall
survive the expiration or earlier termination of this Agreement.
6.2 Insurance.
During the Term and any extension thereof, Airline shall, at its sole cost and expense,
obtain and maintain in full force and effect, and promptly pay all premiums, when due, for the
following types of insurance in the amounts specified and in the form herein provided:
6.2.1 General Liability Insurance/Aviation Liability.
Airline shall maintain aviation liability insurance, including general liability
insurance, in amounts not less than a Combined Single Limit of$500,000,000 any one occurrence
and in the aggregate where applicable for bodily injury(including death)to passengers and third
parties and Property Damage. Coverage shall include but not be limited to Airport operations;
blanket contractual liability; personal injury, which coverage shall be $10,000,000; products and
completed operations; aircraft non-owned liability; liability for vehicles on the restricted access
areas of the Aircraft Operations Area (AOA) including baggage tugs, aircraft pushback tugs,
provisioning trucks, air stair trucks, belt loaders and ground hangar keeper's liability. Explosion,
collapse and underground property damage liability coverage's shall not be excluded from such
insurance coverage. The City and Airport Operator shall be named as additional insured.
6.2.2 Automobile Liability Insurance.
Airline shall maintain commercial automobile liability insurance, with a limit of
not less than $10,000,000 each accident. Such insurance shall cover liability arising out of any
auto (including owned, hired, and non-owned autos). The City and Airport Operator shall be
named as additional insured.
6.2.3 Workers Compensation.
Airline shall maintain statutory workers compensation and employers liability
insurance. The liability employer's limits for such policy shall not be less than $1,000,000 each
accident for bodily injury by accident or$500,000 each employee for bodily injury by disease.
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6.2.4 Contractors Insurance.
Any contractor, construction manager or other party engaged by Airline or
subcontractor or other party engaged by a contractor, construction manager or other party that is
engaged by Airline, in either case,to perform any construction,renovations or repairs at the Airport
shall obtain and maintain in full force and effect during any construction period:
(a) A commercial general liability insurance policy in minimum
limits, unless otherwise specified, of $1,000,000 per occurrence for bodily injury and
$1,000,000 per occurrence for property damage including a$2,000,000 general aggregate.
(b) An automobile liability insurance policy covering owned, non-
owned and hired vehicles of least$500,000 per a combined single limit.
(c) A worker's compensation policy affording statutory coverage
and containing statutory limits and employer's liability insurance at Iimits of$500,000 per
accident/$500,000 each employee/$500,000 policy limit.
(d) Professional liability insurance shall be maintained when any
architect, engineer or any other professional service performs, directly or indirectly, work for
or on behalf of Airline at Airport or involving Airline's operations with a $1,000,000 policy
limit.
(e) Additional Coverage:
(i) Excess/Umbrella Liability(as applicable)
(ii) Within Aircraft Operations Area $10 M
(iii) Secure/Sterile Side Operations (outside AOA) $5 M
Coverage must apply in excess of all required primary liability insurance, and must be at
least as broad as the underlying liability insurance. The City and Airport Operator shall be named
as additional insured.
6.3 Forms of Insurance Coverage.
6.3.1 Insurance requirements and limits of coverage under this Agreement may
be amended by the City as a result of increased risk, nature of work performed, losses sustained,
and/or City policy, industry and statutory changes.
6.3.2 All policies shall be written by insurance companies reasonably acceptable
to the City.
6.3.3 All policies, except for workers compensation coverage and professional
liability coverage, shall designate the below mentioned parties as "Additional Insured," either by
a"blanket additional insured"endorsement, or by specific endorsement.
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"The City of Fort Worth, Texas and Alliance Air Services, Inc.and their respective
elected officials, boards, officers, employees, agents and representatives."
6.3.4 All policies shall waive the insurer's right of subrogation against said
parties.
6.3.5 All policies must be primary with respect to coverage provided for the
City and the other Additional Insureds.
6.3.6 All policies must be non-contributory with other coverage or self-
insurance available to the City and the other Additional Insureds.
6.3.7 All of Airline's insurance policies shall contain a provision that written
notice shall be given to the City and Airport Operator at least thirty(30)days prior to cancellation,
except ten (10) days for non-payment of premium. In the event that Airline is notified that an
insurer intends to terminate or non-renew a policy or reduce coverage below the requirements in
this Agreement,Airline shall arrange alternate coverage acceptable to the City to comply with City
requirements and cause replacement coverage data to be obtained.
6.3.8 Approval,disapproval or failure to act by the City regarding any insurance
obtained by Airline shall not relieve the Airline of full responsibility or liability for damages and
accidents as set forth herein. Neither shall the bankruptcy, insolvency or denial of liability by the
insurance company exonerate Airline from liability.
Article 7 COMPLIANCE WITH LAWS
7.1 General Laws.
Airline shall comply with all Applicable Laws.
7.2 Airport Rules and Regulations
The use by Airline of the areas and facilities described herein and the rights and privileges
granted Airline pursuant to this Agreement shall at all times be subject to the Airport Rules and
Regulations. Airline covenants and agrees that it will not violate or permit any Airline Entity to
violate any such Airport Rules and Regulations. The City may prescribe civil penalties and
injunctive remedies for violations thereof, and the same may be applied to Airline for violations
by Airline or any Airline Entity. Airline may contest in good faith any Applicable Laws, federal,
State or local code, law, regulation, ordinance or rule, Airport Rules and Regulations or any other
rule or regulation of the City without being considered in breach of this Agreement so long as such
contest is diligently commenced and prosecuted by Airline. The City shall provide at least thirty
(30)days' advance written notice of any new or amended Airport Rules and Regulations affecting
Airline.
7.3 Licenses,Certificates and Authorizations.
Airline shall obtain, at Airline's sole expense, all licenses, certificates, permits and other
authorizations that are now or hereafter required by Applicable Laws or the Airport Rules and
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Regulations for Airline's operations at the Airport and Airline's exercise of any rights under this
Agreement.
7.4 Wage Hour Laws.
Airline shall comply with all applicable Federal, state and local wage and hour laws.
Article 8 CIVIL RIGHTS AND AFFIRMATIVE ACTION
8.1 General Civil Rights Provisions.
Airline agrees to comply with pertinent statutes, Executive Orders and such rules as are
promulgated to ensure that no person shall, on the grounds of race, creed, color, national origin,
sex, age, or disability be excluded from participating in any activity conducted with or benefiting
from Federal assistance. If Airline transfers its obligation, the transferee is obligated in the same
manner as Airline.
This provision obligates Airline for the period during which the property is owned,used or
possessed by Airline and the Airport remains obligated to the Federal Aviation Administration.
This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.
8.2 Compliance with Nondiscrimination Requirements.
During the performance of this Agreement, Airline, for itself, its assignees, and successors
in interest(hereinafter referred to as "Airline") agrees as follows.
8.2.1 Compliance with„Regulations: Airline (hereinafter includes consultants)
will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they
may be amended from time to time, which are herein incorporated by reference and made a part
of this Agreement.
8.2.2 Nondiscrimination: Airline, with regard to the work performed by it
during the Agreement, will not discriminate on the grounds of race, color, or national origin in the
selection and retention of subcontractors, including procurements of materials and leases of
equipment. Airline will not participate directly or indirectly in the discrimination prohibited by
the Nondiscrimination Acts and Authorities, including employment practices when the Agreement
covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.
8.2.3 Solicitations for Subcontracts, Including Procurements of„Materials and
Equipment: In all solicitations, either by competitive bidding, or negotiation made by Airline for
work to be performed under a subcontract, including procurements of materials, or leases of
equipment, each potential subcontractor or supplier will be notified by Airline of Airline's
obligations under this Agreement and the Nondiscrimination Acts and Authorities on the grounds
of race, color, or national origin.
8.2.4 Information and Reports: Airline will provide all information and reports
required by the Acts,the Regulations,and directives issued pursuant thereto and will permit access
to its books,records,accounts,other sources of information,and its facilities as may be determined
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by the City or the Federal Aviation Administration to be pertinent to ascertain compliance with
such Nondiscrimination Acts and Authorities and instructions. Where any information required
of Airline is in the exclusive possession of another who fails or refuses to furnish the information,
Airline will so certify to the City or the Federal Aviation Administration, as appropriate, and will
set forth what efforts it has made to obtain the information.
8.2.5 Sanctions for Noncompliance: In the event of Airline's noncompliance
with the nondiscrimination provisions of this contract,the City will impose such contract sanctions
as it or the Federal Aviation Administration may determine to be appropriate, including, but not
limited to:
(a) Withholding payments to Airline under the Agreement until Airline
complies; and/or
(b) Cancelling, terminating, or suspending the Agreement, in whole or
in part.
8.2.6 Incorporation of Provisions: Airline will include the provisions of
paragraphs 8.2.1 through 8.2.6 in every subcontract, including procurements of materials and
leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant
thereto. Airline will take action with respect to any subcontract or procurement as the sponsor or
the Federal Aviation Administration may direct as a means of enforcing such provisions including
sanctions for noncompliance. Provided, that if Airline becomes involved in, or is threatened with
litigation by a subcontractor, or supplier because of such direction,Airline may request the City to
enter into any litigation to protect the interests of the City. In addition, Airline may request the
United States to enter into the litigation to protect the interests of the United States.
8.3 Title VI Clauses for Transfer of Real Property Acquired or Improved Under
the Airport Improvement Program.
8.3.1 Airline, for himself/herself, his/her heirs, personal representatives,
successors in interest, and assigns,as a part of the consideration hereof, does hereby covenant and
agree as a covenant running with the land that:
(a) In the event facilities are constructed, maintained, or otherwise
operated on the property described in this Agreement for a purpose for which a Federal
Aviation Administration activity, facility, or program is extended or for another purpose
involving the provision of similar services or benefits, Airline will maintain and operate such
facilities and services in compliance with all requirements imposed by the Nondiscrimination
Acts and Regulations listed in the Pertinent List of Nondiscrimination Authorities(as may be
amended) such that no person on the grounds of race, color, or national origin, will be
excluded from participation in, denied the benefits of, or be otherwise subjected to
discrimination in the use of said facilities.
8.3.2 With respect to this Agreement, in the event of breach of any of the above
Nondiscrimination covenants,the City will have the right to terminate this Agreement and to enter,
re-enter, and repossess said lands and facilities thereon, and hold the same as if this Agreement
had never been made or issued.
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8.4 Clauses for Construction/Use/Access to Real Property Acquired Under the
Activity, Facility or Program.
8.4.1 Airline, for himself/herself, his/her heirs, personal representatives,
successors in interest, and assigns, as a part of the consideration hereof,does hereby covenant and
agree, as a covenant running with the land, that (1) no person on the ground of race, color, or
national origin, will be excluded from participation in, denied the benefits of, or be otherwise
subjected to discrimination in the use of said facilities, (2) that in the construction of any
improvements on, over, or under such land, and the furnishing of services thereon, no person on
the ground of race, color, or national origin, will be excluded from participation in, denied the
benefits of, or otherwise be subjected to discrimination, (3) that Airline will use the premises in
compliance with all other requirements imposed by or pursuant to the List of Nondiscrimination
Acts and Authorities.
8.4.2 With respect to this Agreement, in the event of breach of any of the above
nondiscrimination covenants, the City will have the right to terminate the lease and to enter or re-
enter and repossess said land and the facilities thereon, and hold the same as if this Agreement had
never been made or issued.
8.5 Title VI List of Pertinent Nondiscrimination Acts and Authorities.
8.5.1 During the performance of this Agreement, Airline, for itself, its
assignees, and successors in interest (hereinafter referred to as the "Airline") agrees to comply
with the following nondiscrimination statutes and authorities; including but not Iimited to:
(a) Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et
seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin);
(b) 49 CFR part 21 (Non-discrimination in Federally-assisted
programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights
Act of 1964);
(c) The Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons
displaced or whose property has been acquired because of Federal or Federal-aid programs
and projects);
(d) Section 504 of the Rehabilitation Act of 1973 (29 USC § 794
et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27;
(e) The Age Discrimination Act of 1975, as amended (42 USC §
6101 et seq.) (prohibits discrimination on the basis of age);
(f) Airport and Airway Improvement Act of 1982 (49 USC § 471,
Section 47123), as amended (prohibits discrimination based on race, creed, color, national
origin, or sex);
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(g) The Civil Rights Restoration Act of 1987 (PL 100-209)
(broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964,
the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by
expanding the definition of the terms "programs or activities"to include all of the programs
or activities of the Federal-aid recipients, sub-recipients and contractors, whether such
programs or activities are Federally funded or not);
(h) Titles II and III of the Americans with Disabilities Act of 1990,
which prohibit discrimination on the basis of disability in the operation of public entities,
public and private transportation systems,places of public accommodation,and certain testing
entities (42 USC §§ 12131 — 12189) as implemented by U.S. Department of Transportation
regulations at 49 CFR parts 37 and 38;
(i) The Federal Aviation Administration's Nondiscrimination
statute (49 USC § 47123)(prohibits discrimination on the basis of race,color,national origin,
and sex);
(j) Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations, which ensures
nondiscrimination against minority populations by discouraging programs, policies, and
activities with disproportionately high and adverse human health or environmental effects on
minority and low-income populations;
(k) Executive Order 13166, Improving Access to Services for
Persons with Limited English Proficiency, and resulting agency guidance, national origin
discrimination includes discrimination because of limited English proficiency (LEP). To
ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons
have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
(1) Title IX of the Education Amendments of 1972, as amended,
which prohibits you from discriminating because of sex in education programs or activities
(20 USC 1681 et seq).
8.6 Subordination to Agreements with the United States.
This Agreement is subject and subordinate to the provisions of any agreement heretofore
or hereafter made between the City and the United States, including without limitation the terms
of any "Sponsor's Grant Assurances" or like agreement, the execution of which is required to
enable or permit the transfer of rights or property to the City for airport purposes,or the expenditure
of federal grant funds for Airport improvement, maintenance or development. Airline shall
reasonably abide by the requirements of agreements entered into between the City and the United
States, and shall consent to amendments and modifications of this Agreement if required by such
agreements or if required as a condition of the City's entry into such agreements.
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8.7 No Exclusive Rights.
Nothing contained in this Agreement shall be deemed to grant to Airline any exclusive
right or privilege within the meaning of 49 U.S.C. § 40103(e) with respect to activity on the
Airport.
8.8 Right to Develop Airport.
The City 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.
8.9 Right of Flight.
There is hereby reserved to the City, 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
Premises. This public right of flight shall include the right to cause in said airspace any noise
inherent in the operation of any aircraft used for navigation or flight through the said airspace or
landing at,taking off from, or operation on the Airport.
8.10 14 C.F.R.Part 77, Obstructions in Navigable Airspace.
Airline agrees to comply with the applicable notification and review requirements covered
in 14 Code of Federal Regulations ("C.F.R.") Part 77 of the Federal Aviation Regulations, in the
event future construction of a building is covered by this Agreement,or in the event of any planned
modification or alteration of any present or future building or structure situated on the Airport.
8.11 No Obstructions.
Airline,by accepting this Agreement,expressly agrees for itself, its successors,and assigns
that it will not erect nor permit the erection of any structure or object nor permit the growth of any
tree on the land rented hereunder above the mean sea level elevation of zero(0)feet for the Airfield
Areas, and fifty (50) feet for all other areas covered by this Agreement without the City's written
consent. In the event the aforesaid covenants are breached, the City reserves the right to enter
upon the Iand covered by this Agreement and to remove the offending structure or object or cut
the offending tree, all of which shall be at the expense of Airline.
8.12 War or National Emergency.
This Agreement shall be subject to whatever right the United States Government now has
or in the future may have or acquire, affecting the control, operation,regulation and taking over of
the Airport or the exclusive or non-exclusive use of the Airport by the United States during the
time of war or national emergency.
8.13 No Interference with Airport Operations.
Airline by accepting this Agreement agrees for itself, its successors, and assigns that it will
not do or permit to be done by its officers, agents, employees, contractors or invitees, any act or
omission which might interfere with the landing and taking off of aircraft from the Airport or
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otherwise constitute a hazard, or unreasonably interfere with the conduct of business by another
airline, tenant or contractor of the City, or unreasonably interfere with the performance of their
duties by the staff of the City or by the staff of the FAA,the TSA or any other agency of the U. S.
Government,or of the contractors thereof. In the event this covenant is breached,the City reserves
the right, in addition to any other rights or remedies under this Agreement or in law or equity, to
enter upon the Premises and cause the abatement of such interference at the expense of Airline.
8.14 SEC Rule 15c2-12.
Airline, upon the City's request, shall provide to the City such information as the City may
reasonably request in writing to comply with the City's continuing disclosure requirements under
SEC Rule 15c2-12, as it may be amended from time to time,provided,however,that Airline may,
in lieu of providing the requested information, direct the City to an Airline or SEC website where
the requested information is then currently available.
8.15 Americans with Disabilities Act("ADA").
Airline acknowledges that, pursuant to the Americans with Disabilities Act, 42 U.S.C.
Sections 12101 et seq. and Title 24 of the California Code of Regulations, as amended and
supplemented (ADA) and the Air Carrier Access Act, 49 U.S.C. Section 41705, as amended and
supplemented (ACAA),to the extent applicable to Airline, programs, services and other activities
provided by a public entity to the public, whether directly or through a contractor, must be
accessible to the disabled public. To the extent the ADA or the ACAA is so applicable: (a)Airline
shall provide the services specified in this Agreement in a manner that complies with the ADA or
the ACAA, as applicable, and any and all other applicable federal, State and Iocal disability rights
legislation; (b) Airline agrees not to discriminate against disabled persons in the provision of
services, benefits or activities provided under this Agreement; and (c) Airline further agrees that
any violation of this prohibition on the part of Airline, its employees, agents or assigns shall
constitute a material breach of this Agreement.
Article 9 AIRLINE DEFAULT AND TERMINATION BY CITY
9.1 Airline Default.
The occurrence of any one or more of the following events shall constitute an Event of
Default under this Agreement:
9.1.1 Airline becomes insolvent (as such term is defined under Section 101 of
the Federal Bankruptcy Code);or fails to pay its debts generally as they mature;or takes the benefit
of any present or future federal or state insolvency statute; or makes a general assignment for the
benefit of creditors.
9.1.2 Airline files a voluntary petition in bankruptcy or a petition or answer
seeking an arrangement of its indebtedness under the Federal Bankruptcy 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 is entered by or against Airline under any chapter of the Federal
Bankruptcy Code.
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9.1.3 By order or decree of a court, Airline is adjudged bankrupt or an order
shall be 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 Federal Bankruptcy 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 sixty(60) days of its issuance.
9.1.4 A petition under any chapter of the Federal Bankruptcy Code or an action
under any federal or state insolvency law or statute is filed against Airline and is not dismissed or
stayed within sixty(60) days after the filing thereof.
9.1.5 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 takes possession or control of all or
substantially all of the property of Airline and such possession or control continues in effect for a
period of sixty(60) days.
9.1.6 Airline becomes a corporation in dissolution.
9.1.7 The letting, license or other interest of or rights of Airline hereunder is
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 Sections 9.1.1 through
9.1.6.
9.1.8 Airline fails duly and timely to pay any Landing Fees and other fees and
charges due under this Agreement when due to the City, and such failure shall continue for ten
(10) days beyond Airline's receipt of a written notice of such breach or default from the Airport
Operator.
9.19 There occurs an assignment or transfer and such assignment or transfer is
not reversed within ten (10) days after written notice by the City.
9.1.10 Airline abandons the conduct of business at the Airport, and in connection
with this abandonment, suspend operations for a period of sixty(60)days in the absence of a labor
dispute, force majeure event in accordance with Section 23.12 or other governmental action in
which Airline is directly involved.
9.1.11 Airline fails to obtain and maintain the insurance required by Section 6.2
or provide copies of the policies or certificates (including without limitation those related to
renewals of such coverages) to the City as required and, only with respect to providing copies of
the policies or certificates,the failure to provide the copies shall continue for five(5)days beyond
Airline's receipt of a written notice from the City of such breach or default.
9.1.12 To the extent applicable, Airline fails to meet any of Airline's Security
Deposit requirements set forth in Section 4.6 and such failure continues for five (5) days beyond
Airline's receipt of a written notice from the City of such breach or default.
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9.1.13 Airline fails to keep, perform and observe each and every other promise,
representation, covenant and agreement set forth in this Agreement, and such failure continues for
a period of more than ten (10)days after the Airport Operator's delivery of written notice of such
failure or, if satisfaction of such obligation requires activity over a period of time, if Airline fails
to commence the cure of such failure within ten (10) days after Airline's receipt of such notice, or
thereafter fails to diligently prosecute such cure, or fails to actually cause such cure within sixty
(60) days of the Airport Operator's delivery of such notice.
9.2 City's Remedies.
9.2.1 General Remedies.
(a) Whenever any Event of Default occurs (other than a default
pursuant to Subsection 9.1.3 upon which termination of this Agreement, at the City's option,
shall be effective immediately without further notice), this Agreement and all of Airline's
rights hereunder shall terminate if the written notice of default so provides.
(b) The City's action pursuant to this Section 9.2.1 shall not in any
way limit the City in the pursuit of any other additional right or remedy available to the City
in law or in equity by reason of Airline's default.
9.3 Termination.
This Agreement may be terminated in advance of its Expiration Date in the following
events:
9.3.1 If any federal, state or Iocal government, or agency or instrumentality
thereof,takes, by condemnation or deed or conveyance in lieu thereof,title,possession,or the right
to possession of the Airport or any substantial portion thereof,the City may,at its option,terminate
this Agreement as of the date of such taking; or
9.3.2 If any court having jurisdiction renders a decision that has become final
and will permanently or for a substantial period of time prevent the City's performance of any of
its material obligations under this Agreement, either party hereto may terminate this Agreement
by written notice. This right of termination shall be and remain effective whether or not the City,
by taking affirmative action or by inaction, could have prevented the rendering of the decision, or
could have caused the decision to be vacated before it became final.
9.3.3 If this Agreement is terminated under this Section 9.3, all rights and
obligations of the parties shall terminate (with the exception of(i) any undischarged rights and
obligations that accrued prior to the effective date of such termination and (ii) any rights and
obligations that this Agreement expressly states shall survive such termination).
9.4 The City's Right to Perform.
All agreements and obligations to be performed by Airline under this Agreement shall be
at Airline's sole cost and expense and without any abatement of Landing Fees and other fees and
charges due under this Agreement.
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9.5 Airline's Rights Related to Termination.
In the event of any termination based on any breach by Airline of the covenants,terms and
conditions contained in this Agreement, all of Airline's rights, powers and privileges under this
Agreement shall cease. Airline shall have no claim of any kind whatsoever against the City by
reason of such termination, or by reason of any act by the City related to such termination.
9.6 Bankruptcy.
In no event shall this Agreement or any rights or privileges hereunder be an asset of Airline
under any bankruptcy, insolvency or reorganization proceedings.To the extent consistent with and
permitted under the United States Bankruptcy Code or similar debtor relief laws, if Airline seeks
protection under the United States Bankruptcy Code or similar debtor relief laws, or is currently
operating under the protection of the United States Bankruptcy Code or other similar debtor relief
laws,Airline shall comply with every provision of this Agreement as and when required under this
Agreement, including without limitation performing any required remediation relating to any
environmental matter pursuant to Airline's obligations under Article I 1 which arose prior to or
arises during the course of Airline's bankruptcy case. No Cargo Carrier will be allowed to assume
this Agreement without performing any required remediation as part of the cure of any Event of
Default under this Agreement.
Article 10 AIRPORT DEFAULT AND TERMINATION BY AIRLINE
10.1 Events of Default.
The events described below are deemed Events of Default by the City hereunder:
10.1.1 The City fails to keep, perform or observe any material term, covenant or
condition herein contained to be kept, performed, or observed by the City and such failure
continues for thirty(30) days after receipt of written notice from Airline; or, if by its nature such
default cannot be cured within such thirty(30) day period,the City shall not commence to cure or
remove such default within said thirty (30) days and to cure or remove the same as promptly as
reasonably practicable;
10.1.2 The Airport is closed to flights in general or to the flights of Airline, for
reasons other than those circumstances within Airline's control, and Airport fails to be reopened
to such flights within thirty(30)consecutive days from such closure.
10.1.3 The Airport is permanently closed as an air carrier airport by act of any
Federal, state, or local government agency having competent jurisdiction; or Airline is unable to
use Airport for a period of at least thirty(30) consecutive days due to any law or any order, rule or
regulation of any governmental authority having jurisdiction over the operations of the Airport; or
any court of competent jurisdiction issues an injunction preventing the City or Airline from using
Airport for airport purposes, for reasons other than those circumstances within Airline's control,
and such injunction remains in force for a period of at least thirty (30)consecutive days.
10.1.4 The United States Government or any authorized agency of the same (by
executive order or otherwise)assumes the operation,control or use of the Airport in such a manner
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as to substantially restrict Airline from conducting its operations, if such restriction be continued
for a period of thirty(30) consecutive days or more.
10.2 Airline's Remedy.
So long as Airline is not in default as set forth in Article 9 of this Agreement, including,
but not limited to, payments due to the City hereunder, Airline may cancel this Agreement upon
the occurrence of an Event of Default set forth in Section 10.1. In such event, Airline shall serve
thirty (30)day advance written notice of cancellation to the City. All Landing Fees and other fees
and charges due under this Agreement shall cease as of the date of such cancellation. In addition
to the cancellation of this Agreement, Airline may exercise any remedy provided by law or in
equity.
Article 11 ENVIRONMENTAL
11.1 For purposes of this Agreement, the following definitions shall apply to environ-
mental matters:
"Discharge"means an act or omission by which Hazardous Materials, Solid Waste,Process
Water, or any substances or materials regulated under Environmental Laws, now or in the future,
are leaked, spilled, poured, deposited, or otherwise entered into wetlands, groundwater, waters in
the State of Texas, or waters of the United States, or by which those substances are deposited
where, unless controlled or removed, they may drain, seep, run, or otherwise enter said waters.
"Environmental Impact Claim" means any claim, suit,judgment, penalty, fine, loss, cost
recovery action, administrative proceeding, request for information (when such request is by a
governmental agency), order or citation by any governmental agency, notice, cost, or expense
(including but not limited to documented costs of investigation,study,cleanup,removal,response,
remediation, transportation, disposal, restoration, monitoring, and reasonable fees of consultants,
contractors, and attorneys) which arises out of, is related to, alleges, or is based on the presence,
transportation, handling, treatment, storage, or Release, dispersal, disposal, emission, escape,
Discharge, or migration of any Hazardous Material(s), Process Water, or Solid Waste, any other
chemical, material, irritant, regulated substance, or toxic substance, whether solid, liquid, or
gaseous in nature, or which has any adverse effect on wildlife. Environmental Impact Claim shall
exclude personal injury, wrongful death, product liability, and environmental justice claims.
"Environmental Indemnitees"has the meaning set forth in Section 10.8.
"Environmental Law(s)" means all existing and future federal, state, and local laws and
permits, including without limitation the Airport Rules and Regulations and all other statutes,
ordinances,rules, orders and regulations relating to protection of the environment,wildlife,public
health or public safety.
"Greenhouse Gas"or"GHG"has the same definition as in the Mandatory Greenhouse Gas
Reporting Rule (40 C.F.R. § 98.6 (2009)), as it may be amended from time to time.
"Hazardous Material(s)"means any substance regulated under or subject to Environmental
Laws: (a)the presence of which requires investigation, abatement, response, removal, or
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remediation under any Environmental Law;or(b)that is or becomes defined as a hazardous waste,
hazardous substance, toxic substance, regulated substance, pollutant, or contaminant under any
Environmental Law, including without limitation the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, the Texas Water
Code, or the Texas Health and Safety Code; or (c) the presence of which on the Airport poses or
threatens to pose a hazard to the health or safety of persons on or about the Airport; or (d) that
contains, sewage, gasoline, diesel fuel, petroleum hydrocarbons, natural gas liquids, ethylene
glycol, propylene glycol, potassium acetate, polychlorinated biphenyls ("PCBs"), asbestos, lead
paint, or urea formaldehyde foam insulation.
"NPDES"means the National Pollutant Discharge Elimination System.
"Process Water" means water, other than storm water or rainwater, that during
manufacturing,treating, processing, or cleaning, comes into direct contact with or results from the
production or use of any raw material,intermediate product,finished product,by product,or waste.
"Release"means any depositing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the environment, or a threat
of release such that a release may or could enter the environment.
"Solid Waste" has the same meaning as in the Resource Conservation and Recovery Act
and the Texas Health and Safety Code.
"SWPPP"means Storm Water Pollution Prevention Plan.
"TPDES"means the Texas Pollutant Discharge Elimination System.
"Water in the State of Texas" has the same meaning as in Texas Water Code Section
26.001, as amended from time to time.
"Waters of the United States" has the same meaning as in 40 C.F.R. Section 122.2, as
amended from time to time
All other terms used herein have the meaning set forth in Article I, "General Definitions."
11.2 Airline Representations,Warranties,And Covenants.
Airline represents, warrants, and covenants the following:
11.2.1 Airline has obtained and throughout the term of this Agreement shall ob-
tain and maintain all applicable licenses, permits, registrations and other authorizations and ap-
provals required under Environmental Laws and shall provide any notices required under Envi-
ronmental Laws for conducting its operations at the Airport during the term of this Agreement.
Airline shall require Airline Entities to obtain and maintain all applicable licenses, permits, regis-
trations and other authorizations required by Environmental Laws in order to conduct their opera-
tions and activities at the Airport.
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11.2.2 Airline shall comply and shall require Airline Entities to comply, with all
applicable Airport Rules and Regulations, so long as such Airport Rules and Regulations do not
unreasonably affect Airline's rights under this Agreement. Such Airport Rules and Regulations
shall be reasonable, nondiscriminatory and not in conflict with any Environmental Laws.
11.2.3 Airline shall not cause or contribute to or allow or permit Airline Entities
to cause or contribute to:
(a) any Release or Discharge of any Hazardous Material, Solid
Waste, or Process Water at Airport, unless authorized by an Environmental Law or Airport
Rules and Regulations;
(b) any violation of any applicable Environmental Law as a result,
in whole or in part, of the use by or operations of Airline at Airport, or those of Airline Enti-
ties;
(c) any Release or Discharge which is a materially contributing
cause of the City exceeding the effluent limits of any individual storm water discharge permit
issued to the City, Multi-Sector General Permit, Municipal Separate Storm Sewer System
permit, or any applicable federal effluent limitation guideline; or
(d) any contamination or pollution of the soil, surface waters, or
groundwater at or underlying the Airport.
11.2.4 Airline shall handle, use, store, dispose of, or otherwise manage, and shall
require Airline Entities to handle, use, store, dispose of, or otherwise manage any Hazardous Ma-
terial, Process Water, or Solid Waste at the Airport in a lawful and prudent manner and so as to
prevent the Release or Discharge of any Hazardous Material, Process Water, or Solid Waste that
does or may pollute or contaminate the environment, or that does or may adversely affect the
health,welfare, or safety of persons whether located within the Airport. Without limiting the fore-
going,Airline shall not conduct or allow any Airline Entities to conduct any operations or activities
involving the use or application of ethylene glycol,propylene glycol, or any other substance in de-
icing or anti-icing at any location at the Airport except in accordance with all applicable Environ-
mental Laws and Airport Rules and Regulations.
11.2.5 Airline shall be responsible for the proper removal and disposal of all Haz-
ardous Materials generated by Airline, or resulting from Airline's use, activities, and operations,
at the Airport, including those activities and operations conducted on Airline's behalf by Airline
Entities.
11.2.6 Airline understands and acknowledges that certain of the City's future
capital projects may require review or approval by the FAA,the Environmental Protection Agency
("EPA"), or the Texas Commission on Environmental Quality ("TCEQ")or their successor agen-
cies, pursuant to requirements imposed upon the Airport or the City, including but not limited to
State Implementation Plans,General Conformity Determinations,other requirements related to the
status of the Dallas-Fort Worth region as non-attainment for ozone, and any reduction in Green-
house Gas emissions. If requested by the City, Airline shall reasonably assist the City in preparing
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such submittals as are required of the City by FAA, EPA, or TCEQ, or their successor agencies,
in connection with City capital projects which benefit Airline.
11.2.7 Airline shall require Airline Entities to undergo such training as is required
by applicable Environmental Laws and Airport Rules and Regulations. Airline shall designate
which of its employees should undergo such training.
11.2.8 If Airline causes or contributes to a Release, Discharge, or spill of Haz-
ardous Materials, Solid Waste, or Process Water at the Airport that is above any applicable report-
able quantity set forth in any applicable Environmental Law, Airline shall report such Release or
Discharge to the appropriate governmental authorities in compliance with applicable Environmen-
tal Law.Airline shall require Airline Entities to report any Release or Discharge to the appropriate
governmental authorities, in compliance with applicable Environmental Law, if said third party
causes or contributes to a Discharge or Release of Hazardous Materials, Solid Waste, or Process
Water above any reportable quantity set forth in any applicable Environmental Law.
11.2.9 Airline acknowledges that the City and Airline are subject to certain Na-
tional and Texas Pollution Discharge EIimination System permits("NPDES"and"TPDES"), state
and federal storm water regulations, and federal effluent limitation guidelines, including, without
limitation, EPA Administered Permit Programs, 40 C.F.R. § 122(2009), as amended from time to
time, for operations at the Airport. Airline shall conduct operations and activities at the Airport,
including but not limited to de-icing,anti-icing,and construction,and shall require Airline Entities
to conduct operations and activities at the Airport in compliance with applicable Environmental
Laws and Airport Rules and Regulations. Airline acknowledges that its reasonable cooperation is
necessary to ensure Airport's compliance with any applicable NPDES or TPDES storm water per-
mits and effluent limitation guidelines under Environmental Laws. Airline shall minimize the ex-
posure to storm water of materials generated,stored,handled,or used by Airline or Airline Entities
at the Airport including without limitation soil and sediment exposed by construction activities,
Solid Waste, and Hazardous Materials, by implementing and requiring implementation of certain
"Best Management Practices" as defined by Environmental Laws. Airline further acknowledges
that any TPDES or NPDES storm water discharge permit issued to the City or any effluent limita-
tion guidelines applicable to the Airport or Airline are incorporated by reference into this Agree-
ment to the extent affecting Airline's operations at or use of the Airport or operations or activities
conducted on its behalf at the Airport, or necessitating Airline's reasonable cooperation to assure
the City's compliance therewith.The City shall endeavor to negotiate reasonable and cost effective
terms and conditions of any permits issued to the City which may affect Airline's operations at or
use of the Airport or operations or activities conducted on its behalf at the Airport, or which may
necessitate Airline's reasonable cooperation to assure the City's compliance therewith.
11.2.10 Airline or Airline Entities shall not create any human-made structure, land
use practice, or human-made feature,or maintain any condition,that creates an unreasonable wild-
life attraction, including, but not limited to, architectural features, Iandscaping, waste disposal
sites, agricultural or aquacultural activities, without appropriate coverings or other mitigation
measures.
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11.3 Information to be Provided to the City.
11.3.1 If Airline receives any written notice, correspondence, citation, order,
warning, complaint, inquiry, claim or demand regarding the Airline's operations at the Airport that
is not legally privileged, made confidential by applicable law, or protected as trade secrets:
(a) concerning any alleged contamination, or Discharge, or Re-
lease of Hazardous Material, Solid Waste, Process Water by Airline or by Airline Entities; or
(b) alleging that Airline or an Airline Entity is the subject of an
Environmental Impact Claim or alleging that Airline or an Airline Entity, or may be, in vio-
lation of any Environmental Law(s); or
(c) asserting that Airline or any such third party as identified in
clauses (1) and (2)above is liable for the cost of investigation or remediation of a Release or
Discharge;
11.3.2 Airline shall immediately, but not Iaer than five (5) days after Airline's
receipt, inform the City and Airport Operator in writing of same , including a copy of such notice
received by Airline.
11.3.3 Airline shall simultaneously provide to the City and Airport Operator cop-
ies of its submittals of any non-privileged reports or notices required under Environmental Laws
to any governmental agency regarding:
(a) Airline's alleged failure to comply with any Environmental
Laws at the Airport, or
(b) any Release or Discharge arising out of the past or present op-
erations at or use of the Airport by Airline or Airline Entities.
11.3.4 Airline shall make available, within ten (10) days of Airline's receipt of
the City's written request,the non-privileged documents that Airline has submitted to any govern-
mental agency pertaining to the environmental compliance status of Airline's operations at or use
of the Airport,including without limitation any and all non-privileged records,permits,test results,
sample results,written or electronic documentation, studies, or other documentation regarding en-
vironmental conditions or relating to the presence, use, storage, disposal, or treatment of any Haz-
ardous Material or Solid Waste at the Airport by Airline or Airline Entities.
11.4 Response and Compliance Actions.
11.4.1 Without limiting the indemnity obligations of Section 11.7, if during the
term of this Agreement Airline or an Airline Entity is the sole cause of a Release, Discharge, or
spill of a Hazardous Material(including,but not limited to those which contaminate or pollute any
surface water, ground water, infrastructure, or conveyance system), as is reasonably determined
by the City pursuant to Environmental Laws, at any portion of the Airport, in connection with their
operations at the Airport,Airline shall:
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(a) orally notify the City and the Airport Operator of such Release,
Discharge, or spill;
(b) report such Release, Discharge, or spill to appropriate govern-
mental agencies in accordance with applicable Environmental Laws, including but not limited
to 30 Tx. Admin. Code § 327.3, as it may be amended from time to time;
(c) immediately abate and respond to the Release, Discharge, or
spill of a Hazardous Material, as required by applicable Environmental Laws, including but
not limited to 30 Tx. Admin. Code § 327.5, as it may be amended from time to time;
(d) take all further actions necessary or required under Environ-
mental Laws to mitigate any imminent threat to human health or the environment; and
(e) undertake any further repairs,remediation,or corrective actions
as are required by Environmental Laws or a governmental agency with jurisdiction, to reme-
diate any such Release,Discharge or spill of a Hazardous Material,and any resulting pollution
or contamination.
11.4.2 Without limiting the indemnity obligations of Section 11.7, if, as is rea-
sonably determined by the City, Airline or an Airline Entity is the sole cause of a Release, Dis-
charge or spill of a Hazardous Material at the Airport, or one of multiple contributors to a Release,
Discharge or spill of a Hazardous Material within the Airport, Airline shall be responsible for
ensuring that the notification, reporting, abatement, remediation, and other actions required by
11.4.1 are accomplished.At the time the City makes a determination pursuant to subsection 11.4.2,
the City shall provide Airline with all non-privileged records, permits, test results, sample results,
written or electronic documentation,studies or other documentation used to support its determina-
tion. Nothing in this Agreement shall prevent Airline from seeking to recover its costs from po-
tentially responsible parties.
11.4.3 If the City cannot determine with reasonable effort that Airline is a cause
of or has contributed to a Release, Discharge, or spill at or from the Airport, Airline shall not be
responsible for any obligation to report, investigate or remediate it. If the City cannot identify with
reasonable effort any of the parties contributing to or responsible for a Release or Discharge, or
spill at or from the Airport, the City shall be responsible for any obligation to report, contain,
investigate, or remediate such contamination, Release, or Discharge, or spill.
11.4.4 If, as is reasonably determined by the City, Airline:
(a) does not diligently take immediate and all other actions re-
quired by applicable Environmental Laws, including but not limited to 30 Tx. Admin. Code
§ 327, in response to a Release, Discharge or spill for which it is responsible under Section
11.4, within the time(s)prescribed by such Environmental Law(s); or
(b) does not perform or complete all necessary repairs, corrective
actions or remediation for which it is responsible under Section 11.4 within the time(s) pre-
scribed by applicable Environmental Laws,or within the time reasonably necessary to enable
the City to meet its obligations under Environmental Laws (subject to the condition that the
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City must first provide reasonable advance written notice to Airline of such obligations, ex-
cept in emergency circumstances in which such advance notice is not possible),then the City,
in addition to its rights and remedies described elsewhere in this Agreement, may, at its elec-
tion,upon reasonable written notice, enter the affected area,and take whatever action the City
reasonably deems necessary to protect the public health and safety and the environment, or to
enable the City to meet its obligations under Environmental Laws, within the time required
under such Environmental Laws,at Airline's expense,although nothing herein shall prejudice
the right of Airline to contest the City's determinations made under this Section 11.4.4.
11.5 Correction of Environmental Non-compliance.
11.5.1 If the operations or activities at or use of the Airport by Airline or Airline
Entities are in alleged non-compliance with any applicable Environmental Law (as is reasonably
determined by the City or as is determined by any governmental agency with enforcement author-
ity regarding such alleged non-compliance)or Airport Rules and Regulations, or result in contam-
ination or pollution at or under the Airport,and provided that the situation or condition in question
does not,as determined by the City in its reasonable discretion,require immediate action pursuant
to applicable Environmental Laws and Section 11.4.4, the City agrees to notify Airline in writing
of the alleged noncompliance or contamination or pollution and shall require Airline to take action
to address such non-compliance within thirty (30) days of Airline's receipt of notice, unless com-
pliance is required sooner by a governmental agency or applicable Environmental Law. Within
that thirty(30)day period, or such shorter period as is required by applicable Environmental Law
or governmental agency,Airline shall have the opportunity to take whatever action is necessary or
required by Environmental Laws, to correct such noncompliance, ensure that it is corrected, or
provide the City a binding commitment to do so within a reasonable time. Airline shall also have
the right during that thirty(30)day period to challenge any City determination of non-compliance.
Airline's obligations to the City under this Section may be deferred, upon mutual consent of the
parties, until a final resolution of or ruling on such challenge has been issued. Should Airline pre-
vail in such a challenge, Airline shall have no further obligation under this Section with respect to
that particular alleged non-compliance.
11.5.2 If Airline does not take such corrective action, challenge the City's deter-
mination of non-compliance, or provide a binding commitment to address the non-compliance
within the thirty(30)day period referenced in Section 11.5.1,the City or its authorized contractors
and consultants may, at the City's option, enter any part of the Airport and take such measures as
the City may reasonably deem necessary to correct the alleged non-compliance and to investigate
and remediate any related contamination, all at Airline's expense.All reasonable and documented
costs associated with any action by the City or its contractors or consultants in connection with
this Section, including but not limited to reasonable attorneys'fees and expenses, and Airport staff
time and expenses, shall be subject to the reimbursement and indemnification requirements of this
Article.
(a) Nothing in this Section is intended or shall be construed so as
to prevent the City or Airline from exercising, in their reasonable discretion,any rights granted
or available elsewhere in this Article, in this Agreement, or by law.
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11.6 Corrective Action Process.
11.6.1 Before commencing any investigation, remediation, or corrective action
at the Airport under this Agreement,and except for any immediate abatement action required under
Section 11.4, Airline shall provide the related proposed plans for such investigation, remediation
or corrective action to the City for approval, which shall not be unreasonably withheld. The work
shall be performed at Airline's expense, and the City shall have the right to review and inspect all
such work at any time using consultants and representatives of the City's choice, at the City's
expense. Specific cleanup levels for any environmental remediation work shall comply with ap-
plicable Environmental Laws. Airline shall, at Airline's own cost and expense, have all tests per-
formed,and reports and studies prepared, and shall provide such information to any governmental
agency as may be required by Environmental Laws, with a copy to the City. This obligation in-
cludes but is not limited to any requirements for a site characterization, site assessment, Affected
Property Assessment Report, and remedial action plan that may be necessary. In the event deed
recordation by the City is necessary, Airline shall reimburse the City for all deed recordation fees
and reasonable attorneys' fees incurred in connection with such recordation.
11.6.2 Any remedial or other activity undertaken by Airline under this Article
shall not be construed to impair Airline's rights, if any,to seek contribution or indemnity from any
person.
11.6.3 Airline may not seek a Municipal Setting Designation for any groundwater
underlying the Airport without obtaining the City's written approval in advance.
11.7 Environmental Indemnification and Reimbursement.
11.7.1 Notwithstanding any other provision to the contrary, and without limiting
any other indemnity in this Agreement,Airline agrees to indemnify, defend, and hold harmless the
City, its past, present or future directors, officers, members, agents and employees, the City's
council, council members, agents, and employees and the Airport Operator ("Environmental In-
demnitees"), from and against any and all claims, demands, penalties, fines, suits, actions, admin-
istrative proceedings(including formal and informal enforcement),government orders,judgments,
loss, damages, liabilities, costs, and expenses (including but not limited to reasonable and docu-
mented attorneys'and consultants' fees and expenses, litigation costs, expert witness fees, and ex-
penses of investigation, removal, remediation, or other required plan, report, or response action)
when incurred and whether incurred in defense of actual litigation or in reasonable anticipation of
litigation to the extent resulting from:
(a) the breach by Airline of any representation or warranty made in
this Article; or
(b) the failure of Airline to meet its obligations under this Article
in a full and timely manner, whether caused by Airline or any third party under Airline's
direction or control; or
(c) documented loss by any Environmental Indemnitee(s)from any
Environmental Impact Claim, to the extent caused by the operations, activities, action or in-
action of Airline or Airline Entities, at the Airport during the term of this Agreement.
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11.7.2 In the event the City undertakes any action, including but not limited to
response or corrective action, repairs, or remediation, in the exercise of its rights with respect to
Airline under this Article, Airline shall reimburse the City, upon reasonable written notice by the
City, for all reasonable and documented costs that the City incurs in association with such action,
including but not limited to consultants' fees, contractors' fees, reasonable attorneys' fees and ex-
penses, and expenses of investigation, repair, response or corrective action and remediation.
11.7.3 Notwithstanding any other provision to the contrary, and to the extent per-
mitted by law, the City agrees to indemnify and hold harmless Airline and its directors, officers,
agents and employees from and against any and all claims,demands,penalties,fines,suits,actions,
administrative proceedings(including informal proceedings),government orders,judgments, loss,
damages, liabilities, costs, and expenses (including but not limited to reasonable and documented
attorneys'and consultants'fees and expenses, litigation costs,expert witness fees, and expenses of
investigation,removal,remediation, or other required plan or response action)to the extent result-
ing from (i) failure of the City to meet its obligations under this Article, or (ii) the documented
loss by Airline, its directors, officers, agents or employees to a third party or governmental entity
from any Environmental Impact Claim, to the extent resulting from the operations, activities, ac-
tions or inaction of the City or any other party under the City's direction and control.
11.7.4 Regardless of the date of termination of this Agreement, the indemnifying
party's representations, obligations and liabilities under this Article shall continue as long as the
indemnified party bears any liability or responsibility under this Article or the Environmental
Laws.
11.8 Limitations.
Airline's obligations under this Article shall not apply to:
11.8.1 Contamination that existed at the Airport prior to Airline's initial occu-
pancy or operations at such area(s) of contamination at the Airport, provided that neither Airline
nor any other party under Airline's direction or control, or conducting operations or activities on
its behalf, subsequently contributed to such contamination; or
11.8.2 Releases that migrate onto, into, or from the Airport and that were not
caused by Airline or third parties under Airline's direction or control or conducting operations or
activities on its behalf; or
11.8.3 Releases or Discharges on, at, or from the Airport not caused by Airline
or Airline Entities; or
11.8.4 Releases, Discharges, or contamination to the extent caused by gross neg-
Iigence or willful misconduct by the City, its agents or employees or any other party under the
City's direction or control.
11.9 Waiver.
Any waiver of any provision of this Article,or any delay by the City in the enforcement of
any right hereunder, shall neither be construed as a continuing waiver, nor create an expectation
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of non-enforcement of that or any other provision or right. In order to be effective, any waiver of
any right, benefit, or power hereunder must be in writing and signed by an authorized
representative of the City, it being intended that no waiver shall be implied by the City's conduct
or failure to act. Any specific written waiver shall be applicable only to the particular facts and
circumstances thereby addressed and shall not be of any effect with respect to future events, even
if any of said fixture events involve substantially similar circumstances.Any remedies provided for
in this Article shall be cumulative and in addition to,and not in lieu of,any other remedies available
to City at law, in equity, or otherwise.
11.10 Survival of Environmental Provisions.
Unless specifically stated elsewhere herein, the provisions of this Article, including the
representations,warranties,covenants and indemnities of Airline, are intended to and shall survive
termination of this Agreement.
11.11 Resource Conservation and Recycling.
The City reserves the right to institute such policies, programs and measures as may be
necessary or desirable, in the City's reasonable discretion, for the conservation or preservation of
energy,energy related services,water, and other natural resources or as may be required to comply
with any applicable codes, rules and regulations, whether mandatory or voluntary. Airline shall
comply with all federal, state, and local laws, rules, regulations, and ordinances and rules and
regulations pertaining to recycling and energy conservation and management.Airline and the City
shall use good faith efforts to abide by and fully cooperate with each other in all aspects of such
policies and programs, and nothing in this Section will adversely affect Airline's or the City's
rights under this Agreement.
Article 12 ASSIGNMENT
Airline shall not, directly or indirectly, assign, sell, hypothecate or otherwise transfer this
Agreement, without the prior written consent of the City, such consent not to be unreasonably
withheld. The foregoing shall not prevent the assignment of this Agreement or any portion thereof
to any corporation with which Airline may merge or consolidate; provided however, such
successor corporation within a reasonable period of time shall provide written acknowledgement
by a duly authorized corporate officer to the City that it has assumed all obligations of Airline and
will fully honor all terms and conditions set forth in this Agreement.
Article 13 MISCELLANEOUS PROVISIONS
13.1 Nature of Agreement.
This Agreement shall not be construed to be a lease of any Airport property nor create a
landlord-tenant relationship between the City and Airline.
13.2 Governing Law and Venue.
This Agreement has been entered into and shall be governed by, construed and interpreted
in accordance with the laws of the State of Texas. Venue of any action brought under this
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Agreement shall be vested in the state courts of Texas in the County of Tarrant or if federal
jurisdiction is appropriate, in the United States District Court in the Northern District of Texas.
13.3 Entire Understanding.
This Agreement contains the entire and only understanding and agreement of City and
Airline, which by accepting this Agreement, acknowledge that there is no other written or oral
understanding or agreement between them with respect to the subject matter of this Agreement
and that this Agreement supersedes all prior negotiations, discussions, obligations and rights of
the City and Airline. No waiver, modification, amendment or alteration of this Agreement shall
be valid unless it is expressed in writing and signed by authorized representatives of Airline and
the City. Airline and the City acknowledge that no other party, nor any agent or attorney of any
other party, has made any promise, representation, waiver or warranty whatsoever, expressed or
implied, which is not expressly contained in writing in this Agreement and further acknowledge
that this Agreement was not executed in reliance upon any collateral promise, representation,
waiver or warranty, or in reliance upon any belief as to any fact not expressly recited in this
Agreement.
13.4 Amendments.
Except as specifically provided herein, neither this Agreement, nor any of its terms or
provisions, may be changed, waived, discharged, or terminated, except by a written instrument
signed by the party against which the enforcement of the change,waiver,discharge, or termination
is sought.
13.5 Cumulative Rights.
Each right of the City and Airline is cumulative and is in addition to every other legal right
that the party may have in the event of any default by the other.
13.6 Construction to Save Agreement.
If any term, covenant, condition, or provision of this Agreement is held by a court of
competent jurisdiction to be invalid,void,or unenforceable,the remainder of the provisions hereof
shall remain in full force and effect and in no way affected, impaired, or invalidated thereby. It is
the intention of the parties hereto that if any provision of this Agreement is capable of two
constructions, one of which would render the provision void and the other of which would render
the provision valid, then the provision shall have the meaning which renders it valid.
13.7 No Waiver.
No waiver of default of any of the terms,covenants and conditions of this Agreement to be
performed, kept and observed by the other party shall be construed or operate as a waiver of any
subsequent default of any of the terms,covenants or conditions of this Agreement to be performed,
kept and observed by the other party. No failure on the part of either party to require or exact full
and complete compliance by the other party with any of the covenants, conditions, or agreements
of this Agreement be construed in any manner as a change in or to the terms of this Agreement or
prevent the enforcement in full of any provisions.
_33_
Execution Copy
13.8 Relationship of Parties.
Nothing in this Agreement shall be deemed or construed by the City or Airline, or by any
third party,as creating the relationship of principal and agent,partners,joint venturers,or any other
similar such relationship between the City and Airline.
13.9 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement other than as specifically and
expressly provided in this Agreement.
13.10 Successors and Assigns.
All of the terms, provisions, covenants, stipulations, conditions and considerations in this
Agreement shall extend to and bind the legal representatives,successors, and assigns of each party
to this Agreement.
13.11 Labor Disputes. Airline agrees to use commercially reasonable efforts to avoid
disruption to the City, its tenants or members of the public arising from labor disputes involving
Airline, and in the event of a strike, picketing, demonstration or other labor difficulty involving
Airline, to use its good offices, including the utilization of available legal remedies, to minimize
or eliminate any disruption to the City, its tenants or members of the public, arising from such
strike, picketing, demonstration or other labor difficulty.
13.12 Force Majeure.
If either party is delayed or hindered in or prevented from the performance of any act
required under this Agreement by reason of strikes, lockouts, labor disputes, inability to procure
labor or materials, failure of power, riots, insurrection, terrorism, war, fire or other casualty, or
other reason of a similar nature beyond the reasonable control of the party delayed in performing
work or doing acts required under this Agreement, performance of such act shall be excused for
the period of the actual delay attributable to such causes, and the period for the performance of
any such act shall be extended for a period equivalent to the period of such delay (any such delay
is herein referred to as an "Unavoidable Delay"). This Section shall not be applicable to Airline's
obligations to procure insurance or to pay Landing Fees and other fees and charges due under this
Agreement. If any provision of this Agreement negates or limits the period of any force majeure
or Unavoidable Delay extension, such provision shall override this Section 14.12. Airline shall
give the City notice of any Unavoidable Delay within a reasonable time (not to exceed one (1)
year) following the occurrence of the delaying event.
13.13 No Personal Liability.
No director, officer, agent, employee, or elected official of either party shall be charged
personally or contractually liable by or to the other party under any term or provision of this
Agreement, or because of any breach of this Agreement,or because of their execution or attempted
execution of this Agreement.
-34-
Execution Copy
13.14 Acceptance of Payments.
The subsequent acceptance of payments hereunder by the City from Airline shall not be
deemed to be a waiver of any preceding breach by Airline of any term, covenant, or condition of
this Agreement, other than the failure of Airline to pay the particular fees or rent so accepted,
regardless of the City's knowledge of such preceding breach at the time of acceptance of such
landing fees and/or rent.
13.15 Attorneys' Fees.
13.I5.1 If the City shall, without any fault, be made a party to any litigation
commenced by or against Airline arising out of Airline's use or enjoyment of Airport or the
Premises and as a result of which Airline is finally adjudicated to be liable,then Airline shall pay
all costs and reasonable attorneys' fees incurred by or imposed upon the City in connection with
such litigation.
13.15.2 In any action by the City or Airline against the other for recovery of any
sum due under this Agreement, or to enforce any of the terms, covenants or conditions contained
herein, the prevailing party shall be entitled to reasonable attorneys' fees in addition to costs and
necessary disbursements incurred in such action. Each party shall give prompt notice to the other
of any claim or suit instituted against it that may affect the other party.
13.16 Taxes.
13.16.1 This Agreement may result in or create a taxable possessory interest and
be subject to the payment of property taxes.
13.16.2 Airline shall be liable for, and shall pay throughout the Term, all taxes
payable for, or on account of (a)the activities conducted by Airline on the Airport; (b) all taxes,
if any, on the personal property of Airline on or at the Airport;and(c)any sales,use,or other taxes
levied on, or measured by,the Landing Fees and other fees and charges due under this Agreement,
whether imposed on Airline or on the City.
13.16.3 Airline shall reimburse the City for all such taxes paid or payable by the
City. With respect to any such taxes payable by the City that are levied on, or measured by, the
Landing Fees and other fees and charges due under this Agreement, Airline shall pay to the City
with each payment an amount equal to the tax levied on, or measured by, that particular payment.
All other tax amounts for which the City is or will be entitled to reimbursement from Airline shall
be payable by Airline to the City at least fifteen (15) days prior to the due dates of the respective
tax amounts involved;provided that Airline shall be entitled to a minimum often(10)days' written
notice of the amounts payable by Airline.
13.16.4 Airline may contest, in its own name or the name of the City, the validity
or amount of any tax it shall be required to pay to a taxing entity; provided, however, that Airline
shall defend, indemnify and hold the City harmless from all liability and expense arising from such
contest, which obligations shall survive expiration or earlier termination of this Agreement and
shall provide security satisfactory to the City for its performance of such indemnification
obligation.
-35-
Execution Copy
13.17 Memorandum of Lease.
In the event that the City so requests,Airline shall execute,attest,acknowledge,and deliver
for recording a short form Memorandum of Lease of this Agreement.
13.18 Approval or Consent.
Whenever consent or approval is required herein by either party to the other, such consent
or approval shall not be unreasonably withheld, conditioned, or delayed.
13.19 Time of the Essence.
Time is of the essence of this Agreement and of each and all of its terms, conditions,
covenants and provisions.
13.20 Notices.
All notices and payments under this Agreement may be delivered or mailed. If delivered
by messenger or courier (including overnight air courier), they shall be deemed delivered when
received at the Street Addresses listed in Section 1.1. If mailed or sent via overnight courier, they
shall be sent to the Overnight Delivery and Street Address provided in Article I or to such other
respective addresses as either party may from time to time designate to the other party in writing.
All notices and payments mailed by regular mail (including first class) shall be deemed to have
been given on the fifth business day following the date of mailing, if properly mailed and
addressed. Notices and payments sent by certified or registered mail shall be deemed to have been
given on the third business day following the date of mailing, if properly mailed and addressed.
For all types of mail, the postmark affixed by the United States Postal Service shall be conclusive
evidence of the date of mailing. Notices delivered via courier or overnight courier shall be deemed
to have been given upon arrival. Notices under this Agreement are sufficient if made via email
provided such email notice has been sent to an employee of the recipient Party having knowledge
of the matter contained in the notice and is conspicuously identified as a notice under this
Agreement, and shall be deemed to have been given on the day the email is sent.
13.21 Counterparts.
This Agreement may be executed simultaneously in counterparts, each of which shall be
deemed to be an original copy of this Agreement and, when taken together, shall be deemed to be
one and the same Agreement.
13.22 Capacity to Execute.
The individuals executing this Agreement personally warrant that they have full authority
to execute this Agreement on behalf of the entity for whom they are acting herein.
13.23 Incorporation of Exhibits.
All exhibits and attachments referred to in this Agreement are intended to be and are hereby
specifically made a part of this Agreement.
-36-
Execution Copy
13.24 Titles. /
Paragraph titles are inserted only as a matter of convenience and for reference, and in no
way define, limit or describe the scope or extent of any provision of this Agreement.
13.25 Other Agreements.
Other than as set forth herein, nothing contained in this Agreement shall be deemed or
construed to nullify, restrict or modify in any manner the provisions of any other lease or contract
between City and Airline authorizing the use of the Airport, its facilities and appurtenances.
13.26 Agent for Service.
It is expressly understood and agreed that if Airline is not a resident of the State of Texas,
or is an association or partnership without a member or partner resident of said state,or is a foreign
corporation not licensed to do business in Texas, then in any such event, Airline shall appoint an
agent for the purpose of service of process in any court action between it and City arising out of
or based upon this Agreement. Airline shall immediately notify City, in writing, of the name and
address of said agent. Such service shall be made as provided by the laws of the State of Texas
for service upon a non-resident engaging in business in the State. It is further expressly agreed,
covenanted and stipulated that, if for any reason, such service of process is not possible, as an
alternative method of service of process;Airline may be personally served out of the State of Texas
by the registered mailing of such service at the address set forth in Section 1.1.
IN WITNESS WHEREOF,the Parties hereto have caused these presents to be executed on
the day and year first above written.
CITY OF FORT WORTH: FW`
as f,,r v, 40ixGALITY:
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Name: �r At I ... -
Title- s area !ll......___...F ,�
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STATE OF TEXAS § Nfar�J. KJOWtif� Semtfty'�
§ -
COUNTY OF7rKfA\)T §
BEFORE ME, the undersigned authority, a Notary Public in and for the %fe 6f'Texas, on
this day personally appeared f g)(V\0xJ,0 Cp$ nown to me to be the person whose name is
LU
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the i I—
City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the
purposes and consideration therein expressed and in the capacity therein stated.
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Execution Copy
AIR TRANSPORT INTERNATIONAL,INC.
By: (V4
Name: ME
Title: � SL S+��rJ
PRY P(�""
Za ` Z- Cathy Williams,Notary PublicSTATE OF Y t� `�'Z€ _ In and far the State of Ohio
§ _ _ My Commission Expires May 6,2Q23
OIOXi d,
coUNTY §
e�5mRE ME,the undersigned authority, a Notary Public in and for the State of
on this day personally appeared—v ,e� e�C° wn to me to be
the person whose name is subscribed to the foregoing i strument, and ac wlendoged to me that
the same was the act of Air Transport International, Inc. and that she/he executed the same as the
act of Air Transport International, Inc. for the purposes and consideration therein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
2019.
OFFICIAL RECORD
CI` Y SECRETARY
-38- Mr. WORTH,TX
Contract Compliance Manager:
By signing, I acknowledge that I am the person responsible for the monitoring and
administration of this contract,including ensuring all performance and reporting requirements.
/u �a m
Barbar Goodwin
..........4v
Title
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
Execution Copy
Exhibit A
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Exhibit B
Addendums t0 Operating Agreements
25 February 2019
For this addendum, the term "Operator" means a "Commercial
Operator", as described in the City of Fort Worth Aviation Minimum
Standards.
A.1 High power Engine Runs
The varied range of aircraft operating at Fort Worth Alliance Airport
(AFW) include many powered by high-airflow turbojet and turbofan
engines. Maintenance necessary for the propulsion systems on these
aircraft require that the engines be run at power-lever-angle (PLA)
settings simulating the installed operational flight profile. This high-
power run up stresses the engine and it must pass this test to be cleared
for flight.
The high-power engine runs take a considerable length of time, and the
high-velocity, high temperature (-1500 °F), expansive noise contours
(dBA>100) characteristic of these run ups prohibit conducting them on
the operator's ramp, or elsewhere on the airfield without special
provisions. Alliance Aviation Services (AAS) can accommodate this
testing by utilizing the blast walls located on the north ramp adjacent to
the GDC hangar as shown in Figure 1.
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1
To utilize this facility the aircraft must be taxied or towed into position
and secured by the operator. Operator personnel or their qualified
subcontractors will be required to initiate and monitor the engine runs.
Also, to mitigate the overall risk of this test all persons authorized to
supervise or directly participate in engine ground running from the flight
deck who are not pilots or flight engineers must have received both
initial and recurrent qualification for engine ground running duties.
A.2 Airport Boundary Security
US Code 14 CFR 139.335, "Public Protection", and the City of Fort Worth
Ord. 16931, § 1, adopted May 9, 2006, as amended "Fort Worth Alliance
Airport Access" both require that the airport be secure from entry by
non-authorized personnel, wildlife, or vehicles. As documented in the
Airport Certification Manuel (ACM), the principle means of achieving this
requirement is joint participation by all operators on the airport to
develop or revise the security section of the ACM plan. Key elements of
the plan are (1) personnel access control, and (2) perimeter control - a
physical barrier (fence) around the airport boundary and associated
technology.
A2.1 Personnel! Security
Authorization for access to an operator's facilities is the responsibility of
that operator. Identification of personnel assigned to work on the
operator's ramp is necessary to maintain control of the movement and
non-movement areas. Self badging of all personnel is strongly
encouraged Training in the requirements of Part 139.329/303 for all
personnel working on any public ramp is also required. All subcontractor
personnel or other non-cleared personnel will be escorted by approved
operator or AAS personnel at all times. The operator must also inform
and train his personnel to remain on their ramp and to stay clear of
taxiways leading to adjacent operator ramps unless specifically cleared
for this access by the AFW Director of Aviation Operations.
2
A2.2 Perimeter Integrity
Perimeter security poses a significant challenge for the Alliance Airport.
Layers of security that include fences, cameras and patrols are
necessary to meet the challenge of securing this large and complex
airport. Figure 2 illustrates the scope of west-side fencing with
envisioned modifications.
Existing Airport Fencing
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3
The right of access to the airport grounds to conduct flight operations is
granted to each operator by § 3-284 "Access Permit" of the City Code .
However, § 3-283 "Off-Airport Parcel Uses; Access Area; Access
Taxiways; Prohibited Uses." provides that "the [operator's] access area
shall be separated from the remainder of the off-airport parcel by a wall,
fence or other physical barrier. The city or the authority responsible for
operation and safety of the airport [AAS] shall have the right to enter the
access area to inspect or perform other regulatory requirements. All
safety and operational rules and regulations applicable to the airport
shall be applicable to [operator's] access areas. No rules or regulations
of the city shall affect the access right, other than this article and the
regulations."
Accordingly, the perimeter fence and entry gates surrounding the airport
are inspected daily by AAS to ensure they remain intact. However,
fencing and/or gates securing the operator facilities connect to the AAS
fence to form the complete airport barrier. A breach of this part of the
fencing thus constitutes a breach of the overall airport and requires
immediate notification of AAS and corrective action by the operator.
Failure to respond with the necessary actions in a timely manner may
result in revocation of the operator's access permit as stipulated in § 3-
284 and/or shall constitute a misdemeanor and be punishable as
provided in § 1-6 of the City Code. It is thus required that the operator
verify the integrity of his portion of the airport perimeter fence daily.
Physical inspection is the preferred means for doing this, however, a
combination of methods using CCTV cameras, movement sensors,
and/or FAA-approved drone fly-overs are also acceptable.
4
Execution Copy
Exhibit C
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Exhibit D
Exhibit D—Affiliate Operating Agreement
FORT WORTH ALLIANCE AIRPORT
FORM OF AFFILIATE OPERATING AGREEMENT
ARTICLE I- SCOPE OF AGREEMENT
This Agreement between the City of Fort Worth (the "City") and (the
"Affiliate")grants to the Affiliate certain rights to use facilities to conduct its air transportation
business as an Affiliate of[SIGNATORY AIRLINE] (the "Signatory Airline") at Fort Worth
Alliance Airport(the "Airport"). The Cargo Carrier Operating Agreement between the City and
the Signatory Airline, effective as of October 1, 2019 (the "Cargo Agreement"), gives the
Signatory Airline the opportunity to designate an Affiliate if certain conditions are met. The
intent of this Agreement is to adopt by reference various specified provisions of the Cargo
Agreement, and make them applicable to the Affiliate. In consideration of these benefits, the
Affiliate agrees to abide by all of the terms and conditions of this Agreement.
ARTICLE 2 -DEFINITIONS
All capitalized terms used in this Agreement, if not defined within this Agreement, shall
have the meanings specified in Article 1 of the Cargo Agreement.
ARTICLE 3 -TERM OF AGREEMENT
3.01 Effective Date. This Agreement shall take effect as of the date specified in
Section 5.1.1 of the Cargo Agreement as the effective date of the Signatory Airline's designation
of the Affiliate,which designation and effective date shall be provided to the City in the form
attached as Exhibit 1 and made a part hereof.
3.02 Termination Date. This Agreement shall terminate as of the earliest of(a)the
expiration or earlier termination date of the Cargo Agreement; (b) the termination date of this
1
Exhibit D—Affiliate Operating Agreement
Agreement as provided in Article 1 I below; or (c) the effective date of the Signatory Airline's
termination of the Affiliate's status as an Affiliate of the Signatory Airline in accordance with
Section 5.3 of the Cargo Agreement which termination and effective date shall be provided to the
City in the form attached as Exhibit 2 and made a part hereof.
ARTICLE 4 - USE OF THE AIRPORT
For the operation of the Affiliate's Air Transportation Business as an Affiliate of the
Signatory Airline, the Affiliate shall have the same rights as the Signatory Airline under Articles
2 and 3 of the Cargo Agreement and shall be subject to the same exclusions and conditions
applicable to the Signatory Airline thereunder.
ARTICLE 5 -FEES AND CHARGES
The Landing Fees and other fees charges due to the City for the Affiliate's use of the
Airport facilities as an Affiliate of the Signatory Airline shall be calculated and paid in
accordance with Article 4 of the Cargo Agreement. Airline is subject to the same terms as the
Signatory Airline regarding Section 4.5 of the Cargo Agreement. The Security Deposit
requirements of Section 4.6 shall not apply to the Affiliate.
ARTICLE 6—AFFILIATE REPORTING AND PAYMENT OBLIGATIONS
The Affiliate shall comply with and remain subject to Article 5 of the Cargo Agreement,
and to remain, with the Signatory Airline,jointly and severally liable to the City for payment of
all Airline Rents, Fees and Charges and for submission of all activity reports that are due to the
City for the Affiliate's use of any Airport facilities as an Affiliate of the Signatory Airline.
If the Affiliate executes and delivers to the City a cargo carrier agreement in substantially
the same form as the Cargo Agreement, and thus itself becomes a"Signatory Airline,"the
Affiliate shall immediately terminate its status as an Affiliate of the Signatory Airline in writing
2
Exhibit D—Affiliate Operating Agreement
to the City; provided, however, that unless otherwise agreed to in writing by the Signatory
Airline and the City, the Affiliate shall remain responsible to the Signatory Airline and the City
for all payment and other obligations that survive termination of this Agreement.
ARTICLE 7—INDEMNIFICATION AND INSURANCE
7.1 Indemnification Obligations. The Affiliate shall be subject to and bound by the
same obligation to indemnify each Indemnified Party as provided in Section 6.1 of the Cargo
Agreement.
7.2 Insurance Obligations. The Affiliate shall be subject to and bound by the
insurance obligations set forth in Section 6.2 of the Cargo Agreement.
ARTICLE 8—COMPLIANCE WITH LAWS
The Affiliate shall be subject to and bound by Article 7 of the Cargo Agreement.
ARTICLE 9—CIVIL RIGHTS AND AFFIRMATIVE ACTION
The Affiliate shall be subject to and bound by Article 8 of the Cargo Agreement.
ARTICLE 10—NO LEASE
This Agreement does not constitute a lease between the Affiliate and the City with
respect to any premises, facilities, services, equipment, or otherwise at the Airport.
ARTICLE I I—DEFAULT AND TERMINATION
21.01 Default. The occurrence of any event described in Section 9.1 of the Cargo
Agreement involving the Signatory Airline or the Affiliate shall be considered an event of
default by the Affiliate.
21.02 Remedies_ If the Affiliate shall be in default under this Agreement,the City shall
have the right to terminate this Agreement under Section 9.2.1(a) of the Cargo Agreement.
ARTICLE 12 - ENVIRONMENTAL
3
Exhibit D—Affiliate Operating Agreement
12.1 Environmental Compliance. The Affiliate shall be subject to and bound by
Sections 11.1 through 11.6 and Sections 11.8 through 11.11 of the Cargo Agreement.
12.2 Environmental Indemnity. The Affiliate shall be subject to and bound by the
same obligation to indemnify the City as provided in Section 11.7 of the Cargo Agreement.
ARTICLE 13—ASSIGNMENT
Airline shall not, directly or indirectly, assign, sell, hypothecate or otherwise transfer this
Agreement.
ARTICLE 14 -MISCELLANEOUS PROVISIONS
The Affiliate shall be subject to and bound by the provisions of Article 13 of the Cargo
Agreement.
ARTICLE 15 -NOTICES
Except as specifically provided elsewhere in this Agreement, any notice given under this
Agreement shall be in writing and shall be delivered personally or sent by certified or registered
mail, postage prepaid:
To City:
To Affiliate:
or to such other respective addresses as the parties may designate to each other in writing from
time to time. Notice by certified or registered mail shall be deemed given three (3)days after the
date that such notice is deposited in a United States Post Office.
[The remainder of this page is intentionally left blank.]
4
Exhibit D--Affiliate Operating Agreement
IN WITNESS WHEREOF,the parties intending to be legally bound have executed this
Agreement this day of 20_.
CITY OF FORT WORTH [AFFILIATE]
By:
Name: By:
Title: Name:
Title:
5
Exhibit A to Affiliate Operating Agreement
DESIGNATION OF AFFILIATE
[AIRLINE] (the"Airline"), a Signatory Airline under the Cargo Agreement(the "Cargo
Agreement")with the City of Fort Worth (the "City"), effective as of , hereby
designates [AFFILIATE] (the"Affiliate") as its Affiliate at Fort Worth Alliance Airport(the
"Airport") in accordance with and subject to Article 5 of the Cargo Agreement.
l. This designation is effective as of 20 .
2. (a) Airline hereby represents to the City that the Affiliate [check at least one]:
❑ a parent or subsidiary of Airline or under the same parental control as Airline, or
❑ otherwise operates under essentially the same trade name as Airline at the Airport
and uses essentially the same livery as Airline, or
❑ operates cargo feeder flights at the Airport under the direction and control of
Airline.
3. The Affiliate has executed and delivered to the City an Affiliate Operating Agreement as
required by Section 5.1.1 of the Cargo Agreement.
4. The Airline hereby confirms and agrees that the Airline will pay to the City all Airline
Rents, Fees and Charges and other charges due to the City for the Affiliate's use of the Airport
facilities as an Affiliate of the Airline, and will submit to the City the activity reports required by
Section 4.4 of the Cargo Agreement and due to the City for the Affiliate's use of the Airport
facilities as an Affiliate of the Airline.
5. The Airline confirms and agrees that it shall remain, with the Affiliate,jointly and
severally liable to the City for the payment of all Landing Fees and other fees charges and the
submission of all activity reports due to the City for the Affiliate's use of any Airport facilities as
an Affiliate of the Airline.
[AIRLINE]
By: , Airline's authorized representative
Name
Title:
Date:
6
Exhibit D—Affiliate Operating Agreement
Exhibit B to Affiliate Operating_Agreement
NOTICE OF TERMINATION OF AFFILIATE STATUS
[AIRLINE] (the"Airline"), a Signatory Airline under the Cargo Agreement(the "Cargo
Agreement")with the City of Fort Worth (the "City"), effective as of , hereby
notifies the City that the Airline is terminating its designation of[AFFILIATE] (the "Affiliate")
as its Affiliate at Fort Worth Alliance Airport in accordance with and subject to Section 5.3 of
the Cargo Agreement.
This termination of the Affiliate's status as an Affiliate of the Airline is effective as of
[DATE,NOT LESS THAN 30 DAYS FROM THE DATE OF THIS NOTICE].
[AIRLINE]
By: , Airline's authorized representative
Name
Title:
Date:
7