HomeMy WebLinkAboutResolution - 2001-R0223 - Airlines Operating Agreement - Atlantic Southeast Airlines, Inc. - 06/14/2001Resolution No. 2001-RO223
June 14, 2001
Item No. 49
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, for Certificated Passenger
Airline Operating Agreement and Terminal Building Lease, by and between the City of
Lubbock and Atlantic Southeast Airlines, Inc., and related documents. Said Lease
Agreement is attached hereto and incorporated in this resolution as if fully set forth herein
and shall be included in the minutes of the City Council.
Passed by the City Council this 14th day of June , 2001.
W41 D�PYS I T T ..0;.
ATTEST:
Rebecca Garza
City Secretary
APPROVED AS TO CONTENT:
4. zoo
Mark N. Earle
of Aviation
APPROVED AS TO FORM:
V
William de Haas
Contract Manager/Attorney
Dh/Ccdoes/Atlantic SoutheastAirl ines.res
June 5, 2001
Resolution No.
June 14, 2001
Item No. 49
CERTIFICATED PASSENGER AIRLINE OPERATING
AGREEMENT AND TERMINAL BUILDING LEASE
Lubbock International Airport
Lubbock, Texas
2001-RO223
THIS LEASE AGREEMENT, made this 14th day of June , 2001, by
and between the City of Lubbock, Texas, (hereinafter referred to as "City"), and Atlantic
Southeast Airlines, Inc., a corporation incorporated under the laws of the State of Georgia, with
its principal office at 100 Hartsfield Centre Parkway, Suite 800, Atlanta, Georgia 30354 (as
hereinafter defined and referred to as "Airline").
WITNESSETH
WHEREAS, City owns and operates Lubbock International Airport, located in Lubbock,
Lubbock County, Texas, (hereinafter referred to as "Airport"); and
WHEREAS, Airline is engaged in the business of air transportation of persons, property,
cargo, small packages, and mail, and is certificated by the Federal Aviation Administration to
provide such services through Lubbock International Airport; and
WHEREAS, Airline desires to lease certain premises, use certain facilities, and acquire
certain rights and privileges from City in connection with its use of the airport, and City is
willing to lease and grant the same to Airline upon the terms and conditions hereinafter stated;
and
WHEREAS, City has the power and authority to enter into this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants hereof, City
hereby leases to Airline and Airline hereby hires and takes from City certain exclusive premises
(hereinafter called "Exclusive Use Space"), and certain non-exclusive premises (hereinafter
called "Joint Use Space"), along with facilities, rights and privileges in connection with and on
the Airport, as hereinafter described, upon the terms and conditions that follow:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The following words and phrases, wherever used in this Agreement,
shall, for the purpose of this Agreement, have the following meanings:
Affiliate(s): means any entity controlling, controlled by, or under common control of Airline at
the Airport.
Agreement and Certificated Passenger Airline Operating Agreement and Terminal
Building Lease: shall be interchangeable terms and both terms shall mean this Airline
Operating Agreement and Terminal Building Lease.
Air Transportation System: means customary airline operations.
Aircraft Arrival: means any airline aircraft landing at the Airport.
Airfield: means the runways, taxiways, approach and clear zones, safety areas, in -field areas,
landing and navigational aids, and other facilities and land areas at the Airport required by or
related to aircraft operations (landings, departures, and taxiing).
Airline: means the entity that has executed this Agreement and that is identified in the first
paragraph of the Agreement. However, for purposes of the enjoyment of the rights conferred on
Airline hereunder, including the right to use the premises herein leased to Airline, it is agreed
that any Affiliate (as herein defined) of Airline that brings in equipment and/or personnel and
operates from Airline's space at the Airport pursuant to an arrangement with Airline shall have
the rights afforded Airline hereunder without payment of any additional charges or premiums;
provided, however, that such Affiliate shall enter into an operating agreement with the City
providing for indemnification, insurance and other provisions as may then be required by the
City (and it is agreed that during the term of this Agreement, for so long as such party is an
Affiliate of Airline, such Affiliate shall be entitled to signatory rates and charges hereunder).
Airline's Premise: means area leased by Airline.
Airport: means Lubbock International Airport, Lubbock, Texas, including but not limited to
those areas shown on Exhibits "A" and `B" attached hereto and incorporated herein as though
set forth in full.
Airport System: means the Lubbock International Airport operations.
Assigned Aircraft Parking Positions: means aircraft parking positions at the airport that has
been assigned by the Director of Aviation.
Assigned Gates: means gates within the concourse area of the Terminal Building that have been
assigned by the Director of Aviation to each Signatory Airline.
Assign or Sublet: to transfer in whole or in part any of the lease premises defined in this
Agreement to another company.
Breach: the breaking or violating of a law, right, obligation, or failing to carry out the term,
promises or conditions of the Agreement.
Budget Year: refers to City's fiscal year and means the twelve-month period commencing on
October 1 and extending to September 30 of the following year.
CPI: Consumer Price Index for All Urban Consumers (CPI -U) that is published by the Bureau
of Labor Statistics out of Dallas, Texas for the preceding twelve month period.
City: means the City of Lubbock, a municipal corporation organized and existing under the laws
of the State of Texas.
City's Department of Aviation: means the Airport Department of the City of Lubbock.
Default: means the omission or failure to perform a legal or contractual duty or obligation.
Departure: means any airline aircraft leaving the Airport.
Deplaned Passengers: means all terminating passengers and on-line or off-line transfer
passengers deplaned at the Airport, but excluding through passengersand non -revenue
passengers.
Director of Aviation: means the City's Director of Aviation or such other person designated by
City to exercise functions with respect to the rights and obligations of City under this Agreement.
Enplanements or Enplaned Passengers: means any person that initially boards an airplane at
the Airport or any person that leaves an airplane and reboards an airplane at the Airport, but
excluding non -revenue.
Environmental Laws: shall be interpreted to include any and all federal, state, local statues,
ordinances, regulations, rules or guidelines now or hereafter in effect, as the same may be
amended from time to time, which govern Hazardous substances or relate to the protection of
human health, safety or the environment, and include but are not limited to: the Solid Waste
Disposal Act, 42 U.S.C. 3251, et sea.; the Federal Insecticide, Fumicide, and Rodenticide
Act/Pesticide Act, 7 U.S.C. Section 13 et sea.; the Safe Drinking Water Act, 44 U.S.C. Section
300(f) et seq.; the Oil Pollution Control Act of 1990, 33 U.S.C. Section 2761 et sea.;
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C., Section 9601 et sea., and as amended by the Superfund Amendments and
Reauthorization Act of 1986, Pub.Law No. 99-499, 100 Stat. 1613; the Toxic Substances Control
Act, 15 U.S.C., Section 2601 et sea., the Clean Air Act, 42 U.S.C. 7401 et se .; the Clean Water
Loading Bridge: means a moveable enclosed bridge that is attached to the terminal building
that allows passengers to walk directly onto the aircraft.
Lubbock International Airport Board: composed of seven members appointed by the City
Council. The Board is responsible for recommending to City Council in areas of planning,
development, construction, enlargement, improvements, maintenance, equipment, operation and
policing of airport facilities controlled by City. City of Lubbock Code of Ordinance, Chapter 2,
Article XIV, and as amended from time to time.
Maximum Certificated Gross Landing Weight: means the FAA approved certificated
maximum gross landing weight in thousand -pound units of each aircraft operated by Airline at
the Airport.
Non -Signatory: means airlines, except Affiliate(s) as defined herein, providing scheduled or
unscheduled air transportation of passengers, property, and/or mail by air to and from the
Airport, that have not executed an agreement with City. Without an executed agreement,
companies are subject to paying Non -Signatory Airline Fees as outlined in Section 5.11.B.
Off -Scheduled Operations: Signatory air carrier operations that are delayed as a result of
mechanical malfunctions, crew layovers, or having to ferry an airplane to take the place of
another airplane that failed to make a scheduled flight.
Ordinance: a rule, law, or statute established by the City Council of the City of Lubbock,
Texas.
Participating Airlines: means airlines that cooperate with other airlines in sharing one gate.
Passenger Facility Charges or PFC: means those charges on Airline's passengers using the
Airport authorized under Section 1113(e) of the Federal Aviation Act of 1958, as amended by
Section 9110 of the Omnibus Budget Reconciliation Act of 1990 (Pub.L. 101-508, 49 U.S.C.
App. 1513) and the rules and regulations promulgated thereunder (14 C.F.R. Part 158, hereafter
the PFC Regulations).
Premises: means the space in the Terminal Building and any other areas leased to or used by
Airline under this Agreement.
Public Use Areas: means areas within the Terminal Building that may be used by all people.
Relamp: the replacement of any bulb in light fixtures not functioning properly.
Remote Aircraft Parking: means parking areas at the airport other than on the Terminal Apron
area.
Rules and Regulations: means reasonable and non-discriminatory rules and regulations as may
be established for the Lubbock International Airport adopted by the Lubbock International
Airport Board, and as may be amended from time to time.
Shared Gates: means gate areas that are used by at least two airlines.
SIDA: Security Identification Area is an area where employees or individuals have to have prior
training, clearance, and security badge prior to entering.
Signatory Airlines: means Airline and all other certificated airlines providing scheduled air
transportation of passengers, property, and/or mail by air to and from the Airport, that have
executed an agreement with City substantially the same as this Agreement covering the use and
occupancy of facilities at the Airport.
Security Access Control: means a department within the Airport Organization that provides
security and control of all security clearances and equipment.
Terminal Apron: means the aircraft parking apron serving the Terminal Building as shown in
Exhibit "A".
Terminal Building: means the passenger terminal building and related facilities at the Airport
including but not limited to associated curbside and landscaped areas.
Total Landed Weight: means the sum of the Maximum Certificated Gross Landing Weight for
all aircraft arrivals of an airline over a stated period of time. Said sum shall be rounded to the
nearest thousand pounds for all landing fees.
Unassigned Gates: means gates within the concourse area of the terminal building that have not
been assigned to a specific airline by the Director of Aviation.
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ARTICLE 2
TERM
Section 2.01. Term.
The Term of this Agreement shall be for six (6) years beginning on MAY 1, 2000, and ending
APRIL 30, 2006 (hereafter the "Term"), and the rentals, fees and charges established in this
Agreement shall apply to said Term regardless of the Executed Date of this Agreement.
Section 2.02. Holding Over.
Holding over by Airline after the expiration of the Agreement without the consent of City shall
not operate to extend or renew this Agreement. Any such holding over shall be construed as a
tenancy from month-to-month, provided, however, that Airline shall enjoy signatory rentals,
rates and charges up to one year after expiration of this Agreement or for such longer period as
may be agreed in writing by the City and Airline. Thereafter, Airline will pay non -signatory
rentals, rates and charges until a new agreement is executed.
ARTICLE 3
RIGHTS AND PRIVILEGES OF AIRLINE
Section 3.01. Use of the Airport.
Airline, its employees, agents, licensees, passengers, guests, patrons, and invitees shall have the
right to the use of the Airport in common with other duly authorized users of the Airport and
appurtenances, together with all facilities, improvements, equipment, and services that have been
or may hereafter be provided for common use at or in connection with the Airport, subject to the
rules and regulations as may be established by the Lubbock International Airport Board and
amended from time to time.
Section 3.02. Rights of Airline at the Airport. Airline shall have the right subject to specific
limitations or requirements contained in this Agreement to use the Airport for the following
purposes:
A. Public Transportation. The operation of a public transportation system by aircraft for
the carriage of persons, property, baggage, cargo, and mail, including all activities
reasonably necessary to support such operation.
B. Use and Operation of Equipment: The landing, taking off, flying over, taxiing,
pushing, towing, fueling, loading, catering, unloading, repairing, maintaining,
conditioning, deicing, servicing, parking, and storing of aircraft or other equipment of or
operated by Airline.
C. Other Operating Systems and Ground Transportation. The sale of tickets,
documentation of shipments, handling of reservations, and the loading and unloading of
persons, property, baggage, cargo, and mail at the Airport by such motor vehicles or other
means of conveyance as Airline may desire to use in the operation of its air transportation
system. However, any ground transportation commercial carrier (including Airline)
regularly transporting persons to and from the Airport shall first secure and thereafter
hold all required permits, licenses, and/or agreements for such operations and shall pay
all reasonable and non-discriminatory rentals, fees, and/or charges for such right as
established by City.
D. Training and Testing. The training at the Airport of persons and testing of aircraft and
other equipment. Flight training and testing shall be undertaken by Airline only to the
extent permitted by, and subject to the conditions of the Rules and Regulations. In all
instances where such training involves aircraft either landing at or taking off from the
Airport, Airline shall be required to pay City landing fees in accordance with Section
5.03.
E. Purchase of Service, Supplies and Materials. The purchase of Airline's requirements
of personal property or services, including aircraft, engines, accessories and parts, fuel,
into -plane fueling services, lubricants, food, beverage, and other passenger supplies, and
any other materials and supplies used by Airline from any person or company of Airline's
choice, and the making of agreements with any person or company of Airline's choice for
services to be performed for Airline that are incidental to the operation of Airline's air
transportation system. However, City reserves the right to levy a reasonable and non-
discriminatory concession fee against contractors and suppliers of in-flight food and
beverage catering to Airline, except those contractors and suppliers that are wholly or
partially owned by Airline, based on such contractor's gross annual sales to Airline for
use or delivery at the Airport. Airline shall require contractor to enter into an operating
agreement or lease with City prior to commencing services to Airline. In the event
Airport is unable to cause such contractor to enter into such operating agreement or lease,
and Airline nonetheless desires to contract with such contractor, Airline shall be
responsible for payment of contractor's reasonable and non-discriminatory fees and
charges owing to City and pay all reasonable and non-discriminatory fees and charges as
they come due, and Airline's insurance (as required in Article 8) shall insure contractor's
activities at the Airport.
F. Use of Equipment, Materials, and Supplies. The sale, lease, transfer, disposal, and
exchange of Airline's aircraft, engines, accessories, fuel, oil, lubricants, other equipment,
and materials or supplies. Such right shall not be construed as authorizing the conduct of
such business by Airline, but as permitting Airline to perform only such functions as are
incidental to the operation of its air transportation system.
G. Servicing, Aircraft and Other Equipment. The servicing by Airline, or by its suppliers
of materials or its furnishers of services, of aircraft and other equipment, operated by
Airline with line maintenance or other materials or supplies, at its assigned aircraft
parking positions or other aircraft parking positions designated by City. City reserves the
right to designate other locations reasonably accessible from the Terminal Building for
performance of aircraft maintenance and service activities if such activities would
interfere with aircraft operations of other airlines from the Terminal Building.
H. Installations and Operations in Airline Premises. The installation of personal
property, including furniture, fixtures, supplies, machinery and equipment in Airline's
Exclusive Use Space as Airline may deem necessary or prudent for the operation of
Airline's air transportation system. The installation and operation of Airline ticket
counter, back wall treatment and identifying signs in Airline's Premises, is subject to the
prior written approval of Director of Aviation, which approval, shall not be unreasonably
withheld, conditioned or delayed.
I. Communication Systems. The installation, maintenance, and operation of such radio,
communication, meteorological, and aerial navigation equipment and facilities and
associated wiring at suitable locations on the Airport, including computer equipment at
passenger check-in counters in the Terminal Building, as may be necessary or convenient
in the opinion of Airline for its operations; provided that such equipment and facilities do
not interfere with other Airport communication, flight information display systems,
meteorological, or aerial navigation systems. The location of such equipment and
facilities in areas other than Airline's Premises shall be subject to the prior written
approval of Director of Aviation which approval shall not be unreasonably withheld,
conditioned or delayed. The installation, maintenance and operation of such systems as
described above shall be without cost or expense to City, and shall be subject to rental
payments by Airline to the City for any additional exclusive space used.
J. Vending Machines. The installation and operation in Airline's Exclusive Use Space in
the Terminal Building of vending machines for the sale of soft drinks, foodstuffs and
candy to its employees, without the obligation to pay any concession fee thereon.
K. Porter Services. The provision of porter services and such other assistance as Airline
may deem necessary for the convenience of airline passengers in checking and
transporting baggage at the Terminal Building.
Section 3.03. Limitations on Use by Airline.
In connection with the exercise of its rights under this Agreement, Airline:
A. Facilities Leased to or Used by Airline's Suppliers. Shall pay appropriate reasonable
and non-discriminatory rentals, fees, and charges for Airline's suppliers, contractors, and
furnishers of services that lease for their exclusive use any portion of Airport or facilities
of City.
B. Use of Facilities. Shall not do or permit to be done anything at or about the Airport that
may interfere with the operation, effectiveness or accessibility of the drainage and
sewage system, electrical system, air conditioning system, fire protection system,
sprinkler system, alarm system, security access system, fire hydrants and hoses, if any,
installed or located on or within Airline's Premises or the Airport.
C. Insurance Requirements Compliance. Shall not do or permit to be done any act that
will invalidate or conflict with any fire or other casualty insurance policies (copies of
which, together with premium schedules, shall be furnished to Airline on request)
covering the Airport or any part thereof.
D. Waste Disposal. Shall not dispose of or permit any other person to dispose of any waste
material taken from or products used (whether liquid or solid) with respect to its aircraft
into the sanitary or storm sewers at the Airport unless such waste material or products are
properly treated by equipment installed for that purpose or otherwise disposed of
pursuant to all federal, state and local laws. In addition to obtaining approval from the
governmental agencies regulating equipment and disposal described in this paragraph,
Airline shall also obtain the approval of City's Department of Aviation. All such
disposal shall comply with regulations of the United States Department of Agriculture
and shall be in compliance with Section 13.02 of this Agreement.
E. Flammable Liquids. Shall not keep or store flammable or combustible liquids within
the enclosed portion of the Airline's Premises unless properly stored in a flammable
materials storage cabinet and shall otherwise comply with the Uniform Fire Code and
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National Fire Protection Association Code with the Life Safety Code adopted by the City,
as amended from time to time.
F. Food/Liquor Sales or Distribution. Airline shall be entitled to provide in-flight
catering for its air passengers, either with its own staff or by contract with others. In-
flight catering companies serving Airline at the Airport shall enter into an operating
agreement or the equivalent thereof with City prior to commencing in-flight catering
services to Airline.
The distribution, serving or sale of food and/or drink (including alcoholic beverages) by
Airline or its in-flight catering company shall be limited to Airline's passengers who are
in the loading bridge or entrance to the loading bridge and in the process of boarding
Airline's aircraft. Such food and/or drink shall be consumed only on board Airline's
aircraft.
Distribution of food and/or drink by Airline in passenger holdrooms shall be allowed
only by advanced written permission of Director of Aviation. Such permission shall not
be unreasonably withheld, but may be conditioned upon requirements that Airline assist
City in paying for extra or unusual custodial costs due to such food and/or drink
distribution. All such food and/or drinks shall be provided by Airline or its inflight
catering company or purchased from retail restaurants operating in the Terminal
Building. In the event such food and/or drink are not available or are not of suitable
quality, Airline will give restaurant the opportunity to bid to procure same.
The provisions of this section notwithstanding, all distribution of alcoholic beverages
shall comply with applicable laws. Except as allowed in Section 3.02(J) of this
Agreement, all other serving, distribution or sale of food or drink by Airline at the
Airport is prohibited.
G. Ground Handling by Others. Airline shall not contract with other companies, including
Signatory Airlines, for Ground Handling Services for Airline's aircraft, without advance
written consent of City, which consent shall not be unreasonably withheld, conditioned or
delayed, and provided that such other company shall have entered into an airline
operating agreement or such other similar contract with City prior to commencing
Ground Handling Services to City. Signatory Airlines shall be the only Airlines entitled
to provide Ground Handling Services.
H. Ground Handling by Airline — Airline Responsibility. Airline may provide Ground
Handling Services to another air transportation company or Affiliate which has in force
an airline operating agreement or other similar contract with the City provided Airline
gives the City advance written notice of such proposed activity including a description of
the type and extent of services to be provided. In the event Airline provides Ground
Handling Services to an aircraft not included within the provisions of an airline operating
agreement, or receives Ground Handling Services in violation of Paragraph G above,
Airline shall be primarily responsible for payment of all reasonable and non-
discriminatory rentals, fees and charges established by City for such aircraft operation at
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the Airport, or of such Ground Handling Services company, and Airline's insurance, as
required in this Agreement, shall provide insurance coverage for such aircraft operations
or Ground Handling Services company. Ground Handling Services provided by Airline
to aircraft not included within a current valid airline operating agreement or without
advance written consent of City, or received by Airline from a Ground Handling Services
company that does not have an airline operating agreement with City or without advance
written consent of City, shall constitute a material breach of this Agreement, and this
paragraph shall not be construed as the elimination or a waiver of City's right to
terminate this Agreement based upon such breach, pursuant to the requirements of Article
12 of this Agreement.
Rights and Privileges Specifically Excluded. Except as specifically provided for in
Section 3.02, nothing herein shall be deemed to give Airline any right or permission to
sell at the Airport any goods or services to the public other than air transportation
services.
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ARTICLE 4
PREMISES
Section 4.01. Terminal Building Space.
For the Term of this Agreement, Airline shall lease or use the areas in the Terminal
Building as shown in Exhibits `B" and "C". A general description of the types of space leased to
Airline and the basis of the use of such space are summarized below.
Joint Use Space
Passenger Boarding Area
Baggage Claim Areas
TOTAL
Exclusive Use Space
Ticket Counter/ATO
Operations Area
Other
TOTAL
All Airlines
28,485 sq. ft.
16,040 sq. ft.
44,525 sq. ft.
AE ASA
1,279
2,416
185
3,880
1,771
3,620
5,391
COEX SWA
1,224 2,134
2,815 6,769
4,039 8,903
In the event that additional space is needed within the Passenger Boarding Area to
accommodate new airlines or expansion of service of existing airlines, the square footage shall
be increased by 4,748 square feet for each gate added unless the proposed use is other than
customary use whereupon the area added will be agreed on or negotiated between the Airline and
the City.
Section 4.02. Gates and Aircraft Parking Positions.
A. Assigned Gates. Gates shall be assigned to Signatory Airlines in accordance with
reasonable and non-discriminatory Department of Aviation policy. Only Signatory
Airlines are eligible for gate assignments. Gate assignments for each Signatory Airline
are identified in Exhibit "D".
Airline will have the sole right to the use of Assigned Gates for scheduled and
unscheduled flights. Use of an Assigned Gate shall include use of any existing podium,
loading bridge and/or associated gate facilities. Airline may install additional gate
facilities at its own cost, subject to the approval of the Department of Aviation which
shall not be unreasonably withheld, conditioned or delayed. Seating in the gate area shall
be available to all users of the Terminal Building regardless of Airline association.
B. Shared Gates. Gates may be assigned to more than one airline subject to the mutual
agreement of all parties. Procedures for the shared use of a gate shall be outlined in a
letter of agreement. Such letter of agreement shall be approved by representatives of all
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participating Airlines and the Director of Aviation, and shall be attached and deemed a
supplement to Exhibit "D" of this Agreement.
C. Unassigned Gates. Unassigned gates are available for use by Signatory and Non -
Signatory Airlines. Use of Unassigned Gates shall be coordinated in advance with the
Department of Aviation. Approval for such use shall not be unreasonably withheld,
conditioned or delayed. Use of unassigned gates shall be subject to the fees and charges
specified in Section 5.
D. Temporary Reassignment of Gates. The Department of Aviation may re -assign gates
on a temporary basis to accommodate emergency or extraordinary situations. Such
temporary reassignment shall be coordinated with Airline as far in advance as
practicable, and shall be accomplished in a manner that has the least possible impact on
Airline's operation.
E. Permanent Reassignment of Gates. The Department of Aviation reserves the right to
permanently reassign gates. Prior to making a decision regarding an involuntary gate
reassigmnent, the Director of Aviation shall consult with the effected Airline or Airlines.
In the event that Airline does not concur with the reassignment, the decision may be
appealed to the Lubbock International Airport Board at its first available regular meeting
following notification of the reassignment by the Director of Aviation. The decision of
the Lubbock International Airport Board will be final and binding on all parties. In the
event of an involuntary gate reassignment, the Department of Aviation or instigating
Airline, shall be responsible for all costs associated with the relocation of the effected
Airline or Airlines to include but not be limited to cost for relocating and reinstallation of
podium, backwall, signage, telecommunication and technology, and associated operations
area.
F. Termination of Gate Assignments. Subject to interruption in service resulting from
events stipulated in Section 7.02, in the event that Airline discontinues use of a gate or
gates for scheduled airline service for more than 30 consecutive days, the Department of
Aviation reserves the right to terminate such assignment(s) and reassign the gate(s) at its
discretion.
G. Aircraft Parking. Airline shall be entitled to park aircraft at its Assigned Gates or its
Shared Gates without prior coordination with the Department of Aviation. Airline shall
be entitled to park aircraft at Unassigned Gates on a first come/first served basis, subject
to the advance coordination requirements outlined in Section 4.02(C) of this Agreement.
Aircraft parking at all other locations on the Airport shall be approved by the Department
of Aviation on a case-by-case basis, and is subject to the Aircraft Parking Fees outlined in
Section 5.07 of this Agreement.
Section 4.03. Employee Parking Facilities. Airline shall, subject to reasonable and non-
discriminatory charges as defined in Section 5.02(G), have the right to use the automobile
parking facilities for its employees. Such facilities are located in an area designated by the
Director of Aviation.
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Section 4.04. Access.
A. Access by Airline. Subject to the provisions of this Agreement, the Rules and
Regulations, and such restrictions as Airline may impose with respect to its Exclusive
Use Space, City hereby grants to Airline, its agents, licensees, suppliers, employees,
contractors, passengers, guests, and invitees, the privilege of ingress and egress to
Airline's Premises and to public areas and public facilities of the Terminal Building.
B. Access on Behalf of Airline. The ingress and egress provided for in Section 4.04(A)
shall not be used, enjoyed, or extended to any person engaging in any activity or
performing any act or furnishing any service for or on behalf of Airline that is not
authorized to engage in or perform under the provisions hereof unless expressly
authorized in writing by City in advance of such activity.
C. Construction and Airport Expansion and Inconvenience. Subject to the requirements
of Section 4.02(E), City shall have the right, at such times as may be reasonable under the
circumstances, to close, relocate, reconstruct, change, alter, or modify Airline's Premises
and/or the means of access to Airline's Premises pursuant to this Agreement or otherwise,
either temporarily or permanently for purposes of maintaining or constructing
improvements, modifications, or expansions to the Terminal Building, including
construction of Capital Improvements; provided, however, that City shall provide: (1)
reasonable notice of the construction activities to Airline and (2) adequate means of
ingress and egress for Airline's Premises or, in lieu thereof, alternate premises with
adequate means of ingress and egress, and reimbursements as provided in Section
4.02(E).
Section 4.05. Surrender of Airline's Premises.
A. Surrender of Airline's Premises. Airline covenants and agrees that on expiration of the
Term of this Agreement, or earlier termination as hereinafter provided, it will peaceably
surrender possession of Airline's Premises leased hereunder in the condition in which
they existed at the commencement of this lease, normal wear and tear excepted.
B. Removal of Trade Fixtures, Equipment and Personal Property. Airline shall have
the right, on expiration or early termination of this Agreement and within thirty (30)
consecutive calendar days thereafter, to remove or dispose of all trade fixtures and
equipment and other personal property placed or installed by it at its expense, in, on, or
about the Airport. Airline shall not be entitled to remove permanent or non -trade fixtures
without the advance written consent of City which consent shall not be unreasonably
withheld, conditioned or delayed.
C. Removal Damages. In the event Airline removes its trade fixtures and equipment and
other personal property described in Section 4.05(B), and/or is allowed to remove its non -
trade fixtures and removes such fixtures, Airline shall repair any damage caused by such
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removal, reasonable wear and tear excepted. Removal and repair shall be at Airline's
expense.
D. Ownership of Trade Fixtures, Equipment and Personal Property Not Removed. In
the event Airline fails to remove its property within thirty (30) consecutive calendar days
of the effective date of termination of this Agreement, or such other period of time agreed
to in writing by the parties, City shall have the option of (1) removing and disposing of
Airline property at Airline's expense; or (2) taking title to Airline property.
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ARTICLE 5
RENTALS, FEES, AND CHARGES
Section 5.01. General.
Airline agrees to pay City during the Term of this Agreement, without deduction or set-off,
certain rentals, fees, and charges as set forth herein.
Section 5.02. Terminal Building Space Rentals, Fees, and Other Charges.
A. Space Rentals in the Terminal Building. Airline shall pay to City the applicable
rentals, fees, and charges for Exclusive Use Space and Joint Use Space in the Terminal
Building as more particularly described herein. (Exhibits `B" and "C").
Exclusive Use Space. Rental for the 5,391 (1,771 Ticket Counter and Airline Ticket
Office, 3,620 Operations Area) square feet of exclusive use space within the Terminal
Building of the Airport, shall be $14.50 per square foot per year for the first year of the
Agreement.
A portion of the rate consists of a fixed amount of $5.63 per square foot per year with the
remaining amount being a variable sum that is affected by the scheduled rate increases
and the Consumer Price Index, hereinafter called "CPI", adjustment.
The variable amount of the rate will be adjusted annually (upon the anniversary date of
this Agreement) by applying an increase/decrease of the CPI adjustment at the beginning
of the second year, a $.50 rate increase plus the increase/decrease of the CPI adjustment
at the beginning of the third year, increase/decrease of the CPI adjustment at the
beginning of the fourth year, a $.50 rate increase plus the increase/decrease of the CPI
adjustment at the beginning of the fifth year, and increase/decrease of the CPI adjustment
at the beginning of the sixth year.
Joint Use Space. The total Joint Use Space rental is 44,525 square feet (Baggage Claim
Area 16,040 and Original Passenger Boarding Area 28,485) within the Terminal Building
of the Airport and shall be assessed at the rate of $14.50 per square foot per year for the
first year of the agreement.
A portion of the rate consists of a fixed amount of $5.63 per square foot per year with the
remaining amount being a variable sum that is affected by the scheduled rate increases
and the CPI adjustment.
The variable amount of the rate will be adjusted annually (upon the anniversary date of
this Agreement) by applying an increase/decrease of the CPI adjustment at the beginning
of the second year, a $.50 rate increase plus the increase/decrease of the CPI adjustment
at the beginning of the third year, increase/decrease of the CPI adjustment at the
beginning of the fourth year, a $.50 rate increase plus the increase/decrease of the CPI
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adjustment at the beginning of the fifth year, and increase/decrease of the CPI adjustment
at the beginning of the sixth year.
The Total Joint Use Space charges shall be prorated among all Signatory Airlines at the
Airport based on the following formula: 20% of the total charges shall be divided
equally among all Signatory Airlines, and the remaining 80% shall be divided among the
signatory airlines based on percentage of enplanements in the preceding month. Airline's
Affiliates' operations shall be counted and recorded jointly with Airline's for purposes of
the Joint Use Formula.
B. Unassigned Gates. Airline may use unassigned gates for weather and medical related
diversions and off -schedule operations on a no cost basis. Airline shall pay a gate use fee
of $80.00 per operation for charter flights utilizing unassigned gates (includes loading
bridge use).
C. Security Access Control. Airline shall pay for the operational costs related to 14 C.F.R.
Part 107. The Airlines shall jointly pay 100% of actual costs associated with the Access
Control Cost Center. Monthly billing will be based on 90% of the Access Control
Center's Annual Budget, divided equally for each month. Airline's Affiliates' operations
shall be counted and recorded jointly with Airline's for purposes of the Joint Use
Formula.
This monthly amount will be paid according to the Airline's proportionate share
according to the following formula: 20% of the total shall be divided equally among all
Signatory Airlines and the remaining 80% shall be divided among the Signatory Airlines
based on percentage of enplanements in the preceding month. Airline's Affiliates'
operations shall be counted and recorded jointly with Airlines' for purposes of the Joint
Use Formula.
At the end of each budget year for the City of Lubbock, actual costs for Security Access
Control will be determined and compared to Airline payments; a reconciliation will be
made for either overpayment or underpayment of such actual costs.
D. Security Screening Fee. Airline shall pay to City, a monthly charge of twenty-five cents
(25¢) for each passenger enplaned by Airline at the Airport.
E. Loading Bridge Charges. Airline shall pay to City a monthly Loading Bridge charge
consisting of a Loading Bridge operating fee of $10.00 per flight (a "flight" consists of
one arrival and one departure).
F. Trash Compactor Fee. Airline shall pay to City a trash compactor fee of $100.00 per
month.
G. Dump Station Fee. Airline shall pay to City a dump station fee of $30.00 per month.
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H. Other Charges. City reserves the right to assess a reasonable and non-discriminatory
monthly charge for ramp electric meter consumption, extraordinary electric, employee
parking lot, Airport security badges, and postal box. No free services or reduced rates
shall be provided by City to Airline or its employees.
Section 5.03. Landing Fees. The fee for the use by Airline and its Affiliate of the landing area
and facilities necessary therefore as granted hereunder, except those for which rentals are
specifically provided else where herein, shall be 70¢ per 1,000 pounds of the approved maximum
certificated gross landing weight of each actual flight landed at the Airport. Effective beginning
the third year of the agreement, the fee for the use of such landing area and facilities shall be 75¢
per 1, 000 pounds of the approved maximum certificated gross landing weight of each actual
flight landed at the Airport. Effective beginning the fifth year of the agreement, the fee for the
use of such landing area and facilities shall be 80¢ per 1,000 pounds of the approved maximum
certificated gross landing weight of each actual flight landed at the Airport.
Section 5.04. Payment Provisions/Penalty on Overdue Amounts. All payments that become
due and payable by Airline under this Agreement shall be made to the City at the office of the
Director of Aviation, Lubbock International Airport, Rt. 3 Box 389, Lubbock, TX 79403.
Airline shall pay the City a flat late payment charge of five percent (5%) of the total amount of
rentals payable if payment of such rentals is not made on or before thirty (30) days after the
invoice date.
Section 5.05. Passenger Facility Charges PFCs). City expressly reserves the right to assess,
collect, modify, terminate and reinstate the collection of PFCs in accordance with 14 C.F.R. Part
158, as may be amended from time to time.
In the event Airline fails to remit PFC revenues to City within the time limits established in the
PFC Regulations, such event shall be an event of default subject to Section 12.02(A) of this
Agreement.
Section 5.06. Other Fees and Charges. City expressly reserves the right to assess and collect
reasonable fees from such concessionaires and operators for in-flight catering, vending, ground
transportation, and other services provided (1) by Airline for another airline (other than Airline's
Affiliates) and (2) for Airline by other concessionaires and operators (other than Airline's
Affiliates).
Section 5.07. Remote Aircraft Parking Fee. City reserves the right to establish a reasonable
and non-discriminatory Aircraft Parking Fee based on cost recovery with an amount for
repair/replacement for Airline's use of remote parking facilities on the Airport.
Section 5.08. Monthly Activity Report.
A. Contents and Date Due. Airline shall furnish to the City on or before the Tenth 10th
dgy of each month, an accurate report of Airline's operations at the Airport during the
preceding month, setting forth all data necessary to calculate the rentals, fees and charges
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due under this Agreement. Said report shall be in a format prescribed by City and shall
include, but not necessarily be limited to: (1) Airline's total number of aircraft arrivals
for the month by type of aircraft, the Maximum Certificated Gross Landing Weight of
each aircraft, the total landed weight for the month; (2) total number of departures for the
month; (3) the total number of enplaned and deplaned passengers, including transfer
passengers; (4) the amount of enplaned and deplaned cargo (mail, freight, and express -
in pounds) for such month. Airline agrees to cooperate with City in establishing
procedures for submission of the reports required in this Section.
B. Failure to Report. If Airline fails to furnish City with the report by the due date
required in Section 5.08(A), Airline will be in breach of Agreement. If report has not
been received within three (3) days of due date, rentals due will be calculated based on
1.5% of previous months report.
C. Inspection and Maintenance of Records. All records, accounts, books and data with
respect to Airline's operations at the Airport maintained by Airline shall be subject to
inspection and audit by City at all reasonable times upon advance written notice. Such
records shall be maintained by Airline for a period of not less than three (3) years beyond
the end of Airline's fiscal year in which such record was created. All such books,
records, accounts and data may be maintained at Airline's corporate headquarters.
Section 5.09. Net Agreement. This is a net agreement with references to rentals, fees, and
charges paid to City. Airline shall pay all taxes of whatever character that may be lawfully
levied, assessed, or charged by any governmental entity upon the property, real and personal,
occupied, used, or owned by Airline, or upon the rights of Airline to occupy and use Airline's
Premises and emolument received hereby, or upon Airline's improvements, fixtures, equipment,
or other property thereon, or upon Airline's rights or operations hereunder provided that the City
promptly forwards, to Airline, any notices for such taxes or assessments received by the City.
Airline shall have the right, at its sole cost and expense, to contest the amount or validity of any
tax or license as may have been or may be levied, assessed, or charged and Airline shall not be
deemed to be in default hereunder for failure to pay any such taxes or assessments pending the
outcome of any proceeding instituted by Airline to contest the validity or the amount of such
taxes or assessments.
Section 5.10. Non -Waiver. The acceptance of fees by City for any period or periods after a
default of any of the terms, covenants and conditions herein contained to be performed, kept and
observed by Airline, shall not be deemed a waiver of any right on the part of City to terminate
this Agreement for failure by Airline to perform, keep or observe any of the terms, covenants or
conditions of this Agreement, and shall not be deemed a waiver of the right of City to terminate
this Agreement pursuant to Article 12 of this Agreement.
Section 5.11. Non -Signatory Airlines.
A. General. Airlines providing non-scheduled service or without an executed agreement at
the Airport may operate as a Non -Signatory Airline. Non -Signatory airlines utilizing the
Terminal Building shall use the services of a Signatory Airline or one of its contract
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service providers for ground handling and terminal services. Non -Signatory Airlines
operating at locations other than the Terminal Building shall utilize a ground handling
company authorized by the Department of Aviation for operations at the Airport.
B. Non -Signatory Airline Fees. For the right to operate at the Airport, Non -Signatory
Airlines shall pay the following fees and charges:
a. Landing Fees: 125% of Signatory Landing Fees.
b. Gate Use Fees: $100.00 per arrival.
c. Security Charge: $50.00 for use of screening station (per departure).
d. Passenzer Facility Charge: Based on program rate.
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ARTICLE 6
OPERATION AND MAINTENANCE OF AIRPORT
Section 6.01. General. City agrees that it will, with reasonable diligence, prudently develop,
improve, and at all times maintain and operate with adequate, efficient and qualified personnel
and keep the Airport in good repair including, without limitation, the Terminal Building,
Loading Bridges, Terminal Apron and Airfield, and all appurtenances, facilities, and services
now or hereafter connected therewith as the same relate to Airline's air transportation system;
will keep the Airport and its aerial approaches free from obstruction and interference for the safe
and proper use thereof by Airline; and will develop, maintain, and operate the Airport in all
respects in a manner at least equal to the standards or rating established by the FAA and any
other governmental agency having jurisdiction thereof, except for conditions beyond the control
of City.
Section 6.02. Terminal Building.
A. City shall operate and maintain and keep in good condition and repair the Terminal
Building, loading bridges and all additions, improvements, facilities, and other equipment
now or hereafter provided by City at or in connection with the Terminal Building and
loading bridges, except any improvements, facilities, and equipment constructed or
installed by Airline. City agrees in the event that an assigned loading bridge becomes
inoperable during the term of this agreement, and City is unable to repair it within a
reasonable amount of time, City will replace such loading bridge at its own cost.
B. City shall at all times maintain the public area of the Terminal Building in a neat, orderly,
sanitary, and presentable condition, and shall keep such area adequately supplied,
equipped (including directional signs), furnished, and decorated.
C. City shall supply or cause to be supplied appropriate and adequate equipment and
maintenance for air conditioning, electrical power, ventilation, heat, water, and sewerage
facilities for Terminal Building public use areas, Airline's Exclusive Use Space and Joint
Use Space; adequate illumination in Joint Use Space; and janitorial service in Terminal
Building public use areas and Joint Use Space.
D. Airline shall at all times keep its Exclusive Use Space and Joint Use Space neat, orderly,
sanitary, and presentable. Airline shall pay for all extraordinary electric power and shall
be responsible for relamping their Exclusive Use Space. Airline shall furnish its own
janitorial service for such Exclusive Use Space and shall cause to be removed at Airline's
own expense from such Exclusive Use Space all waste, garbage, and rubbish, and agrees
not to deposit the same on any part of the Airport, except where designated by City in
connection with collection for removal. Airline shall, at its own expense, transport all
refuse from temporary storage to designated depositories at locations on the Airport as
established by City.
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E. Airline shall maintain the Terminal Apron contiguous to its assigned gates and such other
apron areas used by Airline from time to time in a neat, clean, and orderly condition, free
from litter, debris, refuse, petroleum products, or grease that may result from activities of
its passengers, employees, agents, suppliers or contractors, and remove all oil and grease
spillage, as is reasonably possible, that is attributable to Airline's aircraft or equipment
from its aircraft parking positions.
F. Airline shall perform, at its sole expense, ordinary preventive maintenance and ordinary
upkeep and repair of all facilities, personal property, trade fixtures, and equipment
located in its Exclusive Use Space, excluding structural and roof repairs and including,
but not limited to, fixtures, interior doors and windows, baggage conveyors and belts,
floor coverings, and ticket counters.
Section 6.03. City's Right to Inspect and Make Repairs. City, by its authorized officers,
employees, agents, contractors, subcontractors, and other representatives, shall have the right (at
such times as may be reasonable under the circumstances and with as little interruption of
Airline's operations as is reasonably practicable) to enter upon the Airline's Exclusive Use
Space, accompanied by an authorized Airline representative, if practicable, for the following
purposes:
A. City shall have the right, but not the obligation, to inspect such space to determine
whether Airline has complied and is in compliance with the terms and conditions of this
Agreement. Such inspections shall not constitute an inspection for safety, fire protection
or security purposes. Inspection for safety, fire protection or security purposes shall be
governed by Section 13.08 of this Agreement.
B. Upon thirty (30) consecutive calendar days notice, to perform such maintenance,
cleaning, or repair as City reasonably deems necessary, if Airline fails to perform its
obligations under this Article 6. City shall be entitled to recover the reasonable cost of
such maintenance, cleaning, or repair from Airline, plus a fifteen percent (15%)
administrative charge from Airline on the next rent date.
Section 6.04. Alterations and Improvements.
A. Alterations and Improvements. Airline shall make no alterations, additions,
improvements to, or installations on Airline's Premises under this Agreement without the
prior written approval of Director of Aviation; provided that such approval shall not be
unreasonably withheld, conditioned or delayed.
Plans and specifications for such work shall be filed with and subject to the approval of
the Director of Aviation and all work shall be done in accordance with local ordinances
and state law.
Subject to Sections 4.05(B) and (C), all alterations and improvements to Airline's
Premises inclusive of outbound baggage system and ticket counter shall become part of
the realty and title shall vest with City upon completion of the installation or construction
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of such alterations and/or improvements. Removal of trade fixtures shall be allowed only
pursuant to Sections 4.05(B) and (C).
B. Payment for Alterations and Improvements. Airline shall be solely responsible for
payment for all Leasehold Improvements made by Airline.
Section 6.05. Debts, Liens, Mortgages. Airline shall pay promptly when due, all bills, debts
and obligations incurred by Airline in connection with its operations or activities on the Airport,
and shall not permit the same to become delinquent. Airline shall not permit any mechanics' or
materialmen's or any other lien to be attached to or be foreclosed upon Airline's Premises or
improvements thereto. Airline shall suffer no lien, mortgage, judgement or execution to be filed
and remain undischarged against Airline's Premises or improvements thereon.
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ARTICLE 7
DAMAGE OR DESTRUCTION OF AIRLINE'S PREMISES
Section 7.01. Damage or Destruction. If by reason of any cause including but not limited to
any obligation City may have, other than the negligence or willful misconduct of Airline, the
Airline's Premises or adjacent facilities directly and substantially affecting the use of Airline's
Premises are damaged to such an extent that they are untenantable in whole or in substantial part,
then:
A. If the repairs or rebuilding necessary to restore Airline's Premises to its condition prior to
the occurrence of the damage can, in the reasonable judgement of City, be completed
within ninety (90) consecutive calendar days from the date on which the damage
occurred, City shall so notify Airline, in writing, and shall proceed promptly with such
repairs and rebuilding, and in such event, the rental fees for Airline's Premises, for which
provision is made in Article 5 hereof, shall be abated on a prorated basis for the period
from the date of the occurrence of such damage to the date upon which such repairs and
rebuilding are completed. The prorata abatement of rental fees shall be based only on the
reduction of usable square feet in Airline's Premises due to such damage to Airline's
Premises. The rental fee per square foot established in this Agreement shall remain the
same.
B. If such repairs or rebuilding cannot, in the reasonable judgement of City be completed
within said ninety (90) consecutive calendar days, City, at its option, to be evidenced by
notice in writing to Airline within thirty (30) days of the date of the occurrence, may
either: (1) proceed promptly with said repairs or rebuilding, in which event abatement of
the rental fees shall be allowed, as described in this Article, or (2) terminate the letting of
Airline's Premises, in which event the said rental fees therefore for which provision is
made in Article 5 hereof shall be eliminated from and after the date of the occurrence of
the damage. City shall not be deemed in default under this Agreement in the event it
elects to terminate the letting of the damaged or destroyed Airline's Premises. The 90 -
day repair or rebuilding time shall include the time required for design of repairs or
rebuilding, bidding and award of a construction contract pursuant to City procedures, and
construction of the repairs or rebuilding.
C. In the event repair or rebuilding is required pursuant to subparagraph A, above, or the
City elects to repair or rebuild pursuant to subparagraph B, above, City shall use its best
efforts to provide Airline with alternative space, if necessary, during any repairs,
rebuilding, or reconstruction of the Terminal Building. City shall advise Airline as soon
as may be practicable regarding City's intention with respect to any necessary repairs or
restorations. In the event City provides such alternative space to Airline, Airline's rental
fees shall not increase as a result of increased square footage unless Airlines requests
additional space.
In the event City provides alternative space to Airline, abatement of rental fees shall
consist only of cost directly associated with moving Airline to the temporary space and
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back to restored space, if applicable, and if applicable, the reduction of rental fees based
on a reduction of square feet in any temporary space, in which event, the smaller square
footage would be charged at the same rate per square foot required pursuant to this
Agreement for the space Airline occupied prior to moving under the terms of this
subsection.
Section 7.02. Force Majeure. Except as expressly provided in this Agreement, neither City
nor Airline shall be deemed to be in default hereunder if either party is prevented from
performing any of the obligations, other than payment of rentals, fees and charges hereunder, by
reason of strikes, boycotts, labor disputes, embargoes, shortages of energy or materials, acts of
the public enemy, weather conditions and the results of acts of nature, riots, rebellion, sabotage,
or any other similar circumstances for which it is not responsible or which are not within its
control.
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ARTICLE 8
INSURANCE AND INDEMNIFICATION
Section 8.01. Insurance.
A. General Requirements. Airline shall, at its own cost and expense, procure and maintain
in full force and effect during the Term of this Agreement, such insurance as is required
in this Agreement. Policies of insurance shall be written by companies authorized to
write such insurance in the State of Texas. Airline shall provide to City certificates of
insurance for the insurance coverage required in this Section 8.01 and make available at
Airline's corporate headquarters copies of any or all policies of insurance for the
insurance coverage required in this Section 8.01. Policies of insurance shall be procured
for all insurance required and coverage limits of such policies of insurance shall not be
reduced or replaced in part or in whole by self-insurance, including self-insurance
retention amounts, except as provided in Section 8.01(J).
Airline shall furnish City with certificates of insurance and shall deliver said certificates
to the Director of Aviation, Lubbock International Airport, Rt. 3 Box 389, Lubbock,
Texas 79403. All insurance certificates shall provide that thirty (30) days written notice
be given to the Director of Aviation before a policy is cancelled, materially changed, or
not renewed. Various types of required insurance may be written in one or more policies.
The form of certificates of insurance shall be attached hereto and incorporated herein as
though set forth in full.
B. Approval of Insurance. Even though a "notice to proceed" may have been given,
neither Airline nor any contractors, assignees or other transferees of Airline shall begin
any operations pursuant to this Agreement until the required insurance has been obtained
and proper certificates of insurance delivered to the Director of Aviation. Neither
approval nor failure to disapprove insurance certificates of insurance by City shall relieve
Airline or any transferees of full responsibility to maintain the required insurance in full
force and effect.
C. Commercial General Liability Including Automobile. Airline shall procure and
maintain policies of insurance for commercial general liability insurance of no less than
One Hundred Million Dollars ($100,000,000) for aircraft larger than sixty (60) seats and
no less than Fifty Million Dollars ($50,000,000) for aircraft with sixty (60) seats or less
single limit liability for bodily injury, including death, and property damage in any one
occurrence. Airline shall also procure and maintain policies of insurance for vehicle
liability insurance for all vehicles used in its operation at the Airport in amounts not less
than Five Million Dollars ($5,000,000) single limit liability for bodily injury, including
death, and property damage in any one occurrence. Said policies of insurance shall
include coverage for Airline's Premises (if applicable), operations, and Airline's
contractual liability to City hereunder. Contractual liability coverage shall specifically
insure the Indemnification provision of this Agreement. The insurance policies shall
contain "products" and "completed operations" coverage (if applicable) and shall not be
written on a "claims made" form. The insurance policies shall include coverage for all
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use of, activities on, or operations with respect to Airport premises, coverage for the use
of all owned, non -owned, hired automobiles, vehicles, and other equipment, both on and
off work. City reserves the right to review and modify the limits stated above at one-year
intervals to give effect to the changing risk management environment and inflationary
trends.
D. Workers' Compensation and Employers Liability Insurance as required by Texas
Law. Airline shall obtain and maintain Workers' Compensation and Employers Liability
Insurance coverage. The limit of such Workers' Compensation insurance shall be
governed by State regulation covering all employees whether employed by the Airline or
any subcontractor on the job with at least One Million Dollars ($1,000,000) Employer
Liability Coverage. If Airline elects to be self-insured, Airline shall comply with
Chapter 407 Self Insurance Regulation of the Texas Labor Code. If any portion of the
work is to be sublet, Airline shall require the subtenants similarly to provide such
coverage (or qualify as a self-insured) for all the latter's employees to be engaged in such
work. Airline hereby covenants and agrees that City, its officers, or employees will not
be liable or responsible for any claims or actions occasioned by Airline's failure to
comply with the provisions of this subparagraph and that the Indemnification provision of
this Agreement shall apply to this paragraph. It is expressly agreed that the employees of
Airline are not City employees for any purpose.
E. Additional Insured. The City of Lubbock shall be named as an additional insured on
General Liability and Auto Liability to the extent of Airline's indemnification duties
hereunder.
F. Waiver of Subrogation. Each policy shall be endorsed to include a waiver of
subrogation in favor of the City of Lubbock.
G. Increased Limits. Insurance coverages required of Airline shall be subject to adjustment
from time to time to comply with any changes in minimum requirements reasonably
determined by City to be necessary provided such coverage is consistent with industry
standards.
H. Contents Insurance. Airline shall be solely responsible for obtaining insurance policies
that provide coverage for losses of Airline owned property. City shall not be required to
provide such insurance coverage or be responsible for payment of Airline's cost for such
insurance.
I. Builders Risk Insurance. During any period of construction or reconstruction for which
Airline contracts, Airline shall carry, or shall require its contractor or contractors to carry,
a policy of Builders Risk Insurance in an amount sufficient to insure the value of the
work.
Additional Requirements. Insofar as said insurance provides protection against liability
for damages to third parties for personal injury, death, and property damage, City shall be
included as an additional insured to the extent of Airline's indemnification duties
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hereunder; provided such liability insurance coverage shall also extend to damage,
destruction, and injury to City -owned or City -leased property and City personnel, and
caused by or resulting from work, acts, operations, or omissions of Airline, its officers,
agents, employees, and independent contractors arising from or related to this agreement.
City shall have no liability for any premiums charged for such coverage, and the
inclusion of City as an additional insured is not intended to, and shall not, make City a
partner or joint venturer with Airline in its operations on the Airport.
Section 8.02. Indemnification. Airline covenants that it and all of its agents, servants, and
employees will use due care and diligence in all of its or their activities and operations at the
Airport.
A. General Indemnification. Airline agrees to defend, indemnify and hold harmless City
and its officers, and employees from and against all suits, actions, claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses (including but not
limited to reasonable fees of attorneys, court costs and litigation expenses) of whatever
kind or nature, known or unknown, contingent or otherwise, brought against City because
of any injury, including death at any time resulting from bodily injury, damages for care
and loss of services, or damage received or sustained by any person, persons or property
arising out of or resulting from any negligent act, error, or omission of Airline, its agents
or its employees arising out of the operations of Airline or Airline's performance,
purported performance, or non-performance of this Agreement or Airline's activities at
the Airport.
B. Environmental Harm — Indemnity. Without limiting any provisions of this Agreement,
Airline shall also defend, indemnify and hold City and its officers, officials, and
employees harmless from and against all suits, actions, claims, demands penalties, fines,
liabilities, settlements, damages, costs and expenses (including but not limited to
reasonable attorney's and reasonable consultant's fees, court costs and litigation
expenses) of whatever kind or nature, known or unknown, contingent or otherwise,
brought against City arising out of or in any way related to:
1. Any actual, threatened or alleged contamination by Hazardous Substances of the
Premises during the time of the lease or contamination by Hazardous Substances
of the Airport caused or contributed to by Airline or its agents during, but not
prior to, the term of this agreement;
2. the presence, disposal, release or threatened release of Hazardous Substances
caused or contributed to by Airline or its agents at the Airport during the term of
this agreement that is on, from or affects the soil, air, water, vegetation, buildings,
personal property, persons, animals or otherwise at the Airport;
3. any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to contamination by Hazardous Substances
introduced by or contributed to Airline at the Airport during the term of this
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agreement; or
4. any violation by Airline during the term of this agreement of any Environmental
Laws that affects the Airport.
Airline's obligations and liabilities under this Section 8 shall survive the termination of
this Agreement and the transactions contemplated in this Agreement.
C. Limitations.
This indemnification agreement shall not extend to or be construed to require Airline to,
defend, indemnify and hold harmless City, its officers, and employees from and against
any and all liability, claims, damages, losses or expenses, including attorneys fees, arising
out of bodily injury to persons or damage to property caused by, resulting from; or arising
out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys,
change orders, designs or specifications by City, or the agents or employees or officers of
City or (2) the giving or failure to give directions or instructions by City or agents or
employees or officers of City where such giving or failure to give directions or
instructions is the primary cause of bodily injury to persons or damage to property or (3)
negligence or willful misconduct by the City, or agent or employees or officers of the
City to the extent allowed by Law.
D. Scope of Indemnification. In addition, to the extent not limited by Section 8.02(C) with
respect to any claims, actions, suits, damages or judgements caused by or resulting from
acts, omissions or operations of Airline, its agents, servants, or employees, at the Airport
during the term of this Agreement, Airline shall (1) investigate or cause the investigation
of accidents involving such injuries; (2) negotiate or cause to be negotiated all claims
made as may be deemed expedient by Airline, and defend, or cause to be defended, suits
for damages, even if groundless, false or fraudulent, brought on account of such injuries
or damages, in the name and on behalf of City; (3) pay and satisfy judgements finally
establishing the liability of City in all actions defended by Airline pursuant to this
section; and (4) pay or cause to be paid: a) all costs taxed against City in any legal
proceeding defended or caused to be defended by Airline as aforesaid; b) any interest
accruing up to the date of payment by Airline; c) all premiums charged upon appeal
bonds required in such proceedings; and d) all expenses incurred by City for
investigation, negotiation, and defense, including but not limited to reasonable expert
witnesses' and attorneys' fees incurred, should Airline fail to provide the defense and
indemnification required herein.
E. Miscellaneous. City shall, promptly upon receipt, give Airline every demand, notice,
summons, or other process received in any claim or legal proceeding contemplated
herein. In the event City shall fail to give Airline notice of any such demand, notice,
summons, or other process received by City and such failure to give notice shall result in
prejudice to Airline in the defense of any action or legal proceeding contemplated herein,
such failure or delay shall release Airline of its liability as set forth in this paragraph
insofar as only the particular claim or legal proceeding is concerned, and only to the
30
extent of such prejudice. Nothing in this Article 8 shall be deemed a change or
modification in any manner whatsoever of the method or conditions of preserving,
asserting, or enforcing any claim or legal liability against City. This Section 8.02 shall
not be construed as a waiver of City's immunity. The provision of this Section 8.02 shall
not be construed to prohibit Airline from seeking contribution or indemnity from any
third party which may have cause or contributed to the event for which Airline
indemnified City.
Section 8.03. Non-liabilfty of City. City shall not in any event be liable for any acts or
omission of Airline, or its agents, servants, employees, or independent contractors, or for any
condition resulting from the operations or activities of Airline, Airline's agents, servants,
employees, or independent contractors at the Airport either to Airline or to any other person.
City shall not be liable for Airline's failure to perform any of its obligations under this
Agreement or for any delay in the performance thereof, nor shall any such delay or failure be
deemed a default by City.
31
ARTICLE 9
TRANSFER OF AIRLINE'S PREMISES BY
ASSIGNMENT OR SUBLETTING
Section 9.01. General. Airline shall not assign, transfer, convey, sell, mortgage, pledge or
encumber (hereinafter collectively referred to as "assignment") or sublet Airline's Premises
without the advance written approval of City, which approval shall not be unreasonably
withheld, conditioned or delayed.
If Airline fails to obtain advance written approval of any such assignment or sublease, City, in
addition to the rights and remedies set forth in Article 12, shall have the right to refuse to
recognize such agreement, and the assignee or sublessee shall acquire no interest in this
Agreement or any rights to use Airline's Premises.
Section 9.02. Cily Approval of Assignments.
Notwithstanding the foregoing, this Section shall not be interpreted to preclude the assignment,
in whole or in part, of this Agreement and Airline's rights and obligations hereunder to a parent,
subsidiary, merged company or any purchaser of all or substantially all of Airline's assets if
such parent, subsidiary, merged company or any purchaser of all or substantially all of Airline's
assets continues, after such assignment, to conduct an air transportation business at the Airport at
which Airline is a Signatory Airline and assumes all rights and obligations consistent with the
provisions of this Agreement. Written notice of such assumption shall be provided by the parent,
subsidiary, merged company or any purchaser of all or substantially all of Airline's assets thirty
(30) consecutive calendar days after the effective date of such assignment.
Section 9.03. CityApproval of Subleases. It shall not be unreasonable for City to disapprove
or condition a sublease of Airline's Premises under any or all of the following circumstances,
among others:
A. If the sublessee is an air transportation company who is not, and is not willing to become,
a Signatory Airline.
B. If a Signatory Airline is, in the determination of City, in need of Airline's Premises
proposed to be subleased; provided, however, that such Signatory Airline is willing to
take such Airline's Premises on substantially the same terms and conditions as proposed
in the sublease and is willing to provide Airline with a reasonable security deposit not to
exceed one month's rentals, fees and charges.
Section 9.04. Reasons for Disapproval Not Comprehensive. The circumstances under which
City may determine to disapprove or condition assignments and subleases set forth in this Article
9 are not intended to be a comprehensive list of all those which City may impose under Article 9.
Section 9.05. Method of Obtaining Approval. Airline, when requesting an approval of an
assignment or sublease under Section 9.01, shall include with its request a copy of the proposed
32
agreement, if prepared, or a detailed summary of the material terms and conditions to be
contained in such agreement. Any proposed agreement or detailed summary thereof shall
provide the following information: (1) Airline's Premises to be assigned or sublet; (2) the terms;
(3) if a sublease, the rentals and fees to be charged; and (4) all material terms and conditions of
the assignment or sublease City may reasonably require. If approved, Airline shall submit a fully
executed copy of such agreement to City within thirty (30) consecutive calendar days prior to the
commencement of the assignment or sublease.
Section 9.06. Administrative Charge. In the event Airline is authorized by City to sublease
any portion of Airline's Premises, Airline may charge such sublessee, in addition to a reasonable
charge for any services and Airline -owned property provided by Airline or actual costs other
than rental costs incurred by Airline, reasonable rentals not to exceed one hundred fifteen percent
(115%) of Airline's rental for such portion of Airline's Premises.
Section 9.07. Airline to Remain Liable. Airline shall remain fully and primarily liable during
the Term of this Agreement for the payment of all of the rental due and payable to City for the
Airline's Premises that are subject to a sublease under Article 9, and fully responsible for the
performance of all the other obligations hereunder, unless otherwise agreed to by City.
Section 9.08. City Determination of Type of Agreement. City shall have the right to examine
the terms of any agreement or arrangement submitted to it for approval pursuant to this Article 9
and determine whether such agreement or arrangement is most appropriately characterized as an
assignment or sublease, regardless of Airline's characterization of such agreement or
arrangement.
33
ARTICLE 10
RELINQUISHMENT OF AIRLINE'S PREMISES
Section 10.01. Notice of Intent to Relinquish Airline's Premises. In the event Airline desires
to relinquish any of Airline's Premises, Airline shall provide written notice to City thirty (30)
consecutive calendar days in advance of such relinquishment and shall identify in such notice all
areas it wishes to relinquish. City shall make its best efforts to lease such areas to another
airline, to the extent the proposed relinquished Airline's Premises are suitable for another airline,
and subject to the limitations of Article 9.
Section 10.02. Non -Waiver of Responsibility. Airline shall continue to be solely responsible
pursuant to this Agreement for the payment of all rentals, fees and charges related to Airline's
Premises until another airline commences payment for the relinquished part of Airline's
Premises as provided in Section 10.03.
Section 10.03. Reduction of Rent, Fees and Charges. Airline's rentals, fees and charges
related to that portion of Airline's Premises taken by another airline, pursuant to such airline's
agreement with City, shall be reduced in the amount of the rentals, fees and charges paid by such
other airline. This reduction shall begin only when the new airline that contracts with City for its
use of Airline's Premises begins payment for Airline's Premises.
34
ARTICLE 11
DEFAULT
Section 11.01. Default by Airline. Under the following circumstances, Airline is considered to
be in default but only for so long as such occurrence is not remedied by Airline, when:
A. Failure within thirty (30) consecutive calendar days after receipt of written notice from
City of delinquency to:
(1) pay the rentals, fees and charges established in Article 5;
(2) submit reports as required in Article 5; or
(3) remit PFC Revenue pursuant to Article 5; or
B. Failure within fifteen (15) consecutive calendar days after receipt of written notice from
City of delinquency to maintain insurance as required in Article 8.
C. Failure to commence operations within forty-five (45) consecutive calendar days after
receipt of written notice to begin.
D. Upon default, without terminating this Agreement, City may reenter the Airline's
Premises and improve and relet all or any part of it to others. Airline shall continue to be
responsible for and shall pay all rentals, fees and charges required pursuant to this
Agreement, provided, however, that Airline shall receive a credit for rentals, fees and
charges received by City for the reletting of Airline's Premises after first deducting all
costs incurred by City for renovation and an administrative fee not to exceed ten percent
(10%) of all rentals, fees and charges received for the relet premises.
E. Upon default, at any time before or after a reentry and reletting as provided in Section
11.01(D), City may terminate Airline's rights under this Agreement as provided in
Section 12.02, without any restriction upon recovery by City for past due rentals, fees and
charges and other obligations of Airline. Collection of past due rentals, fees, charges and
other costs born by City shall constitute the extent of the damages available to City.
35
ARTICLE 12
TERMINATION
Section 12.01. Events Permitting Termination by Airline. Airline may terminate this
Agreement and all of its obligations hereunder, at any time that Airline is not in default in its
payments or other obligations to City hereunder, upon or after the occurrence of any one of the
following events:
A. The breach by City of any of the material terms or agreements contained in this
Agreement and the failure of City to remedy such breach upon the expiration of thirty
(30) consecutive calendar days after receipt of written notice from Airline to remedy such
breach; or
B. Action by City or such other governing jurisdiction prohibiting Airline from using the
Airport for a period exceeding sixty (60) consecutive calendar days because of any
deficiency of the Airport or an unsafe operating condition existing at the Airport.
Section 12.02. Events Permitting Termination by City. City may terminate this Agreement
and all of its obligations hereunder upon written notice ("Notice of Termination") and may
exercise all rights of entry and reentry upon the Premises, without forfeiture, waiver, or release
of City's rights to any sum of money due, upon or after the occurrence of any one of the
following events of Default:
A. Airline fails within thirty (30) consecutive calendar days after Airline's receipt of written
notice from City of delinquency to: (1) pay rentals, fees, and charges established in
Article 5; (2) submit reports as required in Article 5; or (3) remit PFC Revenue pursuant
to Article 5. Airline fails within fifteen (15) consecutive calendar days after Airline's
receipt of written notice from City of delinquency to provide and maintain insurance as
required in Article 8.
B. The breach by Airline of any of the other terms, agreements, or conditions contained in
this Agreement, not specified in Section 12.02A and the failure of Airline to remedy such
breach upon the expiration of forty-five (45) consecutive calendar days after receipt of
written notice from City to remedy such breach; or
Termination shall be effective on the date Airline received the Notice of Termination from City
or at a date specified in the Notice of Termination, provided that Airline has not cured the
Event(s) of Default by such date.
36
ARTICLE 13
GENERAL PROVISIONS
Section 13.01. Rules and Regulations.
A. Airline shall observe and obey all lawful, reasonable and non-discriminatory Rules and
Regulations promulgated, from time to time during the Term hereof, by City governing
conduct on and operations at the Airport and use of its facilities. Copies of the Rules and
Regulations, as adopted, shall be forwarded to Airline's local manager. City agrees that
all Rules and Regulations so promulgated shall not be inconsistent with any legally
authorized rule or regulation of the FAA, or any other Federal or State agency, which is
binding in law on Airline, as the same now are or may from time to time be amended or
supplemented.
B. Airline shall not violate, nor knowingly permit its agents, contractors, or employees
acting on Airline's behalf to violate any such Rules and Regulations.
Section 13.02. Compliance with Law.
A. Regulations, Ordinances, and Laws of City, County, State and United States.
Airline shall not use the Airport or any part thereof, or knowingly permit the same to be
used by any of its employees, officers, agents, subtenants, invitees, or licensees for any
illegal purposes and shall, at all times during the Term of this Agreement, comply with
all applicable regulations, ordinances, and laws of any City, County, or State Government
or of the U.S. Government, and of any political division or subdivision or agency,
authority, or commission thereof which may have jurisdiction to pass laws or ordinances
or to make and enforce rules or regulations with respect to the uses hereunder or Airline's
Premises.
B. Assurances to the Federal Aviation Administration. Airline shall comply with all
applicable Federal laws, regulations, executive orders, policies, and guidelines, including
but not limited to those listed on Exhibit "E".
Section 13.03. Granting of More Favorable Terms. City covenants and agrees not to enter
into any lease, contract, or any other agreement with any other air transportation company
providing scheduled service at the Airport containing substantially more favorable terms than
this Agreement, or to grant to any tenant engaged in scheduled air transportation, rights or
privileges with respect to the Airport that are not accorded Airline hereunder, unless the same
rights, terms, and privileges are concurrently made available to Airline.
Section 13.04. Consents, Approvals and Notices. All notices, consents, and approvals required
by this Agreement shall be in writing and shall be given by registered or certified mail by
depositing the same in the U.S. mail in the continental United States, postage prepaid, return
receipt requested, or by personal delivery, or by facsimile transmission to the "FAX" number
given below, provided that the completed transmission is electronically verified or by reputable
37
overnight delivery service. Either party shall have the right, by giving written notice to the other,
to change the address or FAX at which its notices are to be received. Until any such change is
made, notices shall be delivered as follows.
City:
Director of Aviation
Lubbock International Airport
5401 N. Martin Luther King Blvd.
Rt. 3 Box 389
Lubbock, TX 79403
Telephone: (806) 775-3126
FAX: (806) 775-3133
2. Airline:
Director
Airport Operations
Atlantic Southeast Airlines, Inc
100 Hartsfield Centre Parkway, Suite 800
Atlanta, Georgia 30354
Telephone: (404) 766-1400
FAX: (404) 209-1829
A. If notice, consent or approval is given in any other manner or at any other place, it shall
also be given at the place and in the manner specified above.
B. The effective date of such notice, consent or approval shall be the date of the receipt as
shown by the U.S. Postal Service Return Receipt, or the date personal delivery is certified
or the next business day if sent by overnight delivery, or the date of electronic
verification of the facsimile transmission, unless provided otherwise in this Agreement.
Section 13.05. Contract Interpretation.
A. Separability. In the event any covenant, condition or provision herein is held to be
invalid, illegal, or unenforceable by any court of competent jurisdiction, such covenant,
condition or provision shall be stricken. If stricken, all other covenants, conditions and
provisions of this Agreement shall remain in full force and effect provided that the
striking of such covenants, conditions or provisions does not materially prejudice either
City or Airline in its respective rights and obligations contained in the valid covenants,
conditions or provisions of this Agreement.
B. Waiver. No provision of this Agreement shall be deemed to have been waived by either
party unless such waiver is in writing, signed by the party making the waiver and
addressed to the other party, nor shall any custom or practice which may evolve between
the parties in the administration of the terms of this Agreement be construed to waive or
lessen the right of either party to insist upon the performance of the other party in strict
accordance with the terms of this Agreement.
38
C. Gender, Singular/Plural. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
D. Captions and Section Headings. The captions, section headings, and table of contents
contained in this Agreement are for convenience of reference only, and in no way limit,
define, or enlarge the terms, scope, and conditions of this Agreement.
E. Entire Agreement. This Agreement represents the entire contract between the parties
and, except as otherwise provided herein, may not be amended, changed, modified, or
altered without the written consent of the parties hereto. This Agreement incorporates all
of the conditions, agreements, and understandings between the parties concerning the
subject matter of this contract, and all such conditions, understandings and agreements
have been merged into this written Agreement. No prior condition, agreement, or
understanding, verbal or otherwise, of the parties or their agents shall be valid or
enforceable unless embodied in this written Agreement.
F. Relationship of Contract Documents. All documents attached to this Agreement or
incorporated into this Agreement are complementary, and any requirement of one
contract document shall be as binding as if required by all.
G. Exhibits, Certificates, Documents Incorporated and Attachments. Incorporation by
Reference: All certificates, documents, exhibits, attachments, riders, and addenda
referred to in this Agreement, including but not limited to exhibits referred to in this
Agreement, are hereby incorporated into this Agreement by reference and made a part
hereof as though set forth in full in this Agreement to the extent they are consistent with
its conditions and terms.
H. Applicable Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, and the ordinances, laws, rules and
regulations of the City of Lubbock.
I. Successors. All covenants, stipulations and agreements in this Agreement shall extend to
and bind the legal representatives, successors, and assigns of the respective parties hereto.
J. Governmental Rights and Powers. Nothing in this Agreement shall be construed or
interpreted as limiting, relinquishing or waiving any rights of ownership enjoyed by City
in the Airport property, or waiving or limiting City's control over the management,
operations or maintenance of property, except as specifically provided in this Agreement,
or impairing, exercising, waiving, or defining governmental rights and the police powers
of City.
K. Cross -References. References in the text of this Agreement to articles, sections or
exhibits pertain to articles, sections or exhibits of this Agreement, unless otherwise
specified.
39
Section 13.06. Inspection. City shall have the right, but not the obligation or duty, to inspect
Airline's Premises and operations at all reasonable times upon advance notice for any purpose
connected with this Agreement, in the exercise of City's governmental functions, and for fire
protection, safety or security purposes.
The failure of City to inspect or monitor or give Airline notice of a default or a notice of a
hazardous or unsafe condition with respect to Airline's operations under this Agreement shall not
release Airline from its liability to perform its obligations under this Agreement or impose any
liability on City.
Section 13.07. Quiet Enjoyment. Airline shall, upon payment of the rentals, fees, and charges
required hereunder and upon compliance with the terms, covenants, conditions, and obligations
on the part of Airline to be performed and complied with hereunder, peaceably have and enjoy
the rights, uses, and privileges of the Airport, its appurtenances, and facilities as granted herein
and by the Rules and Regulations.
Section 13.08. Non -liability of Agents and Employees. No member, officer, agent, director, or
employee of City or Airline shall be charged personally or held contractually liable by or to the
other party under any term or provision of this Agreement or because of any breach thereof or
because of its or their execution of attempted execution.
Section 13.09. No Partnership or Agency. Nothing contained in this Agreement is intended or
shall be construed in any respect to create or establish any relationship other than that of lessor
and lessee, and nothing herein shall be construed to establish any partnership, joint venture or
association or to make Airline the general representative or agent of City for any purpose
whatsoever.
Section 13.10. Securi . In conjunction with Airline's operations at Airport, access shall be
made available for authorized persons and authorized vehicles to Airline's aircraft parked in
designated parking areas via Terminal Building doors and the ramp gates to the Security
Identification Area ("SIDA"). In order to maintain the security of restricted areas on Airport and
at and beyond the designated parking areas, Airline will be responsible for the control of persons
and vehicles entering the SIDA via the ramp gates to and from Airline's aircraft. Airline agrees
to implement and maintain, security measures with respect to access control to and from
Airline's aircraft and with respect to the use of the SIDA, as required by federal regulations.
Such security measures shall be reduced to writing and be provided to the Director of Aviation.
Airline agrees to implement and maintain, as a minimum, the following security measures
concerning access control to and from the SIDA:
A. Airline and its agents shall participate in the Airport's security program and comply with
applicable security procdures including, but not limited to, the securing and wearing of
ramp badges by Airline's and its agent's personnel and clearly identifying each of
Airline's vehicles by placing Airline's company or agent's name on each vehicle.
40
B. Airline and its agents shall not allow any unescorted person into the SIDA unless that
person has a valid Airport identification badge. Identification badges shall not be
considered valid unless the color code of the badge corresponds with the location in
which such person may enter, all as designated by the City's Department of Aviation.
People who do not have valid identification badges to be present on the SIDA shall be
escorted at all times they are present on the SIDA by a person with a valid identification
badge. Issuance of ramp or SIDA identification badges shall be made only by the
Department of Aviation and shall be at the sole descretion of the Department of Aviation.
Ramp and other identification badges shall be denied to people not meeting security
requirements.
C. During all hours, access points to the SIDA shall be secured and locked.
D. Airline and its agents shall challenge any persons not recognized as being authorized to
have access to the SIDA from Airline's operations.
E. Airline and its agents shall restrict the activities of its employees who are authorized to be
in the SIDA to that portion of the SIDA in which Airline is authorized to operate.
F. Airline and its agents are responsible for training personnel in the security procedures
which are described in this Agreement and in all other security procedures developed by
City.
G. Airline and its agents shall immediately notify the Airport Police of City's Department of
Aviation of any suspicious activities observed in or about the SIDA.
H. Any unresolved questions concerning Airport security shall be directed to City's
Department of Aviation.
I. Airline further agrees to reimburse City for any penalties or fines levied against City by
the Federal Aviation Administration or successor agencies due to Airline's or its agent's
failure to abide by any security measures described herein. City further agrees to
reimburse Airline for any penalties or fines levied against Airline by the Federal Aviation
Administration or successor agencies due to City's, its Officers or agent's failure to abide
by any security measures described herein.
The Director of Aviation or his designated representative will periodically evaluate
compliance with this section. Failure of Airline to fully comply with the procedures set
forth in this section shall be sufficient grounds for City to immediately take any and all
necessary corrective measures until security that is acceptable to City is restored.
Section 13.11. Prudent Operation. City shall operate the Airport with due regard for the
interests of the public and in such a manner as to produce revenues from concessionaires, other
tenants, public parking operations, and other commercial uses of the Airport of a nature and
amount as would reasonably be produced by a prudent operator of an Airport of similar size, use
and activity, consistent with sound management principles and applicable law, in the interest of
41
protecting the financial integrity of the Airport. City hereby acknowledges its obligation under
the Bond Ordinances to apply and use all Airport revenues for the operation, maintenance,
administration, development, financing, and retirement of debt of the Airport System.
Section 13.12. Subordination to Agreements with the U.S. Government. This Agreement is
subject and subordinate to the provisions of any agreements heretofore or hereafter made
between City and the United States, relative to the operation or maintenance of the Airport, the
execution of which has been required as a condition precedent to the transfer of federal rights or
property to City for Airport purposes, or to the expenditure of federal funds for the improvement
or development of the Airport, including the expenditure of federal funds for the development of
the Airport in accordance with the provisions of the Federal Aviation Act of 1958, as amended,
or in accordance with successive airport development acts. City covenants that it has no existing
agreements with the United States in conflict with the express provisions hereof.
Section 13.13. Non -waiver of Rights. No waiver of default by either party of any of the terms,
covenants, and conditions hereof to be performed, kept and observed by the other party shall be
construed as, or shall operate as, a waiver of any subsequent default of any of the terms,
covenants, or conditions herein contained, to be performed, kept and observed by the other party.
Section 13.14. Federal Aviation Act, Section 308. Nothing herein contained shall be deemed to
grant to Airline any exclusive right or privilege within the meaning of Section 308 of the Federal
Aviation Act for the conduct of any activity on the Airport, except that, subject to the terms and
provisions hereof, Airline shall have the right to exclusive possession of the Exclusive Use Space
leased to Airline under the provisions of this Agreement.
Section 13.15. Generally Accepted Accounting Principles. Whenever any report or disclosure
referred to in this Agreement consists, either in whole or in part, of actual, year-end financial
information said financial information shall be prepared in accordance with generally accepted
accounting principles consistently applied, if applicable.
Section 13.16. Forum Selection. Any cause of action, claim, suit, demand, or other case or
controversy arising from or related to this Agreement shall only be brought in a State district
court located in Lubbock County, Texas or in the Federal District Court located in Texas. The
parties irrevocably admit themselves to, and consent to, the jurisdiction of either or both of said
courts. The provisions of this section shall survive the termination of this Agreement and
Terminal Building Lease.
Section 13.17. Fair Dealing. Airline covenants and warrants that the only person or firm
interested in this Agreement as principal or principals is named in this Agreement and that no
other person or firm has any interest in this Agreement, and this Agreement is entered into by
Airline without collusion on the part of Airline with any person or firm, without fraud and in
good faith.
42
EXECUTED this the
CITY OF LUBBOCK
14th day of .Tune , 2001.
ATTEST:
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
W. b#vr
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Mark N. Earle, Dir ctor of Aviation
APPROVED AS TO FORM:
William deHaas, Contract Manager/Attorney
43
ATLANTIC SOUTHEAST AIRLIMTES, INC.
AT ST:
Secretary
Resolution No. 2001-80223
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Resolution No. 2001-R 0223
EXHIBIT C.2
Resolution No. 2001-R0223
EXHIBIT "D"
GATE ASSIGNMENTS
ORIGINAL GATES
GATE 3: Continental Express
GATE 4:
Atlantic Southeast Airlines
GATE 5:
American Eagle
GATE 6:
Southwest Airlines
GATE 7:
Southwest Airlines
GATE 8: Southwest Airlines and American Eagle
EXPANDED GATES
GATE 1: Not Assigned
GATE 2: Not Assigned
GATE 9: Not Assigned
Resolution No. 2001-RO223
EXHIBIT "E"
ASSURANCES TO THE FEDERAL AVIATION
ADMINISTRATION
Federal Legislation
a. Title 49, U.S.C., subtitle VII, as amended.
b. Davis -Bacon Act — 40 U.S.C. 276(a), et sea. 1
c. Federal Fair Labor Standards Act — 2 29 U.S.C. 201, e"se
t sea .
d. Hatch Act — 5 U.S.C. 1501, e.
e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 Title 42
U.S.C. 4601, et sea. 1 2
f. National Historic Preservation Act of 1966 — Section 106 —16 U.S.C. 470(f). 1
g. Archeological and Historic Preservation Act of 1974 —16 U.S.C. 469 through 469c. 1
h. Native Americans Grave Repatriation Act — 25 U.S.C. Section 3001, e"se
i. Clean Air Act, P.L. 90-148, as amended.
j. Coastal Zone Management Act, P.L. 93-205, as amended.
k. Flood Disaster Protection Act of 1973 — Section 102(a) — 42 U.S.C. 4012a. 1
1. Title 49, U.S.C., Section 303, (formerly known as Section 4(f))
m. Rehabilitation Act of 1973 — 29 U.S.C. 794.
n. Civil Rights Act of 1964 — Title VI — 42 U.S.C. 2000d through d-4.
o. Age Discrimination Act of 1975 — 42 U.S.C. 6101, et sea.
p. American Indian Religious Freedom Act, P.L. 95-341, as amended.
q. Architectural Barriers Act of 1968 — 42 U.S.C. 4151, et sea. i
r. Power plant and Industrial Fuel Use Act of 1978 — Section 403 — 2 U.S.C. 8373. i
s. Contract Work Hours and Safety Standards Act — 40 U.S.C. 327, et sea. 1
t. Copeland Antikickback Act —18 U.S.C. 874. 1
u. National Environmental Policy Act of 1969 — 42 U.S.C. 4321, e"se
1
v. Wild and Scenic Rivers Act, P.L. 90-542, as amended.
w. Single Audit Act of 1984 — 31 U.S.C. 7501, et sea. 2
x. Drug -Free Workplace Act of 1988 — 41 U.S.C. 702 through 706.
Executive Orders
Executive Order 11246
— Equal Employment Opportunity 1
Executive Order 11990
— Protection of Wetlands
Executive Order 11998
— Flood Plain Management
Executive Order 12372
— Intergovernmental Review of Federal Programs
Executive Order 12699
— Seismic Safety of Federal and Federally Assisted New Building
Construction 1
Executive Order 12898
— Environmental Justice
Federal Regulations
a. 14 CFR Part 13 — Investigative and Enforcement Procedures.
b. 14 CFR Part 16 — Rules of Practice for Federally Assisted Airport Enforcement Proceedings.
c. 14 CFR Part 150 — Airport noise compatibility planning.
d. 29 CFR Part 1 — Procedures for predetermination of wage rates. '
e. 29 CFR Part 3 — Contractors and subcontractors on public building or public work financed
in whole or part by loans or grants from the United States. 1
f. 29 CFR Part 5 — Labor standards provisions applicable to contracts covering federally
financed and assisted construction (also labor standards provisions applicable to non -
construction contracts subject to the Contract Work Hours and Safety Standards Act). '
g. 41 CFR Part 60 — Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Federal and federally assisted contracting requirements).'
h. 49 CFR Part 18 — Uniform administrative requirements for grants and cooperative
agreements to state and local governments. 3
i. 49CFR Part 20 — New restrictions on lobbying.
j. 49 CFR Part 21 — Nondiscrimination in federally -assisted programs of the Department of
Transportation — effectuation of Title VI of the Civil Rights Act of 1964.
k. 49 CFR Part 23 — Participation by Disadvantage Business Enterprise in Airport Concessions.
1. 49 CFR Part 24 — Uniform relocation assistance and real property acquisition for Federal and
federally assisted programs. 1 2
in. 49 CFR Part 26 — Participation By Disadvantaged Business Enterprises in Department of
Transportation Programs.
n. 49 CFR Part 27 — Nondiscrimination on the basis of handicap in programs and activities
receiving or benefiting from Federal financial assistance. 1
o. 49 CFR Part 29 — Government wide debarment and suspension (non -procurement) and
government wide requirements for drug-free workplace (grants).
p. 49 CFR Part 30 - Denial of public works contracts to suppliers of goods and services of
countries that deny procurement market access to U. S. Contractors.
q. 49 CFR Part 41— Seismic safety of Federal and federally assisted or regulated new building
construction. 1
Office of Management and Budget Circulars
a. A-87 — Cost Principles Applicable to Grants and Contracts with State and Local
Governments.
b. A-133 —Audits of States, Local Governments, and Non -Profit Organizations
' These laws do not apply to airport planning sponsors.
2 These laws do not apply to private sponsors.
3 49 CFR Part 18 and OMB Circular A-87 contain requirements for State and Local
Governments receiving Federal assistance. Any requirement levied upon State and Local
Governments by this regulation and circular shall also be applicable to private sponsors
receiving Federal assistance under Title 48, United States Code.