EST TRANSMITTAL

Transcription

1 CI S EST TRANSMITTAL BOCC Agenda Item # MEETING DATE 12/7/15 Name: Lloyd Arnold Date Submitted: 11/19/15 Dept: Airport Phone: STRATEGIC PLAN PRIORITY #: STRATEGIC BUSINESS PLAN ITEM TO EXPLAIN: 1 Managed Growth and Economic Development of Montrose County Discussed with County Manager? Yes / No Reviewed by County Attorney? Yes / No Included in Current Year Budget? Yes / No Program is... ANNUAL EXPENSE: OR estimated annual REVENUE: $30, NEW ONGOING TEMPORARY Additional Employees Required? Yes / No Subject to Annual Renewal? Yes / No If so, how many? Is this a Bid Award? Yes / No Is this a Grant? Yes / No County's Match? Bidders and Bid Amounts Attach a Summary of Bids Received What Fiscal Policies and Rules Did You Follow? FOR MUNIS ENTRY: Org # Obj # Project Code N/A Purchase Amount: N/A Mandatory Information Montrose County Fiscal Rules Reviewed by Procurement? N/A Is this to be communicated to the Public? Press Release Editorial Board Newsletter Article Other Budget Amendment Attached? N/A BOCC Review and Discussion w/county Manager SUMMARY: Consideration and possible authorization for the Chairman's signature on the Landing Fee and Airport Use Agreement for Mesa Airlines, Inc., effective 12/7/15 as reviewed by Counsel. This Agreement represents estimated annual revenue in the amount of $30,

2 Mesa Airlines, Inc. Landing Fee and Airport Use Agreement THIS AGREEMENT ("Agreement"), between Montrose County, Colorado, acting by and through its Board of County Commissioners, a Colorado body corporate and politic, with administrative offices at 317 South 2 nd Avenue, Montrose, Colorado ("County") and Mesa Airlines, Inc. ("Airline"), a commercial airline company authorized by the U.S.Federal Aviation Administration (FAA) for passenger air transport and other air transport related business, with headquarters in Phoenix, Arizona; collectively "Parties", provides as follows: RECITALS WHEREAS, County owns and operates the Montrose Regional Airport, hereinafter called "Airport," located in Montrose County, Colorado; and WHEREAS, Airline is a corporation currently licensed by County to utilize the Montrose Regional Airport (MTJ) for incoming and outgoing air passenger flights; and WHEREAS, County owns the real property on which all Airport operations are located, together with the facilities, easements, rights, licenses, and privileges hereinafter granted, and County has full power and authority to enter into this Agreement in respect thereof. NOW THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows: 1. Purpose of Agreement The purpose of this Agreement is to allow Airport access to the Montrose Regional Airport, provide Airline with signatory landing fees, and to lease space inside the terminal building for the purpose of ticket sales, passenger and luggage check-in, and other services related to Airline's customers and passengers. 2. Preexisting Agreement Coincident with the effective date of this Agreement, all prior agreements, oral or written shall cease and terminate without any further action on the part of either party hereto. As of the effective date of this Agreement, it shall be the only agreement presently in existence between the Parties pertaining to the subject matter herein. 3. Use of Airport and Terminal This Agreement shall grant Airline the right to the use of the Premises for the sole purpose of conducting thereon its air transportation business working with American Eagle Airlines including reserving space and selling tickets for air transportation of passengers and the processing of small package delivery by Airline; furnishing information to such passengers and the general public; checking, assembling, handling, and dispatching baggage of Airline's enplaning passengers; 1

3 handling lost and found articles; conducting administrative, customer service, and other office purposes in connection with Airline' business; for passenger and customer relations; for Airline's operations offices; for a baggage hold area; and for storage of equipment and catering supplies; for crew space and weather, dispatch, and communications functions. Subject to the prior approval of County and such other entities as may have regulatory authority over Airline (such as the Federal Aviation Administration and the Transportation Security Administration), and provided that such use does not interfere with or adversely affect the operation of the Airport or any other users of the Airport. Airline shall have the right of ingress and egress, to the Premises, as shall its employees, suppliers of materials, furnishers of service, and customers, unless otherwise specifically provided for herein, provided however that such access shall be subject to all governmental limitations and regulations as may apply from time to time. All uses hereunder shall be subject to County's rules and regulations, rates and charges governing the Airport as set forth below. TERM, RATES, FEES AND CHARGES AN OPTION OF RENEWAL 4. Term This Agreement shall become effective on December 1, 2015 and terminate at midnight on November 30, 2016 at which time Airline shall renegotiate a new schedule of rentals, fees and charges for the remainder of the term of the Lease herein attached as Exhibit A. In the event that Airline shall hold over and remain in possession of the Premises herein leased after the expiration of this Agreement without any written renewal or extension hereof, such holding over shall not be deemed to operate as a renewal or extension of this Agreement, but shall create only a tenancy at will upon the rental herein reserved. Such tenancy at will may be terminated at any time by County or Airline upon thirty (30) days written notice to the other party. Airline may request additional one year extensions of this Agreement if it is not in default as defined under the Termination Section herein and has satisfactorily performed its obligations under the terms of this Agreement. Such request for extension shall be in writing, and submitted to County no less than ninety (90) days prior to expiration of the year of current licensure, and will include Airline's projected operations and estimated maximum gross landed weight for the following License year. This information will be consolidated with other information on flight activity to calculate the new rentals, fees and charges. Renegotiation of said rentals, fees and charges shall be based upon projected actual costs incurred by County to provide required and optional services and facilities to Airline, in conjunction with the other signatory carriers, and other capital improvements as may become necessary for the safe and efficient operation of the Airport. Any increase or decrease to the rentals, fees and/or charges set forth in this Agreement is subject to approval by the Board of County Commissioners at a publically noticed and held meeting prior to implementation. 2

4 Airline shall have the option to request a meeting or series of meetings at any time forty five (45) days prior to the License expiration date to discuss the proposed rentals, fees and charges. Should Airline choose not to request discussion meetings, the rentals, fees and charges as proposed by County shall become effective on the anniversary date of effective date of this Agreement for any subsequent year of license extension. Should the Parties be unable to agree upon mutually acceptable rentals, fees, and charges thirty (30) days prior to the expiration date of the Lease this Lease shall terminate and Airline shall become a tenant at will, subject to termination upon thirty (30) days written notice as provided in this Section. 5. Landing Fee See Exhibit A 6. Security Identification Badges (if applicable) See Exhibit A 7. Parking Permits (if applicable) See Exhibit A 8. Fuel and Potential Other Services The current Fixed Base Operator (FBO) on the airfield is Black Canyon Jet Center. That FBO can be reached at or Rental Payments and Fees All payments by Airline to County hereunder shall be made payable by Airline to the Montrose Regional Airport. Nothing contained herein shall in any way affect Airline's obligation to collect Passenger Facility Charges or other charges, fees or taxes not specifically addressed herein. All invoices which County is required to give Airline hereunder shall be delivered by County to Airline. Any amounts due shall be paid by Airline, no later than sixty (60) days of receipt of said invoice, by check, payable to the Montrose Regional Airport which shall be delivered or mailed, postage prepaid to 2100 Airport Road, Montrose, Colorado 81401, or such other place as may hereafter be designated by County. The acceptance by County of any payment made by Airline shall not preclude County from verifying the accuracy of Airline's report, submitted to County as provided in this Agreement, or from recovering any additional payment actually due from Airline. 10. Expenses, Damage, Late Charges and Interest, Late Fees County shall be entitled to, and the Airline agrees to pay, interest on account of all charges or fees due based on this Agreement that are past due 60 days from the due date, to be charged at the rate of one and one half (1 1A%) per month; or a minimum of $35.00 per month that are past due 30 days from the due date. The Airline further agrees to pay a $25 fee for any returned check. Said interest charges, late fees or 3

5 returned check fees shall be included as service charges and be deemed part of the charges or fees required by this Agreement. The Airline further agrees to pay Montrose County any expenses and costs, including reasonable attorney's fees, incurred by the County in collecting any amounts due under this Agreement. INDEMNITY AND INSURANCE 11. Indemnification Airline agrees to fully indemnify, and save forever harmless the County from and against all claims and actions and all reasonable expenses incidental to the investigation and defense thereof, based on or arising out of claims for damages or injuries to property or to persons, including wrongful death, and arising out of Airline's use or occupancy of the Premises; provided however, that County shall give to Airline prompt and reasonable notice of any such claims or actions, and Airline shall have the right to investigate, compromise and defend the same; and provide further that Airline shall not be liable for any claims, actions, injury, damage or loss occasioned by any negligence or intentional action of County, its agents, officials or employees. Airline shall indemnify and save and hold County harmless from and against any claim by carriers serving Airline, provided, however, Airline shall not be liable for any claims, actions, injury, damage or loss occasioned by any negligence or intentional acts of County, its agents or employees. 12. Insurance Airline shall maintain the following insurance coverage and, within thirty (30) days after the effective date of this Agreement, provide County with a copy of the certificates of insurance evidencing such coverage. Airline shall name County as an additional insured under liability coverage's, but only with respect to Airline's operations at the Airport as their interest may appear on all insurance policies, and provide a valid endorsement that such policy may not be canceled, terminated, or materially modified without ten (10) days prior written notice to County. Notice shall only be provided if the insurance company cancels or materially alters the policy to the extent that it would no longer meet the requirements of this Agreement. a. Workers Compensation: Airline shall procure and maintain during the Term of this Lease, Workers Compensation insurance in amounts required by state statute to cover obligations imposed by applicable laws for any employee or contractor engaged in the performance of work for Airline. b. Aircraft Liability per Occurrence: Combined single limit for bodily injury and property damage based on passenger seating capacity as follows: Seating Capacity Amount 1-19 passengers $20,000, passengers $50,000, passengers $100,000, passengers $150,000,000 4

6 The above insurance limits shall be determined by the capacity in passenger seats of the largest aircraft that services Montrose Regional Airport in the airline's fleet (whether owned, leased or loaned). c. Hangarkeepers Liability: If applicable, while in care, custody and control $5,000,000 per occurrence, subject to policy deductibles. d. Commercial General Liability: Airline shall procure and maintain during the Term of this Lease a policy of Commercial General Liability insurance with a minimum combined single limit of Three Million Dollars (3,000,000) each occurrence and Three Million Dollars (3,000,000) aggregate. The policy shall be applicable to the Premises and all portions of the Airport on which Airline's operations occur. The policy shall include coverage for bodily injury, property damage (including completed operations), personal injury (including coverage of contractual and employee acts), contractual, independent contractors, and completed operations. TERMINATION 13. Termination of Agreement by Airline: The following shall define the rights of Airline to terminate this Agreement: Airline, at its option, may declare this Agreement terminated in its entirety at any time Airline is not in default in the payment of rentals or fees to County by giving County sixty (60) days advance written notice, and by surrender of the Premises on the happening of any one or more of the following events: 1. If the Premises become untenable in whole, or in substantial part, and Airline does not proceed as promptly as reasonably practicable with the repairs and rebuilding necessary to restore the premises to its condition before the occurrence of the damage. 2. If County fails to provide and maintain means for unobstructed ingress and egress to and from the Premises in accordance with the provisions of this Agreement. 3. If County closes the Airport to Aircraft operations in general, or to the flights of Airline for reasons other than weather, acts of God, or other reasons beyond County's control, and fails to reopen the Airport to such operation or flights for a period in excess of thirty (30) days. 4. If County fails to comply with any of the terms or provisions of this Agreement or fails to promptly fulfill any of its obligations under this Agreement. 5. No termination declared by Airline shall be effective unless and until not less than sixty (60) days have elapsed after written notice to County specifying the date on which such termination shall take effect and the cause for which is being terminated. County may cure the cause of such termination within said sixty (60) day period, or such longer time as the parties may agree. 5

7 14. Termination of Agreement by County: The following will define the rights of County to terminate this Agreement: County, at its option, may declare this Agreement terminated on the happening of any one or more of the following events, and may exercise all rights of entry and reentry on the Premises: 1. If the rentals and fees, or other money payments the Airline herein agrees to pay, or any part thereof, shall be unpaid on the date the same shall become due. 2. If Airline files a voluntary petition in bankruptcy, or makes a general assignment for the benefit of creditors, or if Airline is adjudicated as bankrupt. 3. The taking of jurisdiction of Airline or its assets by a court of competent jurisdiction pursuant to proceedings brought under the provisions of any federal reorganization act. 4. The appointment of a receiver of a trustee of Airline's assets by a court of competent jurisdiction and the same is not removed within ninety (90) days, or a voluntary agreement with Airline's creditors. 5. If any act occurs that deprives Airline permanently of the rights, powers, and privileges necessary for the proper conduct and operation of its air transportation business. 6. If Airline uses or permits the use of its Premises at any time for any purpose for which the use thereof at that time is not authorized by the Agreement, or by a subsequent written agreement between the parties, or permits the use thereof in violation of any law, rule, or regulation to which Airline has agreed in the Agreement to conform. 7. If Airline discontinues air transportation to the Airport as a consequence of Airline's filing a bankruptcy petition, voluntary or involuntary, seeking a reorganization or readjustment of it's indebtedness under the federal bankruptcy laws or under any other statute of the United States or any state thereof, or being adjudged bankrupt, Airline shall be deemed to have forfeited its leasehold space. 8. If Airline is in violation of any provision of this Agreement not cured within a thirty (30) day period as specified in the following paragraph. 9. No termination declared by County under this Agreement shall be effective unless and until at least thirty (30) days have elapsed after written notice to Airline specifying the date upon which such termination shall take effect and the cause for which is being terminated. Airline may cure the cause of such termination within said thirty (30) day period, or such longer time as the parties may agree thereto, in the event that the cause cannot reasonably be cured within thirty (30) days. OBLIGATIONS OF COUNTY 15. Operation as Public Airport County convents and agrees that at all times it will operate and maintain the Airport facilities, as defined hereinabove, as a public airport consistent with and pursuant to the Sponsor's Assurances given by County to the United States under the Federal Airport Act. 6

8 16. Additional Services The County shall have no responsibility or liability to furnish any services to Airline other than those specified in this Agreement, but Airline may negotiate with County for any additional services it may request and shall pay for such additional services the consideration so negotiated. OBLIGATIONS OF AIRLINE 17. Subletting The Airline shall not rent or sublease all or any part of the Leased Premises. MISCELLANEOUS 18. License Fees and Permits Airline shall obtain and pay for, and maintain as current, 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. 19. Airport Security Airline shall comply with the applicable rules and practices set forth in the Montrose Regional Airport Security Plan, as may be amended from time to time, and which is incorporated into this Agreement by reference. Airline shall monitor and control ingress and egress to all portions of the Montrose Regional Airport they are operating in. Any fines assessed against Airport or County by the FAA, TSA, or other government agency as a result of Airline's failure to comply with the provisions of this paragraph or other intentional or negligent acts or omissions of Airline's employees or agents will be paid promptly to Airport by Airline within sixty days (60) days of receipt of invoice. Airline hereby agrees to implement procedures to secure access points to the Air Operations Area ("AOA") or the Security Identification Display Area ("SIDA") over which Airline exercises its exclusive control or utilized during its operations. Examples of access points are the Ticket Counter Office Door and baggage conveyor tunnels. a. Airline agrees to control the movement of persons within its Exclusive Use Area by abiding by the personnel requirements outlined in County's Approved Master Security Plan. b. Airline agrees to control access to the AOA and SIDA through any jointuse access point at which it is boarding or deplaning Airline's passengers to its aircraft. Airline also agrees that it shall, at no time, leave any door or access point unattended if it has rendered said access point accessible to egress by unauthorized persons. 7

9 c. Airline's personnel will challenge all persons not recognized as authorized to enter the AOA or SIDA and report them to Law Enforcement or Airport personnel immediately. d. Airline will immediately notify Airport personnel each time a suspicious act is observed or an unresolved question arises concerning Airport security. e. Airline will immediately notify Airport personnel when the procedures described herein are not adequate to perform the control functions as stated. 20. Generally Accepted Accounting Principals Whenever any report or disclosure referred to in this Agreement consists, either in whole or in part, of financial information, said report or disclosure shall be prepared in accordance with generally accepted accounting principals. 21. Paragraph Headings The paragraph headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provisions of the Agreement. 22. Entire Agreement This Agreement, together with all exhibits attached hereto, constitutes the entire Agreement between the parties hereto, and all other representations of statements heretofore made, verbal or written, are merged herein. This Agreement may be amended only by a written instrument duly executed by authorized representatives of the parties hereto. 23. Incorporation of Exhibit(s) All exhibits referred to in this Agreement are intended to be and hereby are specifically made a part of this Agreement. 24. Governing Law This Agreement shall be governed and construed in all respects and the rights of the parties hereto shall be determined in accordance with the laws of the State of Colorado. Any suits or claims arising out of this Agreement shall be filed in Montrose County, Colorado. 25. Attorney's Fees In the event County is reasonably required to obtain counsel in order to enforce any of its rights under this Agreement or to collect rentals, fees, and charges or to enforce any obligation under this Agreement, it shall be entitled to recover reasonable attorney's fees incurred in connection with such proceedings. 26. Quiet Enjoyment Airline shall, upon payment of the rentals, fees, and charges as herein required and subject to performance and compliance by Airline of the covenants, conditions, and 8

10 agreements on the part of Airline to be performed and complied with hereunder, peaceably have and enjoy the rights, uses, and privileges of the Airport, its appurtenance, and facilities as granted hereby and by the Rules and Regulations. 27. Alterations and Improvements Airline shall make no alterations, additions, improvements to, or installations on or in the space leased under this Agreement without the prior written approval of County. Any and all alterations, additions and improvements shall meet all applicable building, fire and electrical codes, city, county or state. 28. Vending Machines and Exclusive Concessions No amusement or vending machines or other machines operated by coins, tokens or other means shall be installed or maintained in or upon Airline's Exclusive Space or Joint Use Space, except for the sole use of Airline's employees. Such machines shall be placed out of sight of the general public. 29. Notices Whenever any notice or payment is required by this Agreement to be made, given or transmitted to the parties hereto, such notice or payment shall be enclosed in an envelope with sufficient postage attached to insure delivery and deposited in the United States Mail, addressed to: Montrose Regional Airport 2100 Airport Road Montrose, Colorado And U.S. Mail notices, billings, consents and approvals to Airline addressed to: Mesa Airlines, Inc. 410 North 44 th Street, Suite #700 Phoenix, AZ or such place as either party shall by written directive designate in the manner herein provided. This Agreement may be executed in more than one counterparts; each of which shall be deemed an original, and together shall be one and the same instrument. 9

11 THIS AGREEMENT shall be binding upon the parties hereto, their successors, and assigns. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as of the date last below mentioned. COUNTY OF MONTROSE, STATE OF COLORADO By David White, Chairman, Montrose County Board of County Commissioners Date AIRLINE: Mesa Airlines, Inc. By, Authori 'ed Representative Print Name Kf...v.,fk tj) kk6 n Title i) f e,ro--.1-k s Date It I I ATTEST: By Clerk/Deputy Clerk to the Board [SEAL] Date ACKNOWLEDGMENT State of ft-e.12-0 &) Pr County of m P SS. On this 14 day of /Jovt-t., 2015, before me, a Notary Public, did appear V I (1/41 W ILSo and executed the foregoing document in his/her capacity as (position title) 00F F1-16-hT torigor Mesa Airlines, Inc. and that the same was the act of the entity identified in the document as "Airline". Witness my hand and seal. My commission expires: 03)1 Cy RA 142 [SEAL] MALGORZATA RUDERSTALLER Notary Public - Arizona Maricopa County Expires 03/1E/2018 Notar Public Vu-l-e-cs\-.01eLL 10

12 Exhibit A Landing Fee The current rate landing fees for signatory is $3.73/1000 lbs. maximum certified gross landing weight for all aircraft which land at the Airport during the Term. A monthly statement must be provided to the Airport by the 5 th of each month for the previous month's business/activities. Maximum Certificated Gross Landing Weight shall mean the maximum weight, in 1,000 pound units, or fraction thereof, at which each aircraft operated by Airline is authorized by the FAA to land, as recited in Aircraft's flight manual governing that aircraft. Security Identification Badges County will provide Airline with Security Identification Display Area (SIDA) badges for each of Airline's employees at the actual cost to produce each badge which is currently $20.00 for renewal and $60.00 for a new badge and is subject to change without notice. On May 19, 2008 the Airport installed a Proximity Card access control system. The Proximity Card acts both as a SIDA badge and key to each airline's approved access areas. Airline shall be responsible at all times for the security of such badges and shall return to County within one day after any employee termination the badge of any employee whose employment with Airline ceases. Employees of Airline shall pay County a lost badge charge of $50.00 for any badge not returned to County upon cessation of an employee's employment or for any badge lost by any employee of Airline which has to be replaced by County. If applicable a gate key will remain in place so that airlines can have access to the trash receptacles(s). A fee of $20.00 will apply for lost, stolen or unreturned keys. Airport must receive in writing an incident report regarding the lost, stolen or unreturned badges and/or keys which will include date of loss, circumstances and must be signed by the employee. Airline shall immediately confiscate all identification badges and keys from any employee of Airline whose employment ceases. Airline shall take full responsibility for any person or persons allowed access to the Air Operations Area or SIDA through the Premises by Airline or whom Airline or its employees, agents, contractors, suppliers allow through secured gates. In accordance with and stated in CFR (b) (1-4) it is the Airline's obligation to perform Criminal History Records Check (CHRC) on all employees seeking unescorted access authority, authority to perform screening functions, or authority to perform checked baggage or cargo functions. Each aircraft operator must ensure that each individual identified in paragraph (a) (1) or (3) of the regulations has undergone a fingerprint based CHRC that does not disclose that he or she has a disqualifying criminal offense. Parking Permits (if applicable) The Airport does provide employee parking in two areas for daily and overnight needs. Parking permits can be attained through the Administration Office for $10.00 each during regular business hours. 11