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EXHIBIT 10.20
AIRPORT USE AGREEMENT
(Consolidated as of February 1, 1991)
Between
The
CITY OF ATLANTA
and
AIR SOUTH, INC.
At
The Xxxxxxx X. Xxxxxxxxxx
Altanta International Airport
Atlanta, Georgia
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TABLE OF CONTENTS
ARTICLE TITLE PAGE
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I. Definitions 2
II. Term 4
III. City to Maintain and Operate Airport 4
IV. Rights and Privileges 4
V. Right to Purchase Materials and Services 6
VI. Basic Landing Fee 7
VII. Field Improvements Landing Fees 8
VIII. Land Rentals 12
IX. Uniform Application of Landing Fees 14
X. Revised Field Improvements in Basic Landing Fees 15
XI. Rules and Regulations 15
XII. Indemnity 16
XIII. Insurance 16
XIV. Assignment 17
XV. Airport Operation in the Public Interest 18
XVI. Airport Revenues to be used for Airport Purposes 18
XVII. Termination by the City 19
XVIII. Termination by the Airline 20
XIX. Termination Notices 20
XX. Continued Performance not a Waiver 21
XXI. Invalid Provisions 21
XXII. Notices, Consents, and Approvals 22
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TABLE OF CONTENTS continued - Page 2 of 2
ARTICLE TITLE PAGE
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XXIII. Termination of Other Agreements 23
XXIV. Land Use Plan for Existing Airport Approved 23
XXV. Audits by Airlines 23
XXVI. Security Violations 24
Appendix I Authorizing Resolution (Reference page 2)
Schedule I 1967-72 Airfield Improvements Program
W/Exhibits A, B, and C (Reference page 8)
Schedule II Revised Field Improvements (FY-66 Program)
(Reference page 15)
Addendum To The
Airport Use Agreement Field Improvement Landing Fees
(Reference page 8 & 10)
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AIRPORT USE AGREEMENT
GEORGIA. . . . . .XXXXXX COUNTY
THIS AGREEMENT, made and entered into on the _____ day of
_______________, 1994, by and between the CITY OF ATLANTA, a municipal
corporation of said state and county, hereinafter referred to as the "City,"
and AIR SOUTH, INC., a corporation organized and existing under and by virtue
of the laws of the State of Illinois, hereinafter referred to as the "Airline,"
W I T N E S S E T H T H A T:
WHEREAS, the City owns and operates an airport known as the Xxxxxxx X.
Xxxxxxxxxx Atlanta International Airport ("Airport"), located partially in
Xxxxxx County and partially in Xxxxxxx County, Georgia; and
WHEREAS, the Airline is engaged in the business of air transportation
with respect to persons, property, and mail; and
WHEREAS, the Airline desires to conduct its business at the Airport
under an Airport Use Agreement identical to that Agreement now in effect
between the City and the existing Atlanta Airlines dated February 3, 1967, as
amended through Amendment No. 6 dated April 1, 1982, as termed the
"Consolidated Airport Use Agreement", and further amended by Amendment No. 1 to
the Consolidated Airport Use Agreement; and
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WHEREAS, this Agreement has been made identical to the said existing
Airport Use Agreements by incorporating into one consolidated document the said
original Airport Use Agreement dated February 3, 1967, and all six amendments
thereto, and Amendment No. 1 to the Consolidated Airport Use Agreement; and
WHEREAS, the execution of this Agreement on the part of the City has
been authorized by the Council of the City by resolution adopted
_______________ and approved _______________________, a copy of same being
attached hereto as Appendix I and made a part hereof by reference.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises and mutual
covenants and agreements herein contained, the parties hereto do hereby agree,
each for itself and its successors and assigns, as follows:
I. DEFINITIONS
The phrases set forth below, for the purposes of this Agreement, shall
have the following meanings:
Basic Landing Fee. The basic charge made by the City against each of
the Atlanta Airlines as a landing fee, based upon the rate of Sixteen Cents
($0.16) per 1,000 pounds of the Federal Aviation
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Administration Maximum Certificated Gross Landing Weight of the aircraft at the
Airport.
Initial Field Improvements Landing Fee. The pro-rata annual charge
made by the City against each of the Atlanta Airlines as a Field Improvements
Landing Fee, designed to cover the City's costs of the 1967-72 major airfield
improvements program, approved by a Majority In Interest of the Atlanta
Airlines, and pro-rated among the Atlanta Airlines on the basis of their
respective Basic Landing Fees.
Additional Field Improvements Landing Fee. The pro-rata annual charge
made by the City against each of the Atlanta Airlines as a Field Improvements
Landing Fee, designed to cover the City' costs of all major airfield
improvements, other than the 1967-72 major airfield improvements program,
approved by a majority in interest of the Atlanta Airlines, and pro-rated among
the Atlanta Airlines on the basis of their respective Basic Landing Fees.
Atlanta Airlines. All of the airlines serving the Atlanta Airport now
or in the future who hold certificates from the Civil aeronautics Board, or its
successor, and who have entered into an Airport Use Agreement to transport
passengers, mail, and property to and from the Airport on a regularly scheduled
basis.
Majority In Interest of the Atlanta Airlines. Any four or more of the
Atlanta Airlines which together paid at least ninety percent (90%) of the total
Basic Landing Fees during the preceding twelve (12) month period.
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II. TERM
The rights and privileges granted under this instrument shall be
effective as of the 15th day of August, 1994, and ending on the 21st day of
September, 2010.
III. CITY TO MAINTAIN AND OPERATE AIRPORT
The City shall maintain and keep in good repair the Airport, its
appurtenances, facilities, and services and shall maintain and operate the
Airport in all respects in a manner at least equal to generally accepted
standards for other airports in the United States of similar size and
character.
IV. RIGHTS AND PRIVILEGES
The Airline shall have the right in common with others to use the
Airport and appurtenances, together with all facilities, improvements,
equipment, and services of the Airport, not exclusively leased to others, and
the right of free ingress and egress to, from, and over said Airport, and any
and all roads which the City controls leading thereto and therefrom, which
rights shall be for the benefit of the Airline, its employees, passengers,
suppliers of materials, furnishers of services, patrons, and invitees.
In its use of the Airport, the Airline and its employees may use, in
common with other licensees and lessees at the Airport and their employees, any
vehicular parking spaces which may be designated by Airport management for the
use of such persons; and the
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Airline shall have the right, in any premises leased by it from the City, or
otherwise available for such purposes, in common with others to locate,
maintain, and operate full aircraft servicing facilities, storage space for
aircraft, equipment, machinery, and any and all other materials necessary for
the conduct of its business, repair shops for the repairing and servicing of
its aircraft, engines, run-up stands, instruments, propellers, accessories, and
other machinery, tools, automobiles, trucks, tractors, and any and all other
facilities and equipment as may be needed or used by the Airline in the conduct
of its business, a general office, and any other facilities necessary or
convenient to the operation of an air transport business.
The Airline shall have the right to exchange, dispose of and sell third
parties such of its equipment, machinery, supplies, parts, and any other
materials held or used for purposes of the conduct of its business, when the
same shall not be needed in the operation of that business; provided that such
exchange, sale, or disposition shall not be construed as authorizing the
conduct of a separate business by the Airline. In addition to the servicing of
its own aircraft, the Airline shall have the right to service, handle, or
maintain the aircraft of other regularly scheduled air carriers, when such
servicing, handling, or maintenance shall be performed pursuant to an agreement
between the Airline and such other carrier for a mutual exchange of such
services; but this provision shall not be construed to grant to the Airline any
right or privilege to conduct an independent business in the nature of a fixed
base operator. Further, the Airline shall have the right, consistent with the
public safety, to train its own personnel,
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personnel of other regularly scheduled air carriers, and personnel of the
United States Government.
The privileges granted in the preceding paragraphs are subject to and
contingent upon the existence of adequate and suitable space within the
confines of the Airport, which now or in the future may be available for any
given use. For this purpose, the City shall not maintain an unreasonable or
arbitrary position as to the availability of space for the uses requested.
V. RIGHT TO PURCHASE MATERIALS AND SERVICES
Materials or services may be purchased or otherwise obtained by the
Airline from any person, firm, corporation, or other legal entity, of its
choice, and no charge, fee, or toll, and no unreasonable or discriminatory
limitations or restrictions shall be imposed by the City, directly or
indirectly, against the Airline, its suppliers of materials or furnishers of
services (except business licenses generally imposed by the City for doing
business in the City and charges imposed for direct services furnished by way
of water, sewer, and garbage), for furnishing personal property to the Airline
or for selling personal property or services to the Airline, for purchasing,
using, consuming, or storing personal property for the Airline or for selling
personal property to, or withdrawing, handling, transporting, picking up,
delivering, loading or unloading air freight or any cargo or personal property
for or to the Airline.
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VI. BASIC LANDING FEE
At the inception of this Agreement, the Airline shall pay to the City
each month a Basic Landing Fee computed at the rate of Sixteen Cents ($0.16)
per 1,000 pounds of the Federal Aviation Administration (or its successor
agency) Maximum Certificated Gross Landing Weight of each aircraft scheduled to
land at the Airport during such month as shown in the time tables of the
Airline on file with the Civil Aeronautics Board (or its successor agency) as
of the first day of such month. Cancellations, extra sections, and any other
landings shall not be taken into account when computing the Basic Landing Fee.
In any event, for the purposes of the Basic Landing Fee, the minimum
charge per aircraft landing shall be Six and No/100ths Dollars ($6.00).
The Basic Landing Fee shall be due and payable on or before the 15th
day of the month for which it is due, or within ten (10) days following the
billing by the City, whichever may be later. The Airline will furnish to the
City appropriate data necessary to compute the Basic Landing Fee for the month.
The Basic Landing Fee is now being renegotiated with the Atlanta
Airlines and is subject to change during the remaining period of this
Agreement. The Airline hereby agrees to pay any Basic Landing Fee resulting
from such negotiation beginning on receipt of notice from the City's Aviation
General Manager.
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VII. FIELD IMPROVEMENTS LANDING FEES
With respect to the major airfield improvements which the City
undertook with the approval of a Majority In Interest of the Atlanta Airlines
and substantially completed under the 1967-72 Airfield Improvements Program (a
copy of which is attached hereto as Schedule I), as amended, the City issued
Airport Revenue Bonds and established a Field Improvements Landing Fee which,
from the effective date of said Amendment No. 6, has been designated and shall
continue to be designated hereunder as the annual Initial Field Improvements
Landing Fee. Such annual Initial Field Improvements Landing Fee shall be
determined at all times by use of the following procedure:
(a) Multiply the City's costs of said improvements by the average amount
required for annual principal and interest payments on the said Airport Revenue
Bonds issued in connection with the 1967-72 Airfield Improvements Program; and
(b) Divide the product obtained in (a) above by the principal amount of the
bond issue referred to in (a) above; and
(c) Multiply the quotient obtained in (b) above by one and one-third (1&1/3)
representing the debt service coverage required; and
(d) At the inception of this Agreement, Initial Field Improvement Landing Fees
shall be paid in accordance with the "Addendum To The Airport Use Agreement"
attached hereto and made a part hereof by reference; thereafter, the City shall
allocate annually to the Airline a portion of the product obtained in (c) above
based upon the ratio of the Basic Landing Fees paid by the Airline during the
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twelve (12) month period immediately preceding May 1 of each year to the total
Basic Landing Fees paid by all of the Atlanta Airlines during that period. The
Airline's proportionate share of said annual Initial Field Improvements Landing
Fee shall be paid in equal monthly installments, in advance, during the period
that the City's Airport Revenue Bonds issued to finance the 1967-72 major
airfield improvements remain outstanding, subject to any credits provided for
in said Agreement as amended.
With respect to other major airfield improvements (including
acquisition of land and site preparation thereof for a second air carrier
airport for the Atlanta area), for which annual Additional Field Improvements
Landing Fees are required, the City shall submit to the Atlanta Airlines a
summary of each proposed airfield improvement and justification therefor and, if
a Majority-In-Interest of the Atlanta Airlines approve the proposed
improvement, the City will then undertake to diligently accomplish said
improvement in accordance with said proposal and all terms, conditions, and
provisions attendant thereto. The Airline agrees to pay its proportionate
share of the City's costs of such approved improvement in the form of an annual
Additional Field Improvements Landing Fee. Such annual Additional Field
Improvements Landing Fee shall be determined by use of the following procedure:
(a) Determine the City's net cost of said improvement(s), including
architectural, engineering and inspection fees; amounts paid for materials,
equipment, labor and services; insurance and performance bonds; fees and
expenses associated with the issuance of Airport Revenue Bonds; and any
interest on such bonds which has been capitalized during the period of design
and construction of such
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improvement(s); less credits for interest earned or accrued on the various bond
funds utilized to finance said improvement(s) between the date of delivery of
the bond proceeds and the date of beneficial use of the improvement(s) and any
capitalized interest on the bonds issued to finance said improvement(s) on hand
as of said date; and
(b) The City's said net cost of such improvement(s) shall be recovered by
the City by multiplying such cost by the factor representing (i) the City's
actual average annual interest cost on such bonds and (ii) the repayment of
principal and interest on a level debt basis with monthly payments in advance
over the period commencing as of the date of beneficial use of the
improvement(s) or on the date that the City is required to begin sinking fund
principal payments, whichever is earlier, and ending as of September 20, 2010;
and
(c) Multiply the product obtained in (b) above by 1.20 (120%) representing
the debt service coverage required; and (d) At the inception of this Agreement,
Additional Field Improvement Landing Fees, shall be paid in accordance with the
"Addendum To The Airport Use Agreement" attached hereto and made a part hereof
by reference; thereafter, the City shall allocate, annually, to the Airline a
portion of the product obtained in (c) above based upon the ratio of the Basic
Landing Fees paid by the Airline during the twelve (12) month period
immediately preceding May 1 of each year to the total Basic Landing Fees paid
by all of the Atlanta Airlines during that period.
Said annual Additional Field Improvements Landing Fees shall be paid in
equal monthly installments, in advance, commencing on the date such
improvements are ready for beneficial use or on the date
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on which the City is required to begin sinking fund principal payments,
whichever is earlier, and the City shall give written notice of such date to
the Airline.
The City covenants and agrees to use its best efforts to obtain all
possible financial aid from any and all federal and state sources from which
such aid might be or become available to assist in the financing of
improvements, including land acquisition, provided for hereunder. All
financial aid received by the City, which is based upon and attributable to all
or part of the projects provided for hereunder, shall be held in trust for the
Atlanta Airlines by the City of Atlanta. The Commissioner of Finance, acting
on behalf of the City of Atlanta, shall be authorized to make disbursements in
whole or in part, as requested by the Airline, from the Airline's pro-rata
share of funds held in escrow for the Atlanta Airlines. Disbursement shall be
made by the Commissioner of Finance not later than twenty-one (21) days after
receiving an official written request from the Airline, specifying any of the
following disbursements:
1. Credit toward the payment of Field Improvements Landing Fees;
2. Credit toward construction costs of any project at Xxxxxxxxxx Atlanta
International Airport; or
3. Direct return to the Airline.
Funds held in escrow shall be pro-rated among the Atlanta Airlines then
serving the Airport in the same pro-ration upon which Additional Field
Improvements Landing Fees are paid in the year in which said aid is received.
Interest shall be computed, as of the end of the last month prior to receiving
said written request, by multiplying the total interest yield, expressed as a
percent, by the
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Airline's pro-rated share of escrowed funds.
Each additional airfield improvement program agreed to hereunder will
include an agreement as to Minority and Female Business Enterprise
participation in such airfield improvement program.
The Field Improvements Landing Fees payable by the Atlanta Airlines shall
be subject to such credits as may be allowable from time to time under the
provisions of this Agreement.
VIII. LAND RENTALS
With respect to land rentals of properties acquired, in the cost of which
the Atlanta Airlines participate as contemplated in Article VII of this
Agreement, where any such property is leased to one of the Atlanta Airlines,
the annual land rental shall be fixed at 8% of the City's average net direct
cost per acre of the property (as that term is hereinafter defined). The term
"the property" as used in this paragraph shall mean all property acquired under
the Airfield Improvements Program which is current on the execution date of the
lease (e.g., for purposes of a lease executed during 1971, reference would be
made to properties acquired under the 1967-72 Airfield Improvements Program).
Such average net direct cost shall be determined on the basis of (a) the price
of the fee simple title, (b) plus the direct expense of acquisition, (c) plus
or minus the cost or credit resulting from the razing of any structures on the
property, (d) less Federal or State Grants, all as finally determined. Pending
such final determination, the land rental shall be an estimated figure
determined by the City upon a reasonable basis. At such time as the said
average net direct cost becomes known, final calculation of the land rental
shall be made; and an immediate
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adjustment between the parties shall be effected so as to accomplish payment of
the proper rental.
Should the City lease any such property to a party other than one of the
Atlanta Airlines, the annual land rental charged shall be not less than the
amount which would be charged to an Atlanta Airline.
The provisions of this Article, with respect to the rental rates to be
charged, shall not be applicable to those circumstances in which areas may be
leased for a period of less than one year, provided there is no option to renew
such lease. It is contemplated that from time to time some party may wish to
have the use of a particular area for a short period and be unwilling to pay
for that short period the minimum rate specified above.
Any and all net rentals received by the City from such properties shall be
credited against the Field Improvements Landing Fees payable by the Atlanta
Airlines under the provisions of Article VII of this Agreement. The total
credit thus developed shall be apportioned among the respective Atlanta
Airlines in the same proportional as the ratio of the Basic Landing Fees paid
by each during the preceding twelve-month period bears to the total of all
Basis Landing Fees paid by the Atlanta Airlines during such period. It is
expressly agreed that all credits based on land rentals of properties acquired
under the 1967-72 Airfield Improvements Program, as amended, shall be applied
against Field Improvements Program Landing Fees during the period that the
City's Airport Revenue Bonds issued to finance the 1967-72 Airfield
Improvements Program remain outstanding or April 30, 1999, whichever is later;
provided, however, that in no event shall such credits for any year exceed the
amount
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of the Field Improvements Landing Fees due for such year.
IX. UNIFORM APPLICATION OF LANDING FEES
The City covenants that, during the term of this Agreement, and to the
extent that it is legally empowered to assess such charges, it will charge
landing fees with respect to all aircraft landing, whether such be scheduled or
non-scheduled, other than those covered by this Agreement and those covered by
similar agreements with other Atlanta Airlines, on a basis similar to that
provided in Article VI of this Agreement, i.e., at a rate not less than Sixteen
Cents ($0.16) per 1,000 pounds of landing weight of the aircraft, which landing
fee rate shall be increased so as to include the rates applicable to such
Initial and Additional Field Improvements Landing Fees as may be payable by the
Atlanta Airlines pursuant to Article VII hereof, and which rate also may be
increased by the City, with a minimum charge in each instance to be set by the
City in an amount of at least Six and no/100ths Dollars ($6.00). The
provisions of this Article shall not be applicable to aircraft operated by the
United States Government or any subdivision thereof.
That portion of the landing fees collected by the City pursuant to this
Article IX attributable to the Initial or Additional Field Improvements Landing
fee rates shall be credited against the Initial and Additional Field
Improvements Landing Fees payable by the Atlanta Airlines under the provisions
of Article VII of this Agreement. The total credit thus developed shall be
apportioned among the Atlanta Airlines in the same proportion that the ratio of
the total Basic Landing Fees paid by each during the preceding twelve-month
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period bears to the total of all Basic Landing Fees paid by all of the Atlanta
Airlines during such period.
X. REVISED FIELD IMPROVEMENTS IN BASIC LANDING FEES
The Atlanta Airlines have approved thirteen (13) specific projects as
described in Schedule II which is attached hereto and made a part hereof, same
being entitled "Revised Field Improvements (Including FY-66 Program)" and
showing the City's total cost of those improvements to be $7,424,480.00. The
Basic Landing Fees set forth in this Agreement include the Airline's
participation in the City's cost of those improvements and no additional
landing fees are to be charged by reason thereof.
XI. RULES AND REGULATIONS
The City may adopt and enforce reasonable rules and regulations, which
the Airline agrees to observe and obey, with respect to the use of the Airport
and appurtenances, together with all facilities, improvements, equipment, and
services of the Airport, not exclusively leased to others, for the purpose of
providing for the safety of those using the same; and the City may adopt
reasonable rules and regulations, which the Airline agrees to observe and obey,
with respect to the use of the other areas and facilities of the Airport, in
the interest of health, safety, sanitation, good order, and preservation of the
same; provided that such rules and regulations shall be consistent with safety
and with rules, regulations, and orders of the Federal Aviation Administration
with respect to
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aircraft operations at the Airport; and provided, further, that such rules and
regulations shall not be inconsistent with the provisions of this Agreement, or
other agreements with the Airline at the Airport, or the procedures prescribed
or approved from time to time by the Federal Aviation Administration with
respect to the operation of the Airline's aircraft at the Airport.
XII. INDEMNITY
The Airline shall indemnify and hold harmless the City against any and
all claims of every kind or character growing out of the negligent acts or
omissions of the Airline, its agents, or employees, in the exercise of the
rights and privileges granted to it hereby, whether such claims shall arise
from or be based upon injuries to persons (including death), or damages to
property; provided that the City shall give the Airline prompt notice of any
claim, damage or loss, or action in respect thereto, and an opportunity to
investigate and defend against any such claim or action.
XIII. INSURANCE
The Airline shall carry public liability insurance with responsible
insurance underwriters, having duly designated agent in agents in Georgia upon
whom process in any suit or action or other proceedings in courts of the State
of Georgia or of the United States may be served, insuring the Airline against
liability for injuries to persons (including wrongful death) and damages to
property caused by the Airline's negligent acts or omissions in the exercise
of the rights and privileges granted hereby, or otherwise
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caused by the negligence of the Airline in or about the said runways and
taxiways, the policy limits thereof to be in the amount of not less than Two
Hundred Thousand Dollars ($200,000.00) for any one person, and in the amount of
not less than One Million Dollars ($1,000,000.00) for any one accident
involving injury (including wrongful death) to more that one person, and in the
amount of not less than Two Hundred Thousand Dollars ($200,000.00) for property
damage resulting from any one accident. The Airline shall furnish the City
with certificates of insurance issued by the insurance underwriters evidencing
the existence of valid policies of insurance as aforesaid. Such certificates
shall state that the coverage will not be amended so as to decrease the
protection below the limits specified therein or be subject to cancellation
without adequate notice to the City.
XIV. ASSIGNMENT
The Airline shall not assign or transfer this Agreement or any right or
interest granted to it by this Agreement without the consent of the City (which
consent may be withheld in the sole discretion of the City); provided, however,
that the Airline may assign and transfer this Agreement, without such consent,
in its entirety to a parent corporation, a subsidiary corporation, or a
successor corporation. As used in this Article XIV "parent corporation" means
a corporation holding 50% or more of the Airline's outstanding voting stock,
"subsidiary corporation" means a corporation of whose outstanding voting stock
the Airline owns 50% or more, and "successor corporation" means a corporation
acquiring substantially
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all of the Airline's assets.
XV. AIRPORT OPERATION IN THE PUBLIC INTEREST
In the exercise and performance of its powers and duties under the
Uniform Airports Law, the City recognizes and declares that the Airport is
being operated and maintained in the public interest, for the public
convenience and necessity, and hereby declares its intention to encourage and
develop air transportation for the citizens of Georgia and in particular for
the citizens of the vicinity of Atlanta, and to that end pledges the
maintenance, use, and operation of the Airport for public, governmental, and
municipal purposes.
XVI. AIRPORT REVENUES TO BE USED FOR AIRPORT PURPOSES
The City agrees that the Fifty Percent (50%) of net Airport revenues
formerly allowed by ordinances to be used for any general City corporate
purpose will during the term hereof be used for the following purposes only:
(a) To pay the principal of and the interest on City of Atlanta
Special Purpose Airport Revenue Bonds dated October 1, 1958, to the extent
permitted or required by the ordinance adopted September 9, 1958, to authorize
their issuance.
(b) To pay the cost of extensions and improvements to or equipment for
airport facilities owned by the City of Atlanta, including special purpose
facilities and facilities to be acquired or constructed at a new or additional
airport or to create a fund for that purpose.
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(c) to pay the principal of and the interest on or to retire any
general obligation bonds, revenue certificates, revenue bonds, or other
obligations issued for airport purposes.
XVII. TERMINATION BY THE CITY
The City, in addition to any right of termination or any other right
herein granted to it or accruing to it by operation of law, may declare this
Agreement terminated in its entirety upon the happening of any one or more of
the following events and may exercise all rights of entry and re-entry upon all
of the premises exclusively leased to the Airline:
1. If the rentals, fees, charges, or other money payments which the
Airline hereto agrees to pay, or any part thereof, shall be unpaid on the date
the same shall become due; or
2. If the Airline shall file a voluntary petition in bankruptcy, or
make a general assignment for the benefit of creditors; or
3. If any act occurs which operates to deprive the Airline
permanently of the rights, power, and privileges necessary for the proper
conduct and operation of its business; or
4. If the Airline abandons service to the Airport for sixty (60)
days or more, except when such abandonment and cessation is due to fire,
earthquake, strike, governmental action, default of the City, or any other cause
beyond its control; or
5. If any of the covenants or agreements contained herein shall be
breached by the Airline.
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XVIII. TERMINATION BY THE AIRLINE
The Airline, in addition to any right of termination or any other right
herein granted to the Airline or accruing to it by operation of law, may
terminate this Agreement in its entirety upon or after the happening of any one
of more of the following events:
1. If any act occurs which operates to deprive the Airline of the
rights, power, and privileges necessary for the proper conduct and operation of
its business; or
2. The breach by the City of any of the covenants or agreements
herein contained; or
3. The continued failure or refusal by the City, after thirty (30)
days prior written notice to the city, to maintain and operate in a reasonably
satisfactory manner the public aircraft facilities at the Airport; or
4. The continued operation at the Airport, after thirty (30) days
prior written notice to the City, of types of air traffic other than commercial
airline traffic to the extent that use of the Airport by commercial airline
traffic is substantially impaired or restricted; or
5. If the Airline abandons service to the Airport for sixty (60) days
or more.
XIX. TERMINATION NOTICES
Notwithstanding anything to the contrary in this Agreement contained, no
termination declared by either party shall by effective unless and until not
less that thirty (30) days shall have
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elapsed after written notice to the other specifying the date upon which such
termination shall take effect and the cause for which it is being terminated
(and, if such termination is by reason of a default under this Agreement,
specifying such default with reasonable certitude); and no such termination
shall be effective if such cause shall have been cured or obviated during such
thirty (30) day period; or, in the event that such cause is a default under this
Agreement which by its nature cannot be cured within such thirty (30) day
period, such termination shall not be effective if the party at fault commences
to correct such default within said thirty (30) day period and corrects the same
as promptly as reasonably practicable.
XX. CONTINUED PERFORMANCE NOT A WAIVER
Continued performance by either party hereto pursuant to the terms of
this Agreement after a default of any of the terms, covenants, or conditions
herein contained to be performed, kept, or observed by the other party hereto
shall not be deemed a waiver of any right to cancel this Agreement for such
default, and no waiver of any such default shall be construed or act as a
waiver of any subsequent default.
XXI. INVALID PROVISIONS
It is understood and agreed by and between the Airline and the City that
if any covenant, condition, or provision contained in this
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Agreement is held to be invalid by any court of competent jurisdiction, or
otherwise appears to the Airline and to the City to be invalid, such invalidity
shall not affect the validity of any other such covenant, condition, or
provision herein contained, provided that the invalidity of any such covenant,
condition, or provision does not materially prejudice either the City or the
Airline in their respective rights and obligations contained in the remaining
valid covenants, conditions, or provisions of this Agreement.
XXII. NOTICES, CONSENTS, AND APPROVALS
All notices, consents, and approvals required or authorized by this
Agreement to be given by or on behalf of either party to the other shall be in
writing and signed by a duly authorized representative of the party by or on
whose behalf they are given.
Notices to the City shall be addressed to it at the Office of the
Aviation General Manager at the Airport and delivered either by hand or by
registered or certified mail, postage prepaid, or at such other place as the
City may hereafter designate by notice to the Airline in writing.
Notices to the Airline shall be addressed to it and delivered at the
following address:
Air South, Inc.
0000 Xx. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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either by hand or registered or certified mail, postage prepaid, or at such
other office in the continental United States as it may hereafter designate by
notice to the City in writing.
XXIII. TERMINATION OF OTHER AGREEMENTS
Upon the effective date of this Agreement, any and all other agreements
heretofore entered into by and between the City and the Airline, insofar as the
same relate to the use of the runways and taxiways at the Airport and the tolls
and landing fees to be paid therefor, shall stand terminated and cancelled.
XXIV. LAND USE PLAN FOR EXISTING AIRPORT APPROVED
The parties hereto do hereby agree in principle to the Airport Land Use
Plan as presented by Drawing No. 00000-000-000 of the Atlanta Airport Engineers,
dated July 1978, a copy of which is on file in the office of the City's Aviation
General Manager. Said plan is further acknowledged to be the guide for the City
and the Atlanta Airlines in the proposed development of the existing Airport.
XXV. AUDITS BY AIRLINES
The city shall keep complete and adequate books and records concerning
all matters which are the subject of this Agreement, and
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the Atlanta Airline shall be entitled to audit same, at their expense, and
shall have access during normal working hours to all such books and records
(including, without limitation, accounts, ledgers, and schedules) as are related
to the subject matter of this Agreement (including, without limitation, any
Field Improvement project costs, land rentals, landing fees, grants, fees, and
credits).
XXVI. SECURITY VIOLATIONS
In the event that any violations of Federal regulations, including but
not limited to unauthorized runway crossings, are committed by the Airline's
employees, agents, guests, invitees, or any other person who gains access to
restricted areas of the Airport by means of the Airline's Leased Premises on the
Airport, which violations subject the City to fines imposed by the Federal
Aviation Administration pursuant to such regulations, then in such event Airline
hereby covenants and agrees to reimburse City fully for such fines promptly upon
receipt of demand therefor from the City.
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IN WITNESS WHEREOF, the parties, acting by and through their duly
constituted officials and officers, have caused their respective seals to be
hereunto affixed on the day and year first above written.
ATTEST: CITY OF ATLANTA (SEAL)
by
---------------------- --------------------------------
Municipal Clerk Mayor
ATTEST: AIR SOUTH, INC. (SEAL)
/s/ by /s/
---------------------- --------------------------------
Assistant Secretary President
APPROVED AS TO INTENT:
-------------------------
Aviation General Manager
APPROVED AS TO FROM: RECOMMENDED:
------------------------- --------------------------
Assistant City Attorney Chief Operating Officer
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A RESOLUTION
BY TRANSPORTATION AND FINANCE COMMITTEES
A RESOLUTION AUTHORIZING THE MAYOR TO
EXECUTE AN AIRPORT USE AGREEMENT WITH
AIR SOUTH, INC., COVERING THE USE OF
COMMON AREAS AND FACILITIES AT THE
XXXXXXXXXX ATLANTA INTERNATIONAL AIRPORT.
WHEREAS, Air South, Inc., is planning to provide regularly scheduled
airline service from Atlanta to Columbia, SC, Miami, FL, and St. Petersburg, FL;
and
WHEREAS, Air South, Inc., desires to enter into an Airport Use Agreement
substantially identical to the Use Agreements between the City and other
domestic carriers serving the Airport, as heretofore amended; and
WHEREAS, it is in the best interest of the Airport and the City to enter
into an Airport Use Agreement with Air South, Inc., as hereinafter set forth.
NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ATLANTA that
the Mayor be and he hereby is authorized to execute on behalf of the City of
Atlanta an Airport Use Agreement with Air South, Inc., which shall contain the
following terms, conditions, and provisions:
1) a term effective as of August 15, 1994 and ending September 21,
2010, so as to expire on the same date as all other Airport Use
Agreements at Xxxxxxxxxx Atlanta International Airport; and
2) containing substantially the same terms, conditions, and
provisions set forth in an Airport Use Agreement identical to that
Agreement now in effect between the City and the existing Atlanta
Airlines dated February 3, 1967, and amended six times,
heretofore, the last being Amendment No. 6 dated April 1, 1982, as
termed the "Consolidated Airport Use Agreement", and further
amended by Amendment No. 1 to the Consolidated Airport Use
Agreement; and
3) such other terms, conditions, and provisions as may be required by
City ordinances or Federal regulations or as are customarily
included in similar agreements at the Airport.
BE IT FURTHER RESOLVED that the City Attorney be and he hereby is
directed to prepare said Use Agreement for execution by the Mayor, with same to
be approved as to form by the City Attorney.
APPENDIX I
30
BE IT FINALLY RESOLVED that said Use Agreement shall not become binding
upon the City of Atlanta, and the City of Atlanta shall incur no obligation nor
liability thereunder until the same has been signed by the Mayor and delivered
to Air South, Inc.
APPENDIX I
31
SCHEDULE I
1967-72
AIRFIELD IMPROVEMENTS PROGRAM
Estimated
Item No. Description and Comments Cost
-------- ------------------------ ----------
1 Land Acquisition - acquire approximately
1,240 acres of land as per the attached
Drawing No. 68066-024 of the Atlanta
Airport Engineers dated March 5, 1969,
titled "Land Acquisition" which is
attached as Exhibit A and made a part
hereof by reference. $47,815,000
2 Accomplish site preparation including the
clearing, grubbing, grading, drainage,
engineering, and other site preparation in
the areas set forth on the attached Drawing
No. 68066-027 of the Atlanta Airport
Engineers dated March 5, 1969, titled
"Site Preparation" which is attached as
Exhibit B and made a part hereof by
reference. 23,375,000
0 Xxxxxxxxx xxxxxxxx, including engineering,
substantially between the points hereinafter
set forth as described on the attached drawing
No. 68066-026 of the Atlanta Airport
Engineers dated March 5, 1969, titled "Airport
Service Roadways" which is attached hereto as
Exhibit C and made a part hereof by reference:
From Point B south and west to Point H
From Point S west to Point T
From Point T north and east to Point R
From Point A east and south to Point B
From Point B west to Point D
From Point H south and west to Point S 6,090,000
4 General architectural and engineering fees
which are incurred by the City as necessary
to determine the maximum feasibility expansion
capabilities of the existing terminal and
terminal-related facilities, which are general
in nature and are not specifically identifiable
to or applicable to improvements or facilities
that will directly benefit any fewer than all of
the Atlanta Airlines.
Schedule I
Page 1 of 2
32
Also, included in this item are the General
Architectural and Engineering fees which are
necessary for coordination of the projects set
forth above and for Engineering Conferences
with the City, the Airlines and the FAA for
the accomplishment of these projects. 782,000
5 Reconstruction, including engineering, of
existing east-west runway 9L-27R approximately
8,000 feet in length and necessary portions of
parallel taxiway located 400 feet from center
line of runway to center line of taxiway and
parallel to runway 9L-27R. This approval
specifically includes paving, lighting,
underdrains, marking, and any other construction
required to make the runway and associated
taxiway an integral part of the runway and
taxiway system. $ 3,700,000
-----------
TOTAL ESTIMATED COST OF ITEMS 1 - 5 $81,762,000
ESTIMATED UNDERRUN $ 528,000 (1)
-----------
TOTAL ESTIMATED COST OF COMPLETION $82,290,000 (2)
===========
(1) Majority In Interest of the Atlanta Airlines shall have the right to
expend such funds, if any, for top priority projects at the Airport.
(2) Without approval of a Majority In Interest of the Atlanta Airlines, the
City shall have the right to curtail and revise any or all of the above
items so as to ensure that the total cost of this program does not
exceed $82,290,000.
Schedule I
Page 2 of 2
33
EXHIBIT A
(MAP)
LAND ACQUISITION
ATLANTA AIRPORT
34
EXHIBIT B
(MAP)
SITE PREPARATION
ATLANTA AIRPORT
35
EXHIBIT C
(MAP)
AIRPORT SERVICE ROADWAYS
ATLANTA AIRPORT
36
SCHEDULE II
REVISED FIELD IMPROVEMENTS
(INCLUDING FY-96 PROGRAM)
Item No. Item Total Cost City's Part
-------- -------------------------------- ---------- -----------
1 Acquiring additional land $1,800,000 $900,000
and property interests to
Runway 9L-27R
2 Acquiring additional land 1,747,900 873,950
and property interests for
approach to Runway 9R-27L
3 Installing I-H lighting system 110,000 32,830
Runway 15-33. Installing
taxiway lights on portions of
Runways 15-33 and 3-21
4 Construct additional aircraft
parking apron 573,000 286,500
5 Fire truck access road 12,000 6,000
6 Construct additional taxiway
from Runway 3 to 9-R 70,000 35,000
7 Construct new fire station on
south side of Airport
Construction cost 142,000 71,000
Equipment cost 120,000 120,000
8 Acquire additional property 2,000,000 1,000,000
interests for Runway 9-R
approach zone
9 Acquire additional property 1,500,000 750,000
interests for sight line from
tower to Runway 9-R
10 Acquire additional property 500,000 250,000
interests for Runway 3
approach zone
11 Additional property interests 4,500,000 2,250,000
for clear zone to Runway 21
Schedule II
Page 1 of 2
37
Schedule II - continued
Item No. Item Total Cost City's Part
-------- ---------------------------------------- ------------ -------------
12 Develop first stage of new 1,500,000 750,000
terminal area for the purpose
of creating a sight line to
Runway 9-R
13 Construction of interior airport 200,000 100,000
perimeter road
----------- ----------
TOTAL $14,774,900 $7,424,480
=========== ==========
Schedule II
Page 2 of 2
38
ADDENDUM TO THE AIRPORT USE AGREEMENT
(CONSOLIDATED AS OF FEBRUARY 1, 1991)
FIELD IMPROVEMENT LANDING FEES
At the inception of this Agreement and until such time as the Airline has
established the full twelve (12) month period of Basic Landing Fees paid, to
allow inclusion of the Airline in the proration of the annual Field
Improvements Landing Fees to all of the Airlines, pursuant to Article VII, the
Airline will be charged monthly Field Improvement Landing Fees at the per
thousand pound rate in effect for the Atlanta Airlines during such period.
THE INITIAL FIELD IMPROVEMENTS LANDING FEE-AIP #1
This Landing Fee covers the financing of 1967-72 major airfield improvements
and is re-calculated May 1 of each year to allocate a proportionate share of
the annual requirement to amortize the costs to the Atlanta Airlines, based on
each Airline's pro rata share of Basic Landing Fees paid during the preceding
twelve (12) month period.
THE ADDITIONAL FIELD IMPROVEMENTS LANDING FEE-AIP #2
This Landing Fee covers the financing of the construction of the northernmost
runway, or fourth (4th) runway. The annual amount required to amortize the
costs is allocated among the Atlanta Airlines on the same basis as AIP #1,
i.e., based on each Airline's pro rata share of Basic Landing Fees paid during
the preceding twelve
39
ADDENDUM TO THE AIRPORT USE AGREEMENT
Page 2 of 2
(12) month period, with the exception that AIP #2 Landing Fee has two
calculation dates. A portion of the annual requirement is allocated among the
Airlines January 1 of each year and the remaining portion of the annual
requirement is allocated May 1 of each year.
FUTURE ADDITIONAL FIELD IMPROVEMENTS LANDING FEES
Any future major airfield improvements which the City undertakes with the
approval of a Majority In Interest of the Atlanta Airlines will require an
Additional Field Improvements Landing Fee. Once the annual requirement to
amortize the cost of such improvements is established, the allocation of the
Airline's pro rata share will be made in accordance with the procedure
established for AIP #1 and AIP #2 Landing Fee allocation.
40
[MAP]
41
[FLOOR PLAN]
EXHIBIT B
Page 1 of 2
42
[FLOOR PLAN]
EXHIBIT B
Page 2 of 2
