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HomeMy WebLinkAboutC2005-656 - 10/25/2005 - Approved ~ Non-Signatory Airline Operating Agreement Between CITY OF CORPUS CHRISTI and TRANSPORTES AEROMAR S.A. DE C.V. THIS OPERATING AGREEMENT, is made and entered into this 25TH day of October. 2005, by and between the CITY OF CORPUS CHRISTI (hereinafter referred to as "City "), a political subdivision of the State of Texas created and existing under Texas State statutes, and TRANSPORTES AEROMAR, S.A. DE C.V. (hereinafter referred to as "Operator"), a corporation organized and existing under the laws of the state of Mexico. I. GENERAL REQUIREMENTS City owns and operates Corpus Christi International Airport (hereinafter referred to as "Airport") in Nueces County, Texas. 1. Intent of Agreement: This Operating Agreement details the City's relationship with Operator relative to Operator's access and use of Airport's facilities by airline. Non Signatory Airlines provide non-signatory passenger or air cargo airline services from the Airport but do not have a lease agreement with the City for space within the Airport's passenger terminal building or an on Airport air cargo terminal facility. Attachment A further outlines the details of the operations, user fees, and incentives offered by City from the inception of this Operating Agreement through the end of the first twelve months of operations by Operator at the Airport. 2. Use of Facilities: By entering into an Operating Agreement with the City, Operator may use the Airport's facilities as set forth in this Operating Agreement and for no other purpose. 3. General Airline User Fees: As set forth in detail in Section III hereof, Operator is responsible for the payment of established user fees as they relate to their activities at the Airport. User fees assessed by the City to Operator are detailed in the Airport's Schedule of Rates and Charges. User fees are classified as Signatory and Non-signatory, with non-signatory fees being paid by those operators who do not have a lease agreement with the City. The current version of such Schedule is attached to this Agreement as Exhibit A. which exhibit shall be updated when amended by the City from time to time. II. USE OF PREMISES 1. Aircraft Operations: Operator and/or any airline engaged by Operator (Airline) shall have the right to conduct activities at the Airport connected with the operation of passenger or cargo flights. This includes the nonexclusive right to enter upon and make customary and reasonable use of the common use facilities of the Airport, including the runways, taxiways, and public ramps for landing, taxiing, loading and unloading of its aircraft in connection with 2005-656 10/25/05 M2005-373 Transportes Aeromar. SA DE c.v. Operator's business. Aircraft maintenance performed at Airport must be conducted on an established Fixed Base Operator (FBO) leased site. Neither Operator nor Airline may use the runways, taxiways, or ramp for any aircraft operated or controlled by airline that exceeds the design strength or capability of the surface as described in the current Airport Layout Plan as approved by the Federal Aviation Administration (FAA) Consistent with federal requirements, Operator or Airline shall remove disabled aircraft from the runways, taxiways, aprons and ramps and shall place any such disabled aircraft only in such storage areas as may be designated by City and may store such aircraft only on such terms and conditions as may be established by City. In the event Operator or Airline fails to remove any disabled aircraft owned or engaged by it as expeditiously as possible, City may, but shall not be obligated to, cause the removal of such disabled aircraft and Operator agrees City shall not be liable to either Operator or Airline for any damage caused to the aircraft during such removal Operator shall reimburse City for any and all expenses incurred In such removal 2. Terminal and Ramp Operations: Operator and Airline shall have access to terminal gates and aircraft parking ramp for the sole purpose of loading or unloading aircraft and the ground movement of cargo and passengers. Operator's aircraft shall be parked in areas that are designated by the City for the size of aircraft being operated. During such operations, Operator shall occupy only such terminal ramp space as is needed in the immediate vicinity of the aircraft being loaded or unloaded, and in such a manner as to insure the unimpeded ingress and egress of other aircraft and ground movement operators. Use of the terminal ramp shall be in common, and in cooperation with, all other airlines and ground operators. Operator is not authorized to park vehicles or store personal or company property on the ramp or other areas of the Airport without City permission. During operations, the ramp shall be kept free of all obstructions. The purchase at the Airport or elsewhere, of fuels, lubricants and any other supplies and services, from any person or company, shall be subject to the City's right to require that each provider of services and/or supplies to Operator secures a permit from City to conduct such activity at the Airport, pays required fees, and abides by all reasonable rules and regulations established by City. No discriminatory limitations or restrictions shall be imposed by City that interfere with such purchases; provided, however, nothing herein shall be construed to permit Operator to store aviation fuels at the Airport. The granting of the right to store aviation fuels shall be subject to the execution of a separate agreement between Operator and City. Operator's ground support and maintenance operations on the ramp shall be conducted by Operator's own employees, or by the employees of Airline, or by a third party contractor operating under an agreement with City authorizing such services to be provided, in accordance with City's Rules and Regulations 3. Signs and Other Operations: Neither Operator nor Airline shall post, erect, display, or maintain signs, posters, or handbills in view of the general public, nor use sound equipment, at or near the area as related to its passenger or cargo services unless prior approval is given by the Director of Aviation. Operator shall not conduct from, or on, the Airport any business or any commercial operation not herein or otherwise authorized by the City. ~/ 4. Trash, Garbage, etc.: Operator and/or Airline shall provide complete and proper sanitary handling and disposal of all trash, garbage, and other refuse caused as a result of the operation of its business. Operator and/or Airline shall use the receptacles and/or 2 dumpsters provided by Airport for all such garbage, trash, and other refuse. Piling of boxes, cartons, barrels, pallets, debris, or similar items in an unattractive or unsafe manner, on or about the Airport, shall not be permitted. Operator and/or Airline shall require its employees to pick up and properly dispose of any and all trash or FOD materials found on the ramp. 5. Restrictions on Use: Neither Operator nor Airline shall do or permit to be done anything either by act or failure to act, that is within its reasonable control, that shall cause the cancellation or violate the provisions of any policy of insurance for the Airport, or any part thereof, or that shall cause a hazardous condition so as to increase the risks normally associated with operations permitted by this Operating Agreement. The rights granted by this Operating Agreement shall not be exercised in such a way as to violate any of the Airport Rules and Regulations, City Ordinance, or Federal or State Law or Regulation, as they are now in existence or may be amended from time to time, all of which are incorporated herein by reference. Nor shall they be exercised in such a way as to unreasonably interfere with or adversely impact the operation, maintenance, or development of the Airport or other tenants or operators at the Airport. III. USER FEES (For Current Schedule of Rates and Charges see Exhibit A) 1. Airport User Fees: For the privilege of accessing the runways, taxiways, ramps, and passenger terminal facilities, unloading and loading aircraft, and conducting related aircraft ground support services at the Airport, Operator agrees to pay, on its own behalf and on behalf of Airline, all applicable landing fees, apron fees, FIS facility fees, terminal use fees, gate use fees, passenger security service fees, security badging fees, and any subsequently imposed fees in accordance with the City's current fee schedule, as may be amended periodically by City, subject to the limitations set forth below. Those performing terminal services (terminal services provider) and/or ground handling services for the Operator must be authorized to provide said services under separate agreement with the City. 2. Required Activity Reportsl Monthly Statement: Operator agrees that on or before the first of each month it will provide the Airport with a flight schedule detailing its planned use of Airport facilities, including aircraft size, number of landings, projected passenger counts and terminal, parking and access needs. Operator's terminal services provider may provide this information to City on Operator's behalf. The terminal services provider shall have this information on file for the three upcoming months. Before the tenth of the following month, Operator agrees to provide City with a charter activity report detailing the actual aircraft landings, including the type of aircraft and maximum gross landing weight for each aircraft as certificated by the FAA, number of passengers, both enplaned and deplaned, the amount by weight of freight and cargo, if applicable, and such other information as City may request, for the previous month along with calculation and payment of the appropriate fees. Operator's terminal services provider may provide this information and payment to City on Operator's behalf. City shall compare the reports of actual activity to the flight schedule and may request justification of any discrepancies not explained in the report. Exhibit B is a copy of City's current activity report form. 'Q v 3. Payment of Fees and Charges: Operator agrees to pay all fees and charges based upon the information contained in the monthly activity report which payment shall be made with the report. If the activity report is not filed. the City shall invoice Operator according to the 3 City's records, and payment shall be submitted immediately. If the City invoices, according to its records, and Operator thereafter submits a report, City shall make the necessary adjustments to the Operator's statement to reflect the actual aircraft landings and passenger counts reported. if the information provided supports an adjustment. Without waiving any other right available to the City in the event of a default in Operator's payment of rentals, fees or charges under this Agreement, if Operator is delinquent for a period of thirty (30) days or more in paying City any such rentals, fees or charges when due, Operator shall pay City interest thereon, from the date such rentals, fees or charges become payable to the date of payment, at the rate of one and one-half percent (1.5%) per month; PROVIDED, HOWEVER, that if the maximum interest rate then provided by law is less than one and one-half percent (1.5%) per month, then the interest rate shall be such maximum legal rate. Operator's terminal services provider may provide payment to City on Operator's behalf. 4. Books and Records Required to be Kept: During the term of this Agreement, Operator hereby agrees to keep and preserve at the office of its agent at the Airport, full, true and accurate books of account with records of all aircraft landings for aircraft operating on the Airport by Operator for the immediately preceding 36 months, and Operator agrees for itself and its agent to make such books and records available to City's representatives for inspection and audit during normal usual business hours. The acceptance by City of any payment made by Operator shall not preclude City from verifying the accuracy of Operator's report or from recovering any additional payment actually due from Operator. Should Operator underpay City, City shall have the right to charge interest as specified in 111-3 from the date the payment should have been made. City, at its expense and upon reasonable notice shall have the right from time to time to inspect and audit, during regular business hours, the books, records, and other data of the Operator relating to the provisions and requirements hereof. In the event that any audit determines that Operator has more than a five percent (5%) deficiency between the amounts due and the amounts paid to City, Operator shall pay the cost of said audit. Operator shall pay all deficiencies so determined by the audit within ten working days after receipt of an invoice therefore. Operator shall, upon request and to the greatest extent possible, furnish City information pertinent to City's planning purposes regarding Operator's future operations (including forecasts) at the Airport. Except for consolidated statistics for all airlines, City shall not release such future operations information without first obtaining Operator's consent unless (1) required to do so by law. or (2) required to do so to facilitate the sale of bonds for the use of Airport. Operator shall, for financial planning purposes, at earliest date and to the greatest extent possible, discuss with City its consideration of any changes to its schedule of operations or the type and series of aircraft used at the Airport (other than equipment substitution necessitated by occurrences beyond the control of Operator). Such notices will be kept confidential unless disclosure is required by law. ~ 5. Payments for Additional Services: In the event City provides Operator, at Operator's request, with services other than the normal use of terminal and runway and taxiway surfaces, including, but not limited to, special security services, janitorial services, environmental containment or remediation, maintenance and repair of Operator's facilities or equipment, foreign object debris removal, or utilities, Operator shall pay all charges 4 therefore within thirty (30) days after receipt of a statement for said additional services. Should these same services be required under emergency circumstances or in order to comply with applicable governmental rules and regulations, or required for public health, safety or welfare, Operator shall, at the request of the City, perform the necessary services in a manner and within a time frame acceptable to the City. If Operator elects not to perform or IS unable to perform those services in the manner prescribed by the City, the City reserves the right to provide for the performance of those services necessary and Operator shall pay all charges therefore within thirty (30) days after receipt of a statement for said additional services. 6. Assignment I Delegation of Fee Payment: Operator may delegate the payment of fees (all or in part) to Operator's terminal services provider. Such assignment or delegation shall be In writing in a form acceptable to the City, and signed by both the Operator and the terminal services provider, and approved by the City. The fact that the City may approve of an assignment of the Operator's obligation to pay user fees does not release the Operator from the duty to pay the user fees provided for in this agreement. In the event the terminal services provider fails to pay assigned fees and charges within 60 days from the original statement date, the statement will be sent to the Operator for payment. 7. Adjustment of Fees: Subject to the limitations set forth in the Section on User Fees, the City reserves the right to change, modify, or otherwise adjust user fees and fee categories from time to time provided that any increase in such fees will be proceeded by prior notice of at least 60 days to Operator. IV. TERM OF AGREEMENT I TERMINATION 1. Term: The term of this agreement shall commence on November 21, 2005, and shall continue for a term of one year from the effective date. This Agreement shall automatically renew thereafter for additional one year terms, unless terminated by either party as follows. 2. Termination: This Agreement may be terminated by either party, without cause, upon thirty (30) days written notice to the other party. Upon the termination of this Agreement, by lapse of time or otherwise, Operator shall, at once, peaceably surrender and deliver to the City, any assigned Airport use areas, Airport identification badges, security access cards, and all fees to which City is entitled hereunder. V. INDEMNITY AND INSURANCE X1/ 1. Indemnification: Operator agrees to indemnify, save, hold harmless, and defend City , its agents and employees, its successors and assigns, individually or collectively, from and against all liability for any claims and actions and all reasonable expenses incidental to the investigation and defense thereof, in any way arising out of or resulting from any acts, omissions or negligence of Operator or any Airline it engages, their agents, employees, licensees, successors and assigns, or those under their control in connection with its use and occupancy of Airport or Airport property; provided, however, that Operator shall not be liable for any injury, damage, or loss occasioned by the gross negligence or willful misconduct of City , its agents or employees. When knowledge of any action is obtained by the Operator or City, they shall give prompt written notice to the other party. Operator shall indemnify, save, hold harmless, and defend City , its agents and employees, its successors and assigns, individually or collectively, from and against all 5 liability for any claims and actions and all fines or expenses incidental to the investigation, defense thereof, in any way arising from or based upon the violation of any federal, state, or municipal laws, statutes, ordinances, or regulations by Operator or Airline's agents, employees, licensees, successors and assigns, or those under their control. Operator shall not be liable for any claims and actions and fines or expenses incidental to the investigation and defense thereof, in any way arising from or based upon violation of any federal, state, or municipal laws, statutes, ordinances, or regulations by City , its agents, employees, licensees, successors and assigns, or those under its control. 2. Insurance: A. Throughout the term of this agreement, Operator shall maintain in full force and effect the forms of insurance specified in Sections B, C, D, E and F, below. Operator shall maintain all insurance hereunder with insurance companies acceptable to the City Each liability insurance policy shall include severability of interest language, specifying that coverage afforded thereunder applies separately to each insured thereunder. Immediately upon execution of this agreement, Operator shall furnish City with evidence of all insurance policies specified in Sections B, C, D, E and F below, naming the City as an additional insured for the General Liability policy with respect to operations and activities of, or on behalf of the named insured performed under contract with the City. The Workers' Compensation and Employer Liability policy will provide a blanket waiver of subrogation in favor of the City. On or before the expiration of any then-current policy of insurance, Operator shall deliver to the City evidence showing that such insurance coverage has been renewed. Within fifteen (15) days after the date of written notice from the insurer of cancellation or reduction in coverage, Operator shall deliver to the City evidence showing reinstatement or other provision for the required insurance. All such evidence of insurance shall be in the form of Certificates of Insurance satisfactory to the City, evidencing coverage as required by this insurance section. Failure to meet the notice requirements herein shall only be considered a material breach if the City's rights are prejudiced by the breach. The Operator is responsible for any additional cost to the City resulting from, or arising out of, a breach which is a non-material breach. A non-material breach does not thereby make the Operator responsible for the entire cost of the claim. ti B. Aircraft liability and comprehensive form general liability insurance, covering bodily injury, property damage, cross-liability, and contractual liability specifying this agreement, with a liability limit of not less than One Hundred Fifty Million Dollars ($150,000,000.00) for airlines operating aircraft with one hundred (100) or more seats, not less than One Hundred Million Dollars ($100,000,000.00) for airlines operating aircraft for between forty (40) and one hundred seats, not less than Fifty Million Dollars ($50,000,000.00) for airlines operating aircraft with thirty-nine (39) or fewer seats, combines single limit per each occurrence for bodily injury and property damage liability in order to assure payment of damage occasioned by Operator's operators or activities into, upon and leaving any part of the Airport. For purposes of this Section. the number of seats is determined based upon the largest aircraft in Operator's fleet. C. If Operator provides hangar service for third parties, hangar keepers liability insurance in an 6 amount adequate to cover any non-owned property in the care, custody and control of Operator on the Airport, by in any event in an amount not less than Five Million Dollars ($5,000,000.00). D. Automobile liability insurance in an amount adequate to cover automobile insurance in, around or at the Airport, but in any event in any amount not less than One Million Dollars ($1,000,000.00) per person and per occurrence. E. Operator shall likewise maintain workers' compensation insurance in accordance with the laws of the State of Texas covering all of its employees who may, from time-to-time, be on Airport premises in such capacity. Operator shall require each of its agents, licensees, subcontractors and suppliers for the leased premises to maintain such workers' compensation insurance covering their employees coming on Airport premises in connection with Operator's operators hereunder. Upon request by the City, Operator shall furnish City with evidence of such workers' compensation insurance in a form acceptable to City. The aforesaid insurance amounts and types of insurance shall be reviewed from time to time by City and may be adjusted by City if City reasonably determines such adjustments are necessary to protect the City's interests VI. ENVIRONMENTAL IMPAIRMENT Operator and Airline will comply with any environmental regulations affecting its operations including furnishing of insurance or other security against environmental impairment risks as required by the City, the State of Texas or the federal government. Neither Operator nor Airline will conduct any maintenance or washing activities outside of an area designated by the City and will take all necessary precautions to capture any spills and to keep the ramps free of discharges of hazardous chemicals or petroleum products. Neither Operator nor Airline shall engage in any activity or conduct, including but not limited to the use, treatment, generation, transportation, processing, handling, disposal, production or storage of hazardous substances, or the use of solvents, lubricants, petroleum, degreasers, or other compounds, in such a manner as to risk contamination of the soil or ground or open waters or the emission of vapors or gases which constitute atmospheric pollutants, which creates or may create an unlawful, dangerous, injurious, or noxious condition or that violates the terms or conditions of the Airports environmental permits. Operator, Airline, and terminal services provider shall become familiar with the requirements of City's spill protection plan and to maintain containment materials in close proximity to Operator's activities. The City shall have the right to monitor Operator's activities, whether in an exclusive use area or in a common use area, for compliance with City's spill prevention control and counter measure plan (SPCC) and storm water pollution prevention plan (SWPPP) . VII. NONDISCRIMINATION \0 Operator, for itself, its personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that (A) no person on the grounds of race, color, sex, age, religion or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of Airport property; and (8) that Operator shall use the Airport property in compliance with all other requirements imposed by, or pursuant to, Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination 7 in Federally-assisted programs of the Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and Transportation, and said Regulations as they may be amended, to the extent that said requirements are applicable, as a matter of law, to Operator. With respect to Airport use, Operator agrees to furnish services on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided, that the Operator may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. VIII. AFFIRMATIVE ACTION With respect to the Airport use, Operator assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall, on the grounds, of race, creed, color, national origin or sex be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E; that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by that Subpart; and that they will require assurance from their sub-organizations that they will undertake an affirmative action program, as required by 14 CFR Part 152, Subpart E, to the same effect, to the extent that said requirements are applicable, as a matter of law, to Airline. IX. OBSERVANCE OF STATUTES, RULES, AND REGULATIONS Operator shall observe and comply with any and all requirements of the constituted public authorities and with all federal, state, or local statutes, ordinances, regulations and standards applicable to Operator for its use of the Airport property, including but not limited to, all FAA rules and regulations, including 14 CFR Part 139 and 49 CFR Part 1540,1542, and 1544, and the rules and regulations or standards promulgated from time to time by the City for the administration of the Airport. X. AIRPORT SECURITY Operator recognizes City's required compliance with Transportation Security Administration and FAA rules and regulations concerning Airport security and Operator agrees to cooperate and comply with such regulations and City's Airport Security Program (ASP) as it relates to its use of the Airport's public facilities. Operator shall take the necessary steps to prevent or deter unauthorized persons from obtaining access to the secured areas of the Airport. To the extent possible, Operator agrees to cooperate with Airport and/or any other air carrier in dealing with aircraft or Operator related emergencies at the Airport. Operator agrees to provide City with its current emergency procedures manual, and, in the event of an emergency to fully cooperate with the City and assist in the implementation of the then current Airport Emergency Plan. ~ XI. OPERATION AS A PUBLIC AIRPORT City covenants and agrees that at all times it will operate and maintain the Airport facilities, as a public airport consistent with and pursuant to the "Sponsor's Assurances" given by City to the United States Government under Federal Airport Act. City shall not be liable to 8 Operator for temporary closures of one or more areas of the Airport, whether due to mechanical breakdowns, maintenance or construction, security, weather, or other reasons beyond the control of City. XII. NATIONAL EMERGENCY During time of war or emergency the United States Government shall have the right to use part or all of the landing area, taxiways and ramp, on either an exclusive or nonexclusive basis, and any provisions of this Agreement to the contrary shall be suspended. XIII. INGRESS AND EGRESS Upon paying the user fees hereunder and performing the covenants of this Agreement, Operator shall have the right of ingress to and egress from the Air Operations Area and passenger terminal facilities for Operator, its officers, employees, agents, servants, customers, vendors, suppliers, patrons, and invites over the runways, taxiways and roadway serving the area. Airport passenger terminal facilities, roadways, ramps, taxiways, and runways shall be used jointly with other tenants of the Airport, and Operator shall not Interfere with the rights and privileges of other persons or firms using said facilities and shall be subject to such weight and type use restrictions as City deems necessary. XIV. CITY RESERVATIONS City, at its sole discretion, reserves the right to further develop or improve the aircraft operating area and other portions of the Airport, including the right to remove or relocate any runway, taxiway, ramp, roadway, utility or structure on the Airport, as it sees fit, and to take any action it considers necessary to protect the aerial approaches of the Airport against obstructions, together with the right to prevent Operator from erecting or permitting to be erected, any buildings or other structure on the Airport which, in the opinion of City would limit the usefulness of the Airport or constitute a hazard to aircraft. XV. ASSIGNMENT Operator shall not assign this Agreement or any part thereof in any manner whatsoever or assign any of the privileges recited herein without the prior written consent of City, which consent shall not be unreasonably withheld, provided, however, in the event of such assignment, Operator shall remain liable to City for the remainder of the term of the agreement to pay to City any portion of the fees provided for herein upon failure of the assignee to pay the same when due. Said assignee shall not assign said Agreement except with the prior written approval of the City and the Operator herein, and any assignment by the Operator shall contain a clause to this effect. XVI. EVENTS OF DEFAULT '9 Eac~ :f~::::::::~: :::~:. ::~::~r aD::: ::::lto:Yc~:::::~ this Agreement. (2) Operator becomes insolvent, makes an assignment for the benefit of creditors, files a 9 petition in bankruptcy or reorganization or a trustee, receiver or liquidator is appointed to take possession of Operator (3) Operator discontinues operations at the Airport without the consent of City. (4) Operator fails to comply with the Airport's Rules and Regulations or the Minimum Standards for Commercial Operators. Operator shall have thirty (30) days following notice from City of any event of default listed above to correct the default. If Operator fails to correct the default with thirty (30) days notice, City has the right to terminate this Agreement immediately. Upon the occurrence of anyone of the following events of default, City may immediately issue written notice of default and termination of the Agreement. (1) The failure by Operator to pay any part of the Rentals, Fees and Charges, PFC's or any other sum due hereunder and the continued failure to pay said amounts in full within ten (10) days of City's written notice of payments past due. Provided, however, if a dispute arises between City and Operator with respect to any obligation or alleged obligation of Operator to make payments to City, payments under protest by Operator of the amount due shall not waive any of Operator's rights to contest the validity or mount of such payment. (2) The failure by Operator to maintain the minimum required insurance coverage as required, provided that City shall have the right to immediately suspend Operator's right to operate at the Airport until Operator has obtained the minimum required insurance coverage (3) If any act occurs, through the fault of neglect of Operator, which operates to deprive the Operator permanently of the rights, power and privileges necessary for the lawful conduct and operation of its business. In the event of termination of this Agreement for an event of default, Operator shall remain liable to City for all fees and charges payable hereunder. City shall have the right to tenninate this Agreement in addition to any other rights or remedies it may have at law or in equity. Any of the following events shall be considered an event of default by City : (1) City fails to keep, perform or observe any material term or condition herein contained and such failure continues for thirty (30) days following written notice from Operator or, if by its nature such default cannot be cured within such thirty (30) day period, City shall not commence to cure or remove such default within said thirty (30) days and to cure or remove the same as promptly as reasonably practicable. (2) City closes the Airport to flights in general for reasons other than weather, acts of God or other reasons beyond its control, and fails to reopen Airport to such flights within sixty (60) days of such closure: Q (3) The Airport is permanently closed by act of any federal, state or local government agency having jurisdiction to do so; (4) Operator is unable to use Airport for a period of at least ninety (90) consecutive days 10 due to any law or any order, rule, or regulation of any appropriate governmental City having jurisdiction over the operations of Airport, or the order of any court of competent Jurisdiction; (5) The United States Government or any authorized agency of the same assumes the operation, control or use of Airport and its facilities in such a manner as to substantially restrict Operator from conducting its operations, and such restriction shall continue for a period of at least sixty (60) consecutive days or more. Upon the occurrence of an event of default by City that continues for thirty (30) days following notice to City from Operator, Operator shall have the right to suspend or terminate this Agreement. XVII. GENERAL PROVISIONS 1. Non-Interference with Operations of Airport: Operator, by accepting this Agreement, expressly agrees for itself, its successors and assigns that it will not make use of Airport premises in any manner which might interfere with the landing and taking off of aircraft at Airport or otherwise constitute a hazard. City shall maintain and keep in repair the Airport's public use landing areas, including taxiways, and aircraft parking apron and shall have the right to direct and control all activities of the Operator and Airline in this regard. 2. Attorney's Fees: In any action brought by either party for the enforcement of the obligations of the other party, the prevailing party shall be entitled to recover its reasonable attorney's fees. 3. Taxes: Operator shall pay any and all tax which may be assessed against the activities, equipment, merchandise, or other personal property belonging to Operator located on the Airport premises, or other permitted portions of the Airport. 4. License Fees and Permits: Operator shall obtain and pay for all licenses, permits, fees or other authorization or charges as required under Federal, State or local laws and regulations insofar as they are necessary to comply with the requirements of this agreement and the privileges extended hereunder 5. Non Exclusive Rights: It is hereby specifically understood and agreed between the parties that nothing herein contained shall be construed as granting or authorizing the granting of exclusive rights to Operator or others, as defined in Section 308 of the Federal Aviation Act of 1958, as amended. 6. Paragraph Headings: The paragraph headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision of the agreement. 7. Interpretations: This agreement shall be interpreted in accordance with the laws of the State of Texas. Should any part of this agreement be adjudicated, venue shall be proper only in Nueces County, Texas. ~/ 8. Non-Waiver: No waiver of any condition or covenant in this instrument contained or of any breach thereof, shall be taken to constitute a waiver of any subsequent condition, covenant or breach. 9. Binding Effect: This agreement. including all of its covenants, terms, provisions, and 11 conditions, shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 10. No Partnership: Nothing contained in this agreement shall be deemed to create the relationship of principal and agent or of partnership or joint venture or any relationship between City and Operator other than the relationship of City and Airline. 11. Remedies: For any breach of any provision hereof, the other party may from time to time, at its option, exercise all rights or remedies which it may have either at law or in equity, and nothing herein contained shall be construed as in any way abridging or waiving any such rights and/or remedies. Consent, waiver, or compromise any of the provisions of this agreement, or as to any breach or default hereunder, shall not constitute or be construed as a waiver of the right to enforce strict interpretation and performance of the conditions and terms hereof at all other times and as to the same and all other matters herein contained. 12. Notices: Whenever any notice is required by this agreement to be made, given or transmitted to the parties hereto, such notice or payment shall be hand delivered, sent by overnight courier, or enclosed in an envelope with sufficient postage attached to insure delivery and deposited in the United States Mail, addressed to: Dave Hamrick Director of Aviation City of Corpus Christi Corpus Christi International Airport 1000 International Drive Corpus Christi, Texas 78406 and notices, consents and approvals to Operator addressed to: Ami Lindenberg Vicepresident and CFO Aeropuerto Internacional de la Ciudad de Mexico, Hangar no, 1, Zona "0". Col. Federal, C.P. 15620, Mexico, City or such place as either party shall, by written directive, designate in the manner herein provided, \P 12 IN WITNESS WHEREOF, the parties have caused this instrument to be executed on their behalf by their duly authorized officers. City of Corpus Christi II . I //1) i i IL / \...-. G~e K. Noe City Manager AITEST -L~:~~- ./lJ-1MANQO OHAPA ~ ',":"' ry SECRET~RY OPERATOR: .f) I l ~ JL fh Z00S.}13uTr: 8Y l>>ff"'~'l._ l'd. St uS ....~______. A." -.....- ~.!~ SfGfftTAiiv r~ Dr. Ruben Smilovitz Irod Tranportes Aeromar, S.A. de C. V. APPROVED AS TO LEGAL FORM THIS :J..- DAY OF IJee , 2005. By: I ( !ohn P. Burke. Jr. \.. Assistant City Attorney For City Attorney 13 EXHIBIT A NON-SIGNATORY RATES & CHARGES August 1, 2005 - July 31, 2006 BAGGAGE AND SECURITY USAGE FEE $ 1.00 (per passenger) {fee applicable when using Signatory Gate's leased hold room and/or bridge by agreement with Signatory Airline) OR FACILITY USE FEE $ 3.69 (per passenger) (fee applicable when using City Gate and/or bridge or Signatory Airline Gate and/or bridge without agreement with Signatory Airline) AND FEDERAL INSPECTION STATION FEE $ 2.50 (per passenger) LANDING FEE (per 1,000 Ibs. of gross certificated weight) $ 1.52 FUEL FLOWAGE FEE $ .0625 (per gallon) PASSENGER FACILITY FEE (PFC) $ 4.50 (per passenger) FEES BELOW APPLICABLE WHEN USING CITY GATE, CITY COUNTER. AND CITY RAMP SPACE (for overnight parking on non-leased ramp APRON OVERNIGHT PARKING FEE $ 125.00 space) AIRLINE TICKET COUNTER USAGE FEE $ 43.80 (per flight) (for parking at city gate AIRLINE GATE PARKING FEE $ 36.40 per turn) \t 14 EXHIBIT B MONTHLY STATISTICAL REPORT MonthN ear Name of Airline Fli9:s~-AirCraft Handled by : Owned assenger ra Ie Common No. of No. of No. of No. of Use Fee Enplaned Enplaned Deplaned Deplaned by ($1 per Passengers Non-Rev. Passengers Non-Rev. ---.- Enplaned PSQr) PassenQers PassenQers ------;. u~__ 1- --------t- I p T ffi I i -- --~ --+-- - - --~---+-- --- --+-~-- I I Landing Data -..--.-..-...---- No of Landings I Gross Landing Total Seats Total Weight per Aircraft Type for the Month i Weight per Available for Aircraft Type I I Aircraft Type Month -~-' ~._._. i I _._---~- I ---..--. I .--."-,----- -+-- _~_..__._ __.______..___"---._...____.__--L-.__ ---.-- Total Seats Available .------_. ----- Total Landing Weight for Month Landing Rate $ Total Due for Landing Fees $ ----," - CarQO FreiQht Mail Enplaned Deplaned Enplaned Deplaned Name of Company Official Signature of Company Official \Jl \I' 15 A TT ACHMENT A Operations, Incentives, and Fees During First Year of Operations 1. Operator agrees to initiate non-stop A TR 42 regularly scheduled airline service, three (3) flights a week, between Corpus Christi, TX and Monterrey, Mexico with an anticipated start date of January 16. 2006. 2 Operator agrees to offer regularly scheduled flights throughout an initial 12 month period. Operator agrees to pay applicable non-signatory airline fees as outlined in Exhibit A, except as detailed in paragraph 7 If Operator leases terminal space to begin ground handling its own flight operations at the Airport, at such time, Operator shall be classified as a "Signatory Airline" requiring agreement to a signatory lease and participation in the compensatory terminal rental/user fee payment schedule and signatory landing fees along with the other Signatory Airlines serving CRP. 3 Operator agrees to contract with one of CRP's Signatory Airlines for ground handling and passenger processing services, thus generating additional revenues for CRP based airlines. In the event that a Signatory Airline is unable, or unwilling, to provide ground handling services, Operator shall be free to contract with any other Airport approved ground handling company. including FBO organizations qualified to perform the work which have an agreement with the City. 4. Non-signatory airline passenger activities have been excluded as a part of the compensatory formula for determining terminal rates and charges for Signatory Airlines. Accordingly, when a Signatory Airline is handling flight operations in their leased premises, baggage and security usage fees, independent of charges assessed by based Signatory Airlines for ground handling services, are charged to non-signatory airlines. It is understood that airlines contracting for ground handling and passenger processing services through an FBO operator who does not have a terminal lease agreement with the City permitting such use, may be obligated to pay the facility use fee currently in effect at the time of the flight operation. 5 Operator agrees to offer a low fare rate structure to the Corpus Christi area traveling public, and to make sales of seats available through regional travel agents, through Operators chosen reservation method, for the convenience of regional travelers. Operator believes that the one way air fare to Monterrey, Mexico from Corpus Christi will be between $133 and $238. 6. For its part, the City agrees to marketing support at a minimum value of $75,000 from the inception of the Operating Agreement through the end of the first twelve months of service. This support will include at a minimum the following: newspaper, radio and television spots, ad work production, in-terminal advertising, direct mail inserts through community partner affiliates and organizations, and airport staff support as liaison to community organizations and marketing partners. The value of any in-kind support shall be determined by the provider of the services and provided to Operator. Expenditure of funds and the media used shall be at the sole discretion of Operator to promote the Corpus Christi to Monterrey, San Miguel de Allende, Reynosa, Poza Rica, and Villahermosa service, including the "Fly Corpus Christi" logo in each promotional piece if available. Any expenditure of funds will be paid directly to the provider of marketing services by the Airport on Operator's behalf for marketing and promotion efforts in accordance with the following: / r~ 16 WJ ~ The first $50,000 in marketing support will be applied prior to the start of service and through the first 6 months of service for which Operator agrees to match $0.50 for every Airport $1.00 expenditure as follows: (1) $25,000 expended prior to the start of service to promote advance bookings. (2) $25,000 expended from the start date of service throughout the first 6 months of flight service to further promote ridership. ., The remaining $25,000 will be used in months 7-12 of flight service for which Operator agrees to match $1.00 for every $1.00 expensed by Airport. 7 In further support for the launch of this new category of passenger service for the Corpus Christi Metropolitan Service Area (MSA) , the City agrees to an abatement of all non- signatory airport fees for the first 350 operations at CRP. An operation is defined as a take-off or a landing of airline's aircraft at CRP. All applicable PFC fees cannot be abated and must be paid to the Airport. 17