HomeMy WebLinkAboutContract 53939 CITY SECRETARY
cowmar No.
MAC�� 202
CARGO CARRIER OPERATING AGREEMENT
FOR
FORT WORTH ALLIANCE AIRPORT
by and between
City of Forth Worth
and
Sun Country,Inc.
OFFICIAL RECORDk
CITY SECRETARY
FT- WORTH,TX
(A0211900_[
Table of Contents
ARTICLE I DEFINITIONS AND EXHIBITS.............................................................................6
1.1 Basic Data..............................................................................................................6
L2 Additional Definitions. ..........................................................................................7
ARTICLE 2 USE OF THE AIRPORT AND RELATED FACILITIES.......................................8
2.1 Airline Rights and Privileges................................................................................. 8
2.2 Exclusions and Reservations..................................................................................9
ARTICLE 3 OPERATION AND MAINTENANCE OF THE AIRPORT................................. 10
3.1 City Obligations................................................................................................... 10
ARTICLE 4 FEES AND CHARGES.................................. .. 10
4.1 Landing Fees........................................................................................................ 10
4.2 Special Charges.................................................................................................... 11
4.3 Use Contingent Upon Payment............................................................................ 11
4.4 Payment................................................................................................................ 11
4.5 Schedules and Audit............................................................................................ 12
4.6 Security Deposit................
ARTICLE 5 AFFILIATES.......................................................................................................... 13
5.1 Airline's Designation of Affiliates....................................................................... 13
5.2 Applicability of Agreement to Affiliates. ............................................................ 13
5.3 Termination of Status of Affiliate........................................................................ 13
ARTICLE 6 INDEMNIFICATION AND INSURANCE........................................................... 14
6.1 Indemnification.................................................................................................... 14
6.2 Insurance.............................................................................................................. 15
6.3 Forms of Insurance Coverage.............................................................................. 16
ARTICLE 7 COMPLIANCE WITH LAWS............................................................................... 17
7.1 General Laws. ........................................................................ .......................... 17
7.2 Airport Rules and Regulations............................................................................. 17
7.3 Licenses, Certificates and Authorizations............................................................ 17
7.4 Wage Hour Laws. ................................................................................................ 17
ARTICLE 8 CIVIL RIGHTS AND AFFIRMATIVE ACTION................................................. 17
8.1 General Civil Rights Provisions........................................................................... 17
8.2 Compliance with Nondiscrimination Requirements............................................ 17
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TABLE OF CONTENTS
(continued)
Page
8.3 Title VI Clauses for Transfer of Real Property Acquired or Improved
Under the Airport Improvement Program............................................................ 18
8.4 Clauses for Construction/Use/Access to Real Property Acquired Under the
Activity, Facility or Program............................................................................... 19
8.5 Title VI List of Pertinent Nondiscrimination Acts and Authorities..................... 19
8.6 Subordination to Agreements with the United States..........................................20
8.7 No Exclusive Rights. ...........................................................................................21
8.8 Right to Develop Airport. ....................................................................................21
8.9 Right of Flight......................................................................................................21
8.10 14 C.F.R Part 77, Obstructions in Navigable Airspace. ......................................21
8.11 No Obstructions. ..................................................................................................21
8.12 War or National Emergency. ...............................................................................21
8.13 No Interference with Airport Operations.............................................................21
8.14 SEC Rule 15c2-12................................................................................................22
8.15 Americans with Disabilities Act("ADA"). .........................................................22
ARTICLE 9 AIRLINE DEFAULT AND TERMINATION BY CITY......................................22
9.1 Airline Default. ....................................................................................................22
9.2 City's Remedies...................................................................................................23
9.3 Termination..........................................................................................................24
9.4 The City's .Right to Perform. ...............................................................................24
9.5 Airline's Rights Related to Termination..............................................................24
9.6 Bankruptcy...........................................................................................................24
ARTICLE 10 AIRPORT DEFAULT AND TERMINATION BY AIRLINE ............................25
10.1 Events of Default. ................................................................................................25
10.2 Airline's Remedy.................................................................................................25
ARTICLE 11 ENVIRONMENTAL............................................................................................25
11.2 Airline Representations, Warranties, And Covenants. ........................................27
11.3 Information to be Provided to the City. ...............................................................29
11.4 Response and Compliance Actions......................................................................29
11.5 Correction of Environmental Non-compliance....................................................31
11.6 Corrective Action Process....................................................................................31
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TABLE OF CONTENTS
(continued)
Page
11.7 Environmental Indemnification and Reimbursement..........................................32
11.8 Limitations...........................................................................................................33
11.9 Waiver..................................................................................................................33
11.10 Survival of Environmental Provisions.................................................................33
11.11 Resource Conservation and Recycling. ...............................................................33
ARTICLE 12 ASSIGNMENT.....................................................................................................34
ARTICLE 13 MISCELLANEOUS PROVISIONS....................................................................34
13.1 Nature of Agreement............................................................................................34
13.2 Governing Law and Venue.................................................................................. 34
13.3 Entire Understanding. ..........................................................................................34
13.4 Amendments. ..............................................................................................
13.5 Cumulative Rights. .............................................................................................. 34
13.6 Construction to Save Agreement. ........................................................................35
13.7 No Waiver............................................................................................................35
13.8 Relationship of Parties.........................................................................................35
13.9 No Third-Party Beneficiaries...............................................................................35
13.10 Successors and Assigns........................................................................................35
13.11 Labor Disputes.....................................................................................................35
13.12 Force Majeure......................................................................................................35
13.13 No Personal Liability...........................................................................................36
13.14 Acceptance of Payments..............................................................................
13.15 Attorneys' Fees....................................................................................................36
13.16 Taxes....................................................................................................................36
13.17 Memorandum of Lease. .......................................................................................37
13.1.8 Approval or Consent............................................................................................37
13.19 Time of the Essence.............................................................................................37
13.20 Notices. ................................................................................................................37
13.21 Counterparts.........................................................................................................37
13.22 Capacity to Execute. ............................................................................................37
13.23 Incorporation of Exhibits.....................................................................................37
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TABLE OF CONTENTS
(continued)
Page
13.24 Titles. ...................................................................................................................38
13.25 Other Agreements................................................................................................38
13.26 Agent for Service.................................................................................................38
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LIST OF EXHIBITS
Exhibit Title
A Affiliate Operating Agreement
B Map of the Airport
C Addendums to Operating Agreement
D Form of Monthly Landing Report
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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 Sun Country, Inc., a corporation organized and existing under the laws of the
State of Minnesota 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 copy to:
City Attorney's Office
200 Texas Street,
Fort Worth, Texas 76102
City's Post Office and Payment Address: 4201 N. Main Street, Suite 200
Fort Worth, Texas 76 1 06-273 6
Airport Operator: Alliance Air Services
Airport Operator's Overnight Delivery 2221 Alliance Blvd., Suite 100
and Street Address: Fort Worth, Texas 76177
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Airport Operator's Post Office 2221 Alliance BIvd., Suite 100
and Payment Address: Fort Worth, Texas 76177
Airline: Sun Country, Inc.
Airline's Overnight Delivery and Street Address. 2005 Cargo Rd
Minneapolis, MN 55450
ATTN: General Counsel
With copy to:
Senior. Director Airport Affairs
Agreement: This Cargo Operating Agreement as the same may be amended or supplemented
from time to time pursuant to the terms hereof.
Effective Date: May 1, 2020
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.
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,
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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 listed 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 Iimitation 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.
CIaims means any and all liability, damages, losses, expenses, claims, judgments, demands,
penalties or fines, including without limitation reasonable attorneys' fees and court costs.
DNS 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.
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.
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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 limited 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 AirIine'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 u-se 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 Iocations 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.
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 located 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
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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.
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.
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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;
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 1 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: 488020289876
ABA Routing (WIRE): 026009593
ABA Routing(ACH): 111000025
Bank Name: Bank of America
Branch Address: Dallas, Texas 75202
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Remittance Email: Sherri.SimpsongHillwood.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 10% interest rate or the current Wall Street Journal Prime Rate plus one percent
(1%).
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 AirIine's operations at the Airport for a period of three (3) years after the close of each Fiscal
Year throughout the Tenn. 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 Fifty
Nine Thousand Five Hundred Ten Dollars and Forty-five Cents ($59,510.45). 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 long-
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.
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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 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 following
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 AFFMIATES
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(e) 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 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.
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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 legally 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 a 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 A 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.
6.1.5 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 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 Iimited 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;
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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
coverages 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 employer's 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.
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 Iimits,
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.
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(c) A worker's compensation policy affording statutory coverage and
containing statutory Iimits and employer's liability insurance at Iimits of $500,000 per
accident/$500,000 each employee/$5 00,000 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.
"The City of Fort Worth,Texas and Alliance Air Services, Inc. and their respective elected
officials,boards, officers, employees, agents and representatives."
6.3A 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.
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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 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.
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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 Ieases 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 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 com-
plies; 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 Air-
port Improvement Program.
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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 Iand 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.
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 limited to:
(a) Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78
scat. 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);
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(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 § 47I, Section
47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex);
(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);
- 0) 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 74I 00);
(1) TitIe 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.
9.11 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 land 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 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
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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 local 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.
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.
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9.1.4 A petition under any chapter of the Federal Bankruptcy Code or an action under
any federal or state insolvency Iaw 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.
9.1.9 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.LI0 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.
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.
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(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 local 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.
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
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limitation performing any required remediation relating to any environmental matter pursuant to Airline's
obligations under Article 11 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 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 II ENVIRONMENTAL
11.1 For purposes of this Agreement, the following definitions shall apply to environmental
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,
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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 CIaim"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 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.
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"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 obtain and
maintain all applicable licenses, permits, registrations and other authorizations and approvals required
under Environmental Laws and shall provide any notices required under Environmental Laws for con-
ducting its operations at the Airport during the term of this Agreement. Airline shall require Airline Enti-
ties to obtain and maintain all applicable licenses,permits,registrations and other authorizations required
by Environmental Laws in order to conduct their operations and activities at the Airport.
11.2.2 Airline shall comply and shall require Airline Entities to comply, with all appli-
cable 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 Regula-
tions;
(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 Entities;
(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 ground-
water 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 Material, 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 contam-
inate the environment,or that does or may adversely affect the health,welfare,or safety of persons whether
located within the Airport. Without limiting the foregoing, Airline shall not conduct or allow any Airline
Entities to conduct any operations or activities involving the use or application of ethylene glycol,propyl-
ene glycol, or any other substance in de-icing or anti-icing at any location at the Airport except in accord-
ance with all applicable Environmental Laws and Airport Rules and Regulations.
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11.2.5 Airline shall be responsible for the proper removal and disposal of all Hazardous
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 pro-
jects may require review or approval by the FAA, the Environmental Protection Agency ("EPA"), or the
Texas Commission on Environmental Quality ("TCEQ") or their successor agencies,pursuant to require-
ments 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 Greenhouse Gas emissions. If requested by the
City, Airline shall reasonably assist the City in preparing 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 Hazardous
Materials, Solid Waste, or Process Water at the Airport that is above any applicable reportable quantity
set forth in any applicable Environmental Law, Airline shall report such Release or Discharge to the ap-
propriate governmental authorities in compliance with applicable Environmental Law. Airline shall re-
quire 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 National and
Texas Pollution Discharge Elimination System permits("NPDES"and "TPDES"), state and federal storm
water regulations, and federal effluent limitation guidelines, including, without limitation, EPA Adminis-
tered Permit Programs, 40 C.F.R. § 122 (2009), as amended from time to time, for operations at the Air-
port. 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 appli-
cable NPDES or TPDES storm water permits and effluent limitation guidelines under Environmental
Laws. Airline shall minimize the exposure 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 implemen-
tation 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
limitation guidelines applicable to the Airport or Airline are incorporated by reference into this Agreement
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.
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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 wildlife attrac-
tion, including, but not limited to, architectural features, landscaping, waste disposal sites, agricultural or
aquacultural activities,without appropriate coverings or other mitigation measures.
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 AirIine'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 Release 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 Environ-
mental Impact Claim or alleging that Airline or an Airline Entity, or may be, in violation 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 later 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 copies of
its submittals of any non-privileged reports or notices required under Environmental Laws to any govern-
mental 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 operations
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 governmental 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 elec-
tronic documentation, studies, or other documentation regarding environmental conditions or relating to
the presence,use, storage, disposal, or treatment of any Hazardous 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 Hazard-
ous 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 Envi-
ronmental 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, Dis-
charge, or spill;
(b) report such Release, Discharge, or spill to appropriate governmental
agencies in accordance with applicable Environmental Laws, including but not limited to 30 Tx. Ad-
min. 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 Environmental
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 remediate 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 reasonably
determined by the City, Airline or an Airline Entity is the sole cause of a Release, Discharge 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, re-
porting, 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 determination. Nothing in this Agreement shall prevent Airline
from seeking to recover its costs from potentially 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 contamina-
tion,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 required 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 1 I.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) prescribed by appli-
cable 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 City must first provide rea-
sonable advance written notice to Airline of such obligations, except in emergency circumstances in
which such advance notice is not possible), then the City, in addition to its rights and remedies de-
scribed elsewhere in this Agreement, may, at its election, upon reasonable written notice, enter the
affected area, and take whatever action the City reasonably deems necessary to protect the public
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health and safety and the environment, or to enable the City to meet its obligations under Environ-
mentaI Laws, within the time required under such Environmental Laws, at Airline's expense, alt-
hough 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 1f 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 authority regarding such al-
leged non-compliance) or Airport Rules and Regulations, or result in contamination 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 compliance 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 prevail 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 determination
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 contamina-
tion, 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 Iimited 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.
11.6 Corrective Action Process.
11.6.t 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 applicable Environmental Laws. Airline shall, at Air-
line's own cost and expense, have all tests performed, 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
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the City. This obligation includes 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 un-
derlying 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 Indetnnitees"), from and
against any and all claims, demands,penalties,fines, suits, actions,administrative proceedings (including
formal and informal enforcement), 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, 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
(e) documented loss by any Environmental Indemnitee(s) from any Envi-
ronmental Impact Claim, to the extent caused by the operations, activities, action or inaction of Air-
line or Airline Entities, at the Airport during the term of this Agreement.
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 consult-
ants' fees, contractors' fees,reasonable attorneys' fees and expenses, 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 permitted
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, remedia-
tion, or other required plan or response action) to the extent resulting 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
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resulting from the operations, activities, actions 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 AirIine's initial occupancy or
operations at such arca(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 con-
tributed 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
1.1.8.3 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 negligence
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 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 future 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 Iaw, 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.
1 I.I 1 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
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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 Linder 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 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 the 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 Iegal right that
the party may have in the event of any default by the other.
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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.
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
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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 Iiable 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.
t3.14 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.
13.15.1 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 Iiable,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 of ten(10) days' written notice of the amounts payable by Airline.
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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.
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 Iisted 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 Laving 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.
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All exhibits and attachments referred to in this Agreement are intended to be and are hereby
specifically made a part of this Agreement.
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.
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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:
By: APPROVED A5 TO FORM AND LEGALITY:
Name: Fernando Costa
Title:Assistant City Manager
Ass15 art City Attrwrcy
,STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and.for the State of
on this day personally appeared der known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of the City of Fort Worth and that she/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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 1 day of ,
2020.
` tEri SELENA ALA ,-
Notary Public.State of Texas
Comm.Expires 03 31-2024
Ebs'�``;� Noiary ID 132422528
""`"� Notary Public in and for the State of Texas
Ath
Y• ►: r
Mary Je Ka,s Cit See r R �
lklv,t _
®FFICUA RECONo
CITY SECRETAR1P
FT VV®RTH� TX
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SUN COUNTRY, INC.
By:
Narne:
Title:.
STATE OF_ l §
COUNTY OF W— §
BEFORE ME,the undersigned authority, a Notary Public in and for the State of
on this day personally appeared__`lG ltxt known to me to be the
person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of Sun Country, Inc. and that she tlexecuted the same as the act of Sun Country, Inc. for
the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAT OF OFFICE this � day of
2020.
VIcTORIARENEPALPANT
" NOTARY PUBLIC
�r MINNESOTA
x MY cOMMiSSION EXPIRES
3ANUARY 31,2023
OFF MAL RECORD
i HY SECRETARY
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible for the monitoring and administration
t is co t, ring all performance and reporting requirements.
B
Barba oodwin
Title: Real Property Manager
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Exhibit A—
ALP-Airport Map
(Remainder of the page left blank)
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Exhibit B—
Addendums to Operating Agreements
(Remainder of the page left blank)
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Addendums to 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.lHigh 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 mustpass this test
to be cleared for flight.
The high-power engine runs take a considerable length of time, and the high-velocity,high temperature
(-1 SOO -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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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
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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.
Airport Boundary Security
US Code 14CFR 139.335,"Public Protection",andtheCity 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 achievingthis 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.
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.
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+ 1
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Figure 2.West-Side Airport Fencing
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.
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Exhibit C—
Monthly Landing Report
(Remainder of the page left blank)
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-49-
Exhibit D—
Airline's Designation of Affiliates
THIS EXHIBIT IS NOT APPLICABLE
(Remainder of the page left blank)
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