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Resolution 283-2021 MONROE COUNTY, FLORIDA RESOLUTION NO. 283 -2021 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, AUTHORIZING THE DIRECTOR OF AIRPORTS, HIS DESIGNEE, AND/OR HIS SUCCESSORS, TO SIGN AND EXECUTE NONSIGNATORY AIRLINE OPERATING AGREEMENTS WITH COMMERCIAL AIRLINE SERVICE PROVIDERS SEEKING TO OPERATE AT THE KEY WEST INTERNATIONAL AIRPORT AND THE FLORIDA KEYS MARATHON INTERNATIONAL AIRPORT. WHEREAS, Monroe County Administrative Instruction 2301.7 (Administrative Instruction) promulgated on April 15, 2016 currently sets forth the Commercial Airline Application Procedure for Monroe County Airports; and WHEREAS, the Administrative Instruction contains a checklist of information an airline is required to submit with their application; and WHEREAS, under the current Administrative Instruction, once the application is approved, the airline operates without entering into a formal written agreement with the County; and WHEREAS, airport staff, in conjunction with airport consultants have developed a comprehensive NonSignatory Airline Operating Agreement; and WHEREAS, the County Attorney's office has reviewed and approved the NonSignatory Airline Operating Agreement(copy attached hereto as Exhibit A) ; and WHEREAS, the NonSignatory Airline Operating Agreement sets forth the duties, obligations and requirements commercial airlines must meet in order to operate at the Key West International Airport or the Florida Keys Marathon International Airport; and WHEREAS, a formal written agreement such as the NonSignatory Airline Agreement standardizes the terms under which an airline can operate at the Key West International Airport or the Florida Keys Marathon International Airport and also provides for protection of the County's interest; and WHEREAS, the Board finds that the use of the NonSignatory Airline Operating Agreement is in the best interest of the County; and WHEREAS, currently, the Board of County Commissioners (Board) must approve all agreements having a value in excess of $50,000 which can cause up to a six week delay in implementation of an airline service; and WHEREAS, the Board desires to eliminate this delay in the implementation of airline service by delegating the authority to execute the NonSignatory Airline Operating Agreement to the Director of Airports or his designee and/or successors; now therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,FLORIDA: 1. Finds that the NonSignatory Airline Operating Agreement(Exhibit A)is a standardized agreement, which protects the county's interest and sets forth the duties, obligations and requirements commercial airlines must meet in order to operate at the Key West International Airport and/or the Florida Keys Marathon International Airport. 2. Finds that the NonSignatory Airline Operating Agreement,as a standardized document, does not need to go before the Board for approval before execution nor does the commencement of the new service need to be delayed. 3. Authorizes the Director of Airports, currently Richard Strickland, or his designee and/or successors, to execute the NonSignatory Airline Operating Agreement and any amendments and updates thereto. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at a regular meeting of said Board held on the 15th day of September 2021. Mayor Michelle Coldiron Yes ,, NROE COD ATTORNEY Mayor Pro Tem David Rice Yes '// 1aOVE/• FORM w Commissioner Craig Cates Yes ." �C ` PED•O.J ., - j, L„ Commissioner Eddie Martinez Yes /Miff NTY ATTORNEY � �`'�`�`�`' 8/28/21 4 ` " Date •_�� . --i� \��. Commissioner District V Vacant (.1 1BOARD OF COUNTY COMMISSIONERS` -. r�; " �`sa ' :' S�e OF MONROE COUNTY, FLORIDA Attest: Kevin Madok, Clerk A 4, i I gepaill""No rn AU Fli By:6 By: As Deputy Clerk Mayor NonSignatory Airline Operating Agreement—EYW EXHIBIT A NONSIGNATORY AIRLINE OPERATING AGREEMENT KEY WEST INTERNATIONAL AIRPORT Key West rr International Airport a,a r,J Department of Airports Monroe County, Florida Airline Final Version � 1 � NonSignatory Airline Operating Agreement-EYW NONSIGNATORY AIRLINE OPERATING AGREEMENT KEY WEST INTERNATIONAL AIRPORT THIS AGREEMENT is made and entered into 20 , by and between Monroe County, a political subdivision of the State of Florida ("County"), and , a corporation, having its office and principal place of business at ("Airline"). WITNESSETH: WHEREAS, County, by and through its Department of Airports ("Department"), owns and operates Key West International Airport, located in Monroe County, Florida; and WHEREAS, Airline is engaged in the business of commercial air transportation for the carriage of persons, property, parcels, cargo, and mail; and WHEREAS, Airline desires to obtain certain rights, services and privileges in connection with the use of the Airport and its facilities, and Department is willing to grant the same to Airline upon the terms and conditions hereinafter set forth. WHEREAS, pursuant to the applicable provisions of the former Federal Aviation Act of 1958, as amended and recodified, 49 U.S.C. 40 10 1, et seq., and the former Airport and Airway Improvement Act of 1982 ("AAIA") as amended and recodified, 49 U.S.C. 47 10 1, et seq (herein the AAIA grant statute is referred to as the "Act"), the representations contained in Federal Aviation Administration project applications, and in consideration of the County's adoption and ratification of the Federal Aviation Administration ("FAA") grant assurances, under said acceptance of FAA grant agreements as provided by the Act, constitute the contractual obligations and rights of the United States and the County with respect to compliance with grant assurances. County's designated official representative is the Airport Director. NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, and for such other good and valuable consideration, the receipt of which the parties hereby acknowledge, the parties hereto covenant and agree to the following terms and conditions: Final Version 121 NonSignatory Airline Operating Agreement-EYW {Page intentionally left blank.} Final Version 131 NonSignatory Airline Operating Agreement—EYW Table of Contents ARTICLE 1 - DEFINITIONS......................................................................................................10 ARTICLE 2 — STATEMENT OF INTENT...................................................................................17 ARTICLE 3 — EFFECTIVE DATE AND TERM...........................................................................18 ARTICLE 4 — REQUIREMENTS TO OCCUPY AND USE AIRLINE PREMISES.......................19 Letterof Authorization ...........................................................................................................................19 Exclusive Use Premises...........................................................................................................................20 Preferential Use Premises.......................................................................................................................20 Use of Gates Not Assigned on a Preferential Use Basis..........................................................................20 Airline's Right to Remain Over Night (RON) ...........................................................................................21 JointUse Premises..................................................................................................................................21 Condition of Airline Premises and Airport..............................................................................................21 Short-Term Facilities Use Permit............................................................................................................22 ARTICLE 5 - USE OF AIRPORT AND RELATED FACILITIES.................................................24 Rightsand Privileges ................................................................................................................24 Useof the Airport...................................................................................................................................24 Specific Rights of Airlines at the Airport.................................................................................................24 Affiliates..................................................................................................................................................26 Limitationson Use by Airline..................................................................................................................27 ARTICLE 6— REPAIR AND MAINTENANCE............................................................................28 Designation of Maintenance Responsibilities.........................................................................................28 ARTICLE 7 - PAYMENT OF FEES AND CHARGES.................................................................29 ActivityReport........................................................................................................................................30 PublicAccess...........................................................................................................................................30 Audit........................................................................................................................................................30 Irrevocable Letter of Credit.....................................................................................................................31 PassengerFacility Charges......................................................................................................................32 NoFurther Charges.................................................................................................................................32 Accordand Satisfaction ..........................................................................................................................32 ARTICLE 8 - ADJUSTMENT OF RATES..................................................................................33 Final Version 141 NonSignatory Airline Operating Agreement—EYW AnnualAdjustment.................................................................................................................................33 CountyCovenants...................................................................................................................................33 ARTICLE 9 - CAPITAL EXPENDITURES .................................................................................34 ARTICLE 10 - AIRLINE IMPROVEMENTS...............................................................................35 Installation of Signs/Displays..................................................................................................................35 Installationof Equipment. ......................................................................................................................35 Installation of Improvements .................................................................................................................35 ConstructionBonds.................................................................................................................................36 Construction Assurance..........................................................................................................................36 Contractor Requirements.......................................................................................................................37 Maintenance of Signs, Equipment, and Improvements .........................................................................37 NoLiens...................................................................................................................................................38 Titleto Improvements............................................................................................................................38 ARTICLE 11 - DAMAGE OR DESTRUCTION...........................................................................39 ARTICLE 12 - INDEMNIFICATION ...........................................................................................40 ARTICLE 13 - INSURANCE......................................................................................................41 Insurance Requirements.........................................................................................................................41 Waiverof Subrogation............................................................................................................................42 AdditionalInsured...................................................................................................................................42 Certificate of Insurance...........................................................................................................................42 Claims-Made Liability..............................................................................................................................43 Umbrella Liability Insurance or Excess Liability Insurance......................................................................43 Rightto Review.......................................................................................................................................43 Invalidationof Policies............................................................................................................................44 Deductibles, Coinsurance& Self-Insured Retention...............................................................................44 No Representation of Coverage Adequacy.............................................................................................44 ARTICLE 14— SURRENDER OF PREMISES ..........................................................................45 Surrender of Premises ............................................................................................................................45 Removal of Personal Property................................................................................................................45 ARTICLE 15 - ASSIGNMENT, SUBLEASING AND HANDLING AGREEMENTS .....................47 Assignmentby Airline.............................................................................................................................47 Sublettingby Airline................................................................................................................................47 Assignment and Subletting Documents..................................................................................................48 Final Version 151 NonSignatory Airline Operating Agreement—EYW HandlingAgreements .............................................................................................................................48 ARTICLE 16 - AVAILABILITY OF ADEQUATE FACILITIES .....................................................49 Accommodation of Air Transportation Companies................................................................................49 Accommodation of Specific Flights.........................................................................................................50 Accommodationof Airline......................................................................................................................51 Indemnification Obligations....................................................................................................................51 Reassignment, Reallocation, Re-Design..................................................................................................51 RelocationExpenses ...............................................................................................................................52 ARTICLE 17 - SUBORDINATION AND SAVINGS CLAUSE.....................................................53 Subordination .........................................................................................................................................53 ARTICLE 18 - NONDISCRIMINATION .....................................................................................54 ARTICLE 19 - NONEXCLUSIVE RIGHTS.................................................................................55 ARTICLE 20 - GOVERNMENTAL RESTRICTIONS..................................................................56 AvigationRights......................................................................................................................................56 HeightLimitation ....................................................................................................................................56 County Tax Assessment Right.................................................................................................................56 GovernmentalReview.............................................................................................................................56 FederalRight to Reclaim.........................................................................................................................56 ARTICLE 21 - LAWS, REGULATIONS, PERMITS, TAXES AND COMPLIANCE .....................57 Permitsand Licenses...............................................................................................................................57 Airand Safety Regulation........................................................................................................................57 Assumptionof Liability............................................................................................................................58 Environmental Indemnification..............................................................................................................58 Environmental Considerations................................................................................................................58 Security...................................................................................................................................................60 Compliance by Other Tenants ................................................................................................................61 ARTICLE 22 - DISCLAIMER OF LIABILITY..............................................................................62 ARTICLE 23 - GENERAL PROVISIONS...................................................................................63 ClearTitle................................................................................................................................................63 Relationshipof Parties............................................................................................................................63 CountyNot Liable....................................................................................................................................63 AuthorizedUses Only..............................................................................................................................63 QuietEnjoyment.....................................................................................................................................63 Final Version 161 NonSignatory Airline Operating Agreement—EYW Timeof Essence ......................................................................................................................................64 Non-Exclusivity of Remedies...................................................................................................................64 NoRecording...........................................................................................................................................64 NoThird-Party Beneficiaries...................................................................................................................64 AnnualBudgetary Funding......................................................................................................................64 Incorporation by References ..................................................................................................................64 Operationof Airport...............................................................................................................................64 Agentfor Service.....................................................................................................................................65 No Individual Liability..............................................................................................................................65 GovernmentalAuthority.........................................................................................................................65 RightsReserved to County......................................................................................................................65 Severa b i l ity..............................................................................................................................................65 Venue......................................................................................................................................................65 GoverningLaw........................................................................................................................................66 Consentsand Approvals..........................................................................................................................66 Notices....................................................................................................................................................66 Construction............................................................................................................................................67 ParagraphHeadings................................................................................................................................67 BindingEffect..........................................................................................................................................67 ExcusableDelays.....................................................................................................................................67 PublicEntity Crimes................................................................................................................................67 EthicsClause ...........................................................................................................................................68 Entiretyof Agreement............................................................................................................................68 NoBroker................................................................................................................................................68 Radon......................................................................................................................................................68 Survival....................................................................................................................................................68 EXHIBIT "A" —AIRPORT LAYOUT PLAN ................................... 70 EXHIBIT "B" —TERMINAL LAYOUT PLAN................................. 71 EXHIBIT "C" —TERMINAL SQUARE FOOTAGE........................ 75 EXHIBIT "D" - MAINTENANCE SCHEDULE............................... 87 EXHIBIT "E" - RATE AND FEE SCHEDULE............................... 88 EXHIBIT "F" - FACILITIES USE PERMIT.................................... 103 EXHIBIT "G" —ACTIVITY REPORT............................................ 104 Final Version 171 NonSignatory Airline Operating Agreement—EYW EXHIBIT "H" - FEDERAL NONDISCRIMINATION REQUIREMENTS........ 105 EXHIBIT "I"— FAA GRANT ASSURANCES................................ 118 EXHIBIT "J" —AFFILIATES IDENTIFICATION AND REQUIREMENTS..... 136 EXHIBIT "K' — LETTER OF AUTHORIZATION........................... 137 EXHIBIT "L" —AIRCRAFT PARKING POSITIONS...................... 141 Final Version 181 NonSignatory Airline Operating Agreement-EYW {Page intentionally left blank.} Final Version 191 NonSignatory Airline Operating Agreement-EYW ARTICLE 1 - DEFINITIONS The following words, terms, and phrases wherever used in this Agreement shall have the meanings set forth in this Article and the meanings shall apply to both singular and plural forms of such words, terms and phrases. Additional words, terms and phrases used in this Agreement, but not defined in this Article or the Rate and Fee Schedule (as hereinafter defined), shall have the meanings set forth in the Bond Governance Documents: Activity Report means the reporting form required to be submitted by Airline to the Department each month attached hereto as Exhibit"G", as may be amended from time to time by the Department upon thirty (30) days prior written notice to Airline. The modified Activity Report shall automatically become a part of this Agreement. Affiliate means a Commercial Air Transportation Company designated by Airline as an Affiliate in accordance with the requirements of Article 5 and: (1)is a parent or subsidiary of Airline or of Airline's holding company; or(2) shares an International Air Transport Association (IATA) code with flight codes or livery with Airline at the Airport; or(3) otherwise operates under essentially the same trade name as Airline at the Airport, and uses essentially the same livery as Airline; provided that no"major" airline, as such term is defined by the FAA, shall be classified as an Affiliate of another"major' airline unless either clause (1) or (3) above defines the relationship between such airlines at the Airport. Affiliate(s) must be identified using Exhibit"Y -Affiliate Identification and Requirements Agreement means this NonSignatory Airline Operating Agreement between County and Airline, as amended and supplemented, and all addenda, schedules and exhibits hereto, which are incorporated herein by this reference. Words such as "herein," "hereafter," "hereof," "hereto," "hereby" and"hereunder," when used with reference to this Agreement, refer to this Agreement as a whole, unless the context otherwise requires. Aircraft Parking Apron means those areas of the Airport shown on attached Exhibit "L" -Aircraft Parking Positions and designated by the Airport Director for the parking of Commercial Air Transportation Companies' aircrafts and the loading and unloading of passengers, property, parcels, cargo and/or mail, refueling or overnight or temporary storage of aircraft. Aircraft Parking Position shall mean a location shown on attached Exhibit"L" including an aircraft hardstand, designated for parking an aircraft, and Aircraft Parking Positions shall be construed accordingly. Each Aircraft Parking Position will be assigned to a specific Gate. Airfield means those portions of the Airport provided for the landing, taking off, and taxiing of aircraft, including runways, taxiways, approach and runway protection zones, safety areas, infield areas, landing and navigational aids, Aircraft Parking Apron and land areas required by or related to aeronautical use of the Airport. Airfield Cost Center has the meaning set forth in the Rate and Fee Schedule. Final Version 1 101 NonSignatory Airline Operating Agreement—EYW Airline means the Commercial Air Transportation Company identified in the preamble of this Agreement and includes any Affiliates of Airline. Airline Party means Airline's officers, agents, employees, contractors, invitees (excluding passengers), licensees, subtenants, suppliers of service and materials and/or any other Persons whomsoever acting on behalf of or at the request of Airline. Airline Premises means those areas leased for use by Airline herein, which are comprised of Exclusive Use Premises, Preferential Use Premises and Joint Use Premises. Airport means the Key West International Airport located in Monroe County, Florida. Airport Director means the individual chosen by Monroe County to direct the Department of Airports. Airport Layout Plan means the approved scaled drawing of the existing and proposed land and facilities necessary for the operation and development of the Airport submitted to the Federal Aviation Administration by County pursuant to the airport sponsor grant assurance requirements. Airport Rules and Regulations means the Monroe County Key West International Airport Rules and Regulations, as now or hereafter amended, and any successor law or ordinance regulating activities or operations on the Airport. Assignment shall have the meaning set forth in Article 15. Bonds means any bonds or other financing instrument authenticated and delivered under and pursuant to the Bond Governance Documents. Bond Governance Documents means any documents heretofore or hereafter adopted, which authorize the issuance of Bonds. Business Day means any day other than a Saturday, Sunday or County holiday. Use of the word "day", as opposed to Business Day, means calendar day of twenty-four(24) hours measured from midnight to the next midnight. Capital Expenditure means an expenditure made to acquire, purchase or construct a single capital item for the purpose(s) of improving, maintaining or developing the Airport. Commercial Air Transportation Company means an air carrier providing carriage by air of passengers, property, parcels, cargo, and/or mail. Final Version � 11 � NonSignatory Airline Operating Agreement—EYW Commercial Air Transportation Service(s) means those service(s) and operation(s) related to or provided by Airline at the Airport for the commercial transportation of passengers, property, parcels, cargo and mail by air, including services and operations necessary and incidental thereto. Concourse A Project includes design and construction costs necessary to construct a Terminal Building to accommodate existing capacity. DBO for the Concourse A Project is projected to occur during the Term of this Agreement, estimated to be October 1, 2024 but is subject to change. County has the meaning set forth in the preamble of this Agreement. County Party means County's elected officers, employees and agents. Damage or Damages has the meaning set forth in Article 11. Date of Beneficial Occupancy"DBO" means the date a Capital Expenditure is completed and ready for use by intended user(s) of said Capital Expenditure. Department of Airports (Department) shall mean the department under the direction of the Airport Director assigned at Key West International Airport in charge of executing FAA Part 139 and TSA 1542. Department of Homeland Security means the United States Department of Homeland Security and any divisions thereof, including, but not limited to, the TSA. Department of Transportation means the United States Department of Transportation and any divisions thereof, including, but not limited to, the FAA. Effective Date means that date specified in Article 3. Emergency Landing means any flight that, after taking off from the Airport and without making a landing at any other airport, returns to land at the Airport because of operating causes, or for any other similar emergency or precautionary reason. Enplaned Passengers or Enplanement means any passenger boarding at the Terminal Building, including, but not limited to, any passenger that previously disembarked from another aircraft of the same or different Commercial Air Transportation Company or from the same aircraft, which was previously operated under a different flight number. Environmental Laws means all applicable federal, state and local laws, rules, orders and regulations protecting human health, the environment and/or natural resources, as such laws, rules, orders and regulations are now or hereafter amended, including, but not limited to, the Federal Clean Water Act, Safe Drinking Water Act, Clean Air Act, Final Version 1 121 NonSignatory Airline Operating Agreement—EYW Resource Conservation and Recovery Act and Comprehensive Environmental Response, Compensation and Liability Act of 1980. Exclusive Use Premises means those portions of the Terminal Building leased to Airline, for Airline's Exclusive Use, as more particularly identified in the attached Exhibit"B" - Terminal Layout Plan and Exhibit"C" -Terminal Square Footage. FAA means the Federal Aviation Administration and its authorized successor(s). Facilities Use Permit has the meaning set forth in Article 4. Fiscal Year means County's annual accounting period for its general accounting purposes, which as of the Effective Date of this Agreement, is the period of twelve (12) consecutive months commencing on October 1st and ending on September 30th of each year. Gate shall mean a specific portal that provides access from the holdroom to an Aircraft Parking Position and includes a gate podium. Upon DBO of the Concourse A Project, access to an Aircraft Parking Position will exclusively be via a Passenger Boarding Bridge. Hazardous Substance means any substance defined as a"hazardous waste", "hazardous material", "hazardous substance", "pollutant", or"contaminant" under any Environmental Law; any substance that is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is regulated by any governmental authority, agency, department, commission, board, agency, or instrumentality of the United States or the State of Florida; any substance that contains gasoline, diesel fuel, or other petroleum hydrocarbons or volatile organic compounds; any substance that contains polychlorinated biphenyls (PCBs), asbestos or urea formaldehyde foam insulation; or any substance, excluding those naturally occurring at the Airport, that contains or emits radioactive particles, waves, or materials, including, but not limited to, radon gas. Joint Use Premises means those areas of the Terminal Building (excluding Public Space) assigned for use by more than one (1) Commercial Air Transportation Company along with other authorized users of the Airport as shown in in the attached Exhibit"B and Exhibit"C". Landed Weight means the maximum gross certificated landing weight(MGLW), as certified by the FAA, in one thousand-pound units, for each aircraft operated by Airline at the Airport. Landing Fee shall mean a fee expressed in tenths of a cent per thousand s of the Landed Weight of each type of Airline's aircraft and shall be multiplied by the total of all Final Version 1131 NonSignatory Airline Operating Agreement—EYW MGLWs for all Revenue Landings of each type of aircraft landed at the Airport by Airline of which such rate will be set forth in the Rate and Fee Schedule. Letter of Authorization shall mean a letter issued by Airport Director in substantially the form appearing in Exhibit"K" which constitutes a permit by the County authorizing a legal entity or entities with the requisite federal regulatory approvals to conduct Air Transportation Business at the Airport and to use and occupy certain premises at the Airport in compliance with the terms of this Agreement and the Airport Rules & Regulations. Maintenance Schedule means the maintenance schedule attached hereto as Exhibit"D" —Maintenance Schedule. MCSO means the Monroe County Sheriff s Office. Nonrevenue Landing means any aircraft landing by Airline at the Airport for a flight for which Airline receives no revenue and shall include irregular and occasional ferry and Emergency Landings. Non-Signatory Airline means a Scheduled Air Carrier that is operating under a NonSignatory Airline Operating Agreement. Passenger Boarding Bridge ("PBB") means any passenger boarding bridge from which passengers exit the Terminal Building after DBO of the Concourse A Project. Passenger Facility Charge ("PFC") has the meaning ascribed to it in 49 USC 40117, as may be amended or any successor law authorizing similar fees. Person includes a partnership,joint venture, association, corporation, limited liability company, trust or other entity, or, where the context so permits or requires, a natural person. Preferential Use means the unrestricted, higher and continuous (but not exclusive) priority of use over all others. Preferential Use Premises means those portions of the Terminal Building leased to Airline, through the Premises Notice, for Airline's Preferential Use, as more particularly identified in the attached Exhibit"B and Exhibit"C". Preferential Use Gate means a Gate assigned by the Airport Director, to the Airline or another Scheduled Air Carrier, as Preferential Use Premises in accordance with Article 4. Preferential Use Ticket Counter means the space in the Terminal Building for the processing of passengers and their baggage, together with associated queuing space, as Final Version 1 141 NonSignatory Airline Operating Agreement—EYW assigned by the Airport Director to the Airline or another Scheduled Air Carrier as Preferential Use Premises. Premises Notice means the document included in Exhibit"C", issued by the Airport Director to Airline to designate Airline's Exclusive Use Premises and Preferential Use Premises. Public Space means all utility rooms, ductways,janitorial rooms and closets, stairways, hallways, elevators, escalators, entrance-ways, public lobbies, public toilet areas including animal relief areas and other areas used for the operation, maintenance or security of the Terminal Building, even if used solely by County, as shown in the attached Exhibit"B and Exhibit"C". Rate and Fee Schedule means the Rate and Fee Schedule attached hereto as Exhibit"E" —Rate and Fee Schedule. Remain Over Night (RON) shall mean the period of time an aircraft may park at assigned Aircraft Parking Position that begins when any aircraft goes out of service for the day and ends after the departure of aircraft's first flight of the day. Rental Credits shall mean any credit value applied to the amount invoiced Airline, for accounting adjustments. Requesting Airline has the meaning set forth in Article 16. Revenue Landing means any flight that lands at the Airport for which Airline receives revenue; provided, however, an Emergency Landing shall not be considered a Revenue Landing. Revenues means income and revenue derived by Key West International Airport in connection with the operation of the Airport, as the term "Revenues" is further defined, limited and determined in accordance with the Bond Governance Documents. The term "Revenues" shall not include PFCs, CFCs, insurance proceeds, restricted land sale proceeds or any local, state or federal assistance, or any interest earned thereon. Section refers to the individual sections of this Agreement contained in each Article. Security Deposit has the meaning set forth in Article 7. Scheduled Air Carrier means a Commercial Air Transportation Company performing or desiring to perform, pursuant to published schedules, Commercial Air Transportation Services over specified routes to and from Airport and holding any and all necessary authority to provide such Commercial Air Transportation Services from all appropriate federal and state agencies. Final Version 1151 NonSignatory Airline Operating Agreement—EYW Signatory Airline means a Scheduled Air Carrier that has executed a Signatory Airline Agreement with the County. Term shall mean the term as provided in Article 3. Terminal Building or Terminal means the commercial airline terminal facilities at the Airport. Terminal Cost Center has the meaning set forth in the Rate and Fee Schedule. Terminal Rental Fees means Revenues received from Commercial Air Transportation Companies for the lease and use of Airline Premises. TSA means the Transportation Security Administration of the Department of Homeland Security and its authorized successors. Turn means the arrival and departure of an aircraft from a Gate. The movement of an empty aircraft to or from a Gate shall not constitute a Turn, unless said movement is immediately (a)followed by the enplaning of passengers or(b)preceded by the deplaning of passengers. Duration of a Scheduled Air Carrier Turn will be no more than ninety (90) minutes including fifteen (15) minutes before arrival of scheduled flight and fifteen (15) minutes after departure of scheduled flight. Final Version 1 161 NonSignatory Airline Operating Agreement—EYW ARTICLE 2— STATEMENT OF INTENT The County represents that the County's objectives and intentions are, through the Airport, to: A. Offer all Commercial Air Transportation Companies desiring to serve the Airport region access to the Airport and to maximize the utilization of gate positions and space at the Airport. B. To achieve, in its reasonable judgment, an enhanced capacity and more balanced utilization of Terminal Building and Airfield. To accomplish these objectives, the County intends to and does reserve to itself the right to reassign, reallocate, re-designate, relocate or recapture all or any portion of the Airline Premises in any manner and upon any basis provided for in this Agreement in accordance with Article 4, Article 15, and Article 16 within. Final Version 1 171 NonSignatory Airline Operating Agreement—EYW ARTICLE 3—EFFECTIVE DATE AND TERM This Agreement shall become effective upon receipt of the Letter of Authorization by the Airline and County ("Effective Date") and will remain in effect until Airline or County gives notice to terminate this Agreement as described in Article 4. Final Version 1181 onSinatory Airline Operating Agreement-- EY LetterARTICLE 4— IREMENTS TO OCCUPY AND USE AIRLINE PREMISES iai Prior to occupying and using space in the Terminal Building or otherwise engaging in Air Transportation Business at the Airport, an Airline must present satisfactory evidence to the Airport Director meets the requirements of this Agreement, including, without limitation, insurance requirements and Security for Performance requirements established by the County i Article 7 of this Agreement for engaging in an Air Transportation Business at the Airport. Upon satisfaction of above paragraph, Airline will obtain from the Airport Director, a Letter of Authorization to conduct its Air Transportation Business and to occupy space in the Terminal Building on a month-to-month occupancy. An Airline's submittal of satisfactory evidence o insurance and receipt of the Letter of Authorization shall be deemed to constitute acceptance by the Airline of all terms and conditions of this Agreement. Any permission granted by County, directly or indirectly, expressly or by implication, to any person, firm or corporation to enter upon or use the Airport or any part thereof is conditioned upon and subject to compliance with Airport Rules and Regulations, and entry upon or into the Airport by any person, firm, or corporation shall be deemed to constitute an agreement by said party to comply with such Airport Rules and Regulations. Letter of Authorization will be automatically renewed each month if an Airline is i compliance with the provisions of this Agreement and the Airport Rules and Regulations of the County, as the same may be amended from time to time in the sole discretion of the County. I the event that Airline violates any of the provisions of this Agreement or the Airport Rules and Regulations of the County, the Airport Director may terminate the Letter of Authorization at the end of the current month by providing no less than fifteen (15) days' notice to the Airline of non- renewal. An Airline may terminate a Letter of Authorization by providing notice to the County o less than fifteen (15) days prior to the end of the current month. If not terminated, a Letter o Authorization will automatically be renewed on its monthly anniversary date. The Department grants, to Airline, subject to Article 4 of this Agreement, the right to use the Exclusive Use Premises, Preferential Use Premises and Joint Use Premises identified in Exhibit " and Exhibit"C" for the conduct of its Commercial Air Transportation Services at the Airport. County shall operate, through the Department, the Airport, i.e. runway, taxiways, airfield lighting, and other airfield support systems, properly in a sound, efficient and, self-sustaining manner and in accordance with the regulations of 49 CFR Part 139 and 49 CFR Part 152. Airline acknowledges that, ( ) the Department has estimated the square footage of all Exclusive Use Premises, Preferential Use Premises and Joint Use Premises as presented in the attached Exhibit" "and Exhibit"C", (b) the Department has issued a Premises Notice to Airline that reflects Airline's Exclusive Use Premises and Preferential Use Premises as presented in the Final Version 1191 NonSignatory Airline Operating Agreement—EYW attached Exhibit"B" and Exhibit"C", and (c) Airline has, by acceptance of the Letter Authorization, accepted said Premises Notice. Exclusive Use Premises Exclusive Use Premises at the Airport are presented in the attached Exhibit"B" and Exhibit"C" and include the following types of space, which are used solely by one Scheduled Air Carrier: a. Ticket Offices b. Operations Offices c. Baggage Service Offices Preferential Use Premises Preferential Use Premises at the Airport are presented in the attached Exhibit"B" and Exhibit "C" and include the following types of space, which are generally used solely by one Scheduled Air Carrier: a. Gate Podium i b. Ticket Counter and Ticket Queuing c. Operations space excluding Operations Offices d. Any other space used solely by Airline. Department shall maintain the right, at the sole discretion of the Airport Director, to assign the location of Preferential Use Premises. The Department hereby grants Airline the Preferential Use of the Preferential Use Premises as presented in the attached Exhibit"B and Exhibit"C". Assignment of Preferential Use Gates and Aircraft Parking Positions is restricted to Signatory Airlines. Assignment of Preferential Use Gates to NonSignatory Airlines is subject to the Accommodation of Air Transportation Companies as described in Article 16. Scheduled Air Carriers, which are not Signatory Airlines may not be assigned Preferential Use of Gates. Use of Gates Not Assigned on a Preferential Use Basis 1 Airport will provide standard millwork.Airline will be required to install proprietary equipment at Preferential Use Gates prior to DBO of Concourse A Project. Z Airport will provide standard millwork.Airline will be required to install proprietary equipment at Ticket Counters assigned on a Preferential Use Basis prior to DBO of Concourse A Project. Final Version 1201 NonSignatory Airline Operating Agreement—EYW Any Gate that is not assigned as a Preferential Use Gate ("Non-Preferential Use Gate") may be utilized by a Scheduled Air Carrier, when available, and subject to the Airport Director's assignment. Use of a Non-Preferential Use Gate will be subject to the Rates and Fees identified in Exhibit"E". Airport Director will give priority for usage of one or more specific time slots ("Requested Time Slot") on a Non-Preferential Use Gate to Signatory Airlines that have been assigned one or more Preferential Use Gates and have a flight, which has operated at the Requested Time Slot that has been operated by the Signatory Airline for no less than the preceding twelve months. Airline's Right to Remain Over Night(RON) Priority to RON on an Aircraft Parking Position will be given to the Signatory Airline assigned to each Preferential Use Gate. Requests to RON on any unoccupied Aircraft Parking Positions will be determined at the sole discretion of the Airport Director and preference will be given to Signatory Airlines. Joint Use Premises Joint Use Premises at the Airport are presented in the attached Exhibit"B and Exhibit"C" and include the following types of space, which are generally used jointly by two or more Scheduled Air Carriers: a. Conveyor systems beginning at the Ticket Counter and devices for baggage make up and baggage claim activities. b. Outbound baggage and inbound baggage claim carousels. c. Holdroom space including flooring, and chairs, but excluding any other equipment or furnishings required by Airline for its operations hereunder such as counter inserts. d. TSA Passenger Screening Checkpoint and queuing. e. Any other space used jointly by two or more airlines. Condition of Airline Premises and Airport With the exception of those facilities and fixtures that Department is required to maintain and repair hereunder, Airline expressly acknowledges that it has inspected the Airline Premises, including, but not limited to, all finishes, furniture, fixtures and equipment therein, and accepts the same "As Is" in the condition existing as of the Effective Date. Airline further acknowledges that Department has made no representations or warranties of any nature whatsoever regarding the Airport or the Airline Premises including, but not limited to, the physical and/or environmental condition of the Airline Premises, or any improvements located thereon, or the value of the Airline Premises or improvements thereto, their zoning, or the suitability of the Final Version 1211 NonSignatory Airline Operating Agreement—EYW Airline Premises, or any improvements thereto, or Airline's legal ability to use the Airline Premises or Airport for Airline's intended use. Department will repair any and all facilities and fixtures designated as Airline Premises under this Agreement for which Airline has inspected and requires improvement prior to the Effective Date. Department will repair any facilities and fixtures that have been built by the County as part of new Airline Premise under this Agreement and does not pass Airline inspection prior to utilization of said facilities and/or fixtures within six months. Short-Term Facilities Use Permit In the event Airline requires additional space such as ticket counter or office space on a short- term basis or for seasonal operations at the Airport, Airline may notify Department in writing of the: (a)type and amount of space required for its operations; (b)the anticipated date Airline will commence use of the space; and (c)the anticipated date Airline will return the space. Airline should provide Department reasonable advance notice prior to its proposed commencement of operations of its space requirements. In the event appropriate space is available, Department will notify Airline in writing of the available space and provide the attached Exhibit"F" - "Facilities Use Permit" to Airline for approval. In the event Airline approves of the space(s) designated for Airline's use under a Facilities Use Permit("Short-Term Facilities), Airline shall cause an authorized representative of Airline to sign and return the Facilities Use Permit to the Department. Use of the Short-Term Facilities by Airline shall be subject to the same terms and conditions of this Agreement as the Airline Premises including but not limited to the following. A. Airline shall pay County all fees and charges applicable to the Short-Term Facilities identified in a Facilities Use Permit in accordance with the then current Rate and Fee Schedule. B. Either party may terminate a Facilities Use Permit for convenience upon fifteen (15) days prior written notice to the other party, whereupon Airline shall return space to its original condition and the parties shall be relieved of all further obligations hereunder with the exception of those obligations accruing prior to the date of such termination and those obligations which expressly survive termination of this Agreement. C. Unless otherwise provided for in the Facilities Use Permit, Airline acknowledges and agrees that the Short-Term Facilities shall be leased to Airline on a Preferential Use basis, and Airline shall be responsible for providing, at Airline's sole cost and expense, any cabling, electrical connections, branding, fixtures and equipment necessary for its operations within the Short-Term Facilities. Final Version 1221 NonSignatory Airline Operating Agreement—EYW D. Upon the expiration or earlier termination of the Facilities Use Permit, Airline shall surrender the Short-Term Facilities to County in accordance with the provisions of Article 14 of this Agreement. Final Version 1 23 1 NonSignatory Airline Operating Agreement-EYW ARTICLE 5 - USE OF AIRPORT AND RELATED FACILITIES Rights and Privileges Use of the Airport Airline, its Affiliates, employees, passengers, guests, patrons, and invitees shall have the right to the use (in common with other duly authorized users) of the Airport and its appurtenances, together with all facilities, improvements, equipment, and services that have been or may hereafter be provided for common use at, or in connection with, the Airport, subject to the Airport Rules and Regulations and any applicable laws and any other requirements as set forth herein. Such Rules and Regulations will be reasonable, not in conflict with the terms of this Agreement or any applicable laws, and in case of new or revised Airport Rules and Regulations, County shall provide Airline with a reasonable opportunity to comment on said requirements prior to final promulgation. Specific Rights of Airlines at the Airport A. Airline shall have the right, in addition to all rights elsewhere granted in this Agreement, subject to the Airport Rules and Regulations, County ordinances, and all applicable laws, to use the Airport for the following purposes. All rights and privileges not specifically granted to Airline for their use of and operations at the Airport pursuant to this Agreement are reserved for and to County. B. The operation of Commercial Air Transportation Services by aircraft for the carriage of persons, property, cargo and mail for compensation or hire, on a reasonable and not unjustly discriminatory basis, including all activities reasonably necessary to such operation. C. The landing, taking off, flying over, taxiing, pushing, towing, loading, unloading, repairing, maintaining, conditioning, servicing, parking, storing, and testing of aircraft, or other equipment of, or operated by Airline, or other FAA certificated Commercial Air Transportation Companies with which the County has an applicable agreement, including the right to provide or handle all or part of the operations or services of such other companies, all of which are subject to the Airport Rules and Regulations. D. The sale of tickets, documentation of shipments, handling of reservations, and the loading and unloading of persons, property, cargo and mail at the Airport by such motor vehicles or other means of conveyance as Airline may desire to use in the operation of its Commercial Air Transportation Services, or that of other certificated Commercial Air Transportation Companies with which County or Department has an agreement E. The training of persons and testing of aircraft and other equipment at the Airport, such training and testing to be limited to that incidental to Airline's or an Affiliate's Commercial Air Transportation Service. Final Version 1241 NonSignatory Airline Operating Agreement—EYW F. The purchase of Airline's or an Affiliate's requirements of personal property or services including fuel, lubricants, food, beverage, and other passenger supplies used by Airline or an Affiliate from any person or company of Airline's or an Affiliate's choice authorized to do business at the Airport, and the making of agreements with any person or company of Airline's or an Affiliate's choice for services to be performed by Airline that are incidental to the operation of Airline's or an Affiliate's Commercial Air Transportation Services. Nothing herein shall restrict Director of Airports from levying a reasonable and non-discriminatory concession fee on any person or company providing property or services to Airline or an Affiliate that are not incidental to Airline's or an Affiliate's Commercial Air Transportation Services. G. The servicing by Airline or an Affiliate, or by its suppliers of materials or its furnishers of services, of aircraft and other equipment operated by Airline or an Affiliate with line maintenance or other materials or supplies, at its assigned Aircraft Parking Areas or other Aircraft Parking Areas designated by the Department. Department reserves the right at any time to designate other locations, reasonably accessible from the Terminal Building for performance of aircraft maintenance and service activities if Department believes that such activities would interfere with aircraft operations of other airlines. H. The installation, maintenance, and operation, at no cost to County, of necessary radio, meteorological, and aerial navigation equipment and facilities at suitable locations on the Airport as may be necessary or convenient in the opinion of Airline for its operations; provided that: 1. The location of such equipment and facilities shall be subject to the prior written approval of the Airport Director which approval shall not be unreasonably withheld. 2. The use and location of such equipment and facilities shall not conflict with other similar equipment and facilities on the Airport. I. The installation, maintenance and operation of computer data lines, telephone communications equipment and associated conduits, and telephone communications switchgear and support computers at suitable locations on the Airport, as may be necessary or convenient in the opinion of Airline for its operations; provided that: 1. The location of such equipment shall be subject to the prior reasonable and nondiscriminatory written approval of the Airport Director, if such location is not included in Airline's Exclusive Use Space. 2. The use and location of such equipment shall not conflict with other similar equipment on the Airport. J. In order to maximize the utilization of holdroom check-in podiums, holdroom areas and other passenger facilities in the Terminal Building, Department reserves the right, but is not hereby obligated, to install and require Airline to use common use gate information Final Version 1 25 1 NonSignatory Airline Operating Agreement—EYW display technology or equipment(not to include Airline's customer service automation equipment). Until such time as Department may install such equipment, Airline may install, at Airline's cost, signage at the podium in the holding room of the Gate(s) assigned to Airline or other locations approved by Department. Department shall reasonably establish standards or guidelines regarding the dimensions, materials, and content of signage and the method of attaching the signage to the designated location. Any signage installed by Airline shall be at the risk of Airline. In the event that Airline shall be no longer assigned the use of the Gate(s), then, upon the request of the Department, Airline shall promptly remove such signage at Airline's expense. K. The provision of baggage porter skycap service and curbside airline baggage check-in services in the public areas of the Terminal Building. Airline may arrange with other airlines to provide such services or may provide such services on its own behalf. L. The rights and privileges granted Airline under this Agreement with respect to the performance of ground services and activities in connection with its Commercial Air Transportation Services at the Airport may be exercised by Airline only for and on behalf of Airline for a regularly scheduled or unscheduled Commercial Air Transportation Service. Airline may, subject to the prior written approval of the Airport Director, perform ground services for any Commercial Air Transportation Company using the Airport provided that such other company has executed an operating agreement with or has obtained an operating permit from Department and further provided that such other company agrees to report its activity or arranges to have Airline report its activity in the manner described in this Agreement. M. A Commercial Air Transportation Company may not conduct or permit the sale or other distribution of food or beverages to passengers in the Terminal, without the approval of the Airport Director; provided, however, that in the event of irregular operations causing flight delays, an Air Carrier may provide snacks and nonalcoholic beverages to its customers without cost; provided, however, that if such privilege is abused in the sole judgment of the Airport Director, such privilege may be withdrawn. N. Such other uses and operations that are ancillary or related to the uses listed above. Affiliates Subject to the terms and conditions of this Agreement, Airline may allow Affiliates to exercise the rights and privileges afforded to Airline under this Agreement. In the event Airline desires to allow an Affiliate to exercise the rights and privileges afforded to Airline hereunder, Airline may designate a Commercial Air Transportation Company as an Affiliate using Exhibit"J" and Requirements, which shall be signed by a representative of Airline having the authority to make such designation on behalf of Airline. Airline must also designate in writing using Exhibit"J" of this Agreement to the Department to terminate such Affiliate status of an Air Transportation Company. Termination of an Affiliate of Airline will not occur until Airline notifies the Department in writing and such termination will be effective as of the date of such notification. Final Version 1261 NonSignatory Airline Operating Agreement—EYW Affiliates shall have the rights afforded Airline without payment of any additional charges or premiums, provided Airline (a) agrees to operate under this Agreement; (b) agrees to be billed for Affiliate's activity at the Airport; and (c) agrees and shall be obligated to serve as a financial guarantor for all rentals, fees, and charges incurred by any Affiliate of Airline at the Airport. Airline shall be responsible for any and all unpaid rentals, fees, and charges of any such Affiliate while such Affiliate operates at the Airport as an Affiliate of Airline; provided however, Airline shall only be responsible for such payments as relate to any terminated Affiliate's operations before such termination as an Affiliate of Airline took effect. Affiliate will not be deemed a separate airline. Airline acknowledges and agrees that Affiliates shall be subject to the same terms, conditions and obligations of Airline, including, but not limited to, the insurance requirements set forth in Article 13, and that Airline shall be responsible for ensuring compliance with this Agreement by its Affiliates. Airline shall cause its Affiliates to provide Department with any information or documentation reasonably requested by Department hereunder related to such Affiliates' operations at the Airport. Limitations on Use by Airline In connection with the exercise of its rights under this Agreement, Airline shall not: A. Do, or permit to be done, upon the Airport any act or thing within its reasonable control, that will invalidate or conflict with any fire or other casualty insurance policies (copies of which, together with premium schedules, shall be furnished to Airline on request) covering the Airport or any part thereof. B. Do, or permit to be done upon the Airport, any act or thing within its reasonable control that will be in conflict with Federal Aviation Regulations Part 139 or jeopardize the Airport's operating certificate. C. Do, or permit to be done, any act or thing within its reasonable control in conflict with the Airport's security plan. D. Do, or permit to be done, any act or thing within its reasonable control in conflict with or in violation of the Airport's Rules and Regulations. E. Do, or permit to be done, at the Terminal Building area heavy maintenance (i.e., engine changes, control surface replacements, overhauls)within Airline's control unless consented to by the Airport Director and, providing that suitable, accessible space is available for such purpose. F. Do, or permit to be done, any violation of the state or federal statutes, rules or regulations or any applicable laws. Final Version 1271 NonSignatory Airline Operating Agreement-EYW ARTICLE 6-REPAIR AND MAINTENANCE Designation of Maintenance Responsibilities. Department of Airports shall use good faith efforts to operate the Airport properly in a sound, efficient and economical manner and in accordance with the regulations of 49 CFR Part 139 and 49 CFR Part 1542. The Airline's and County's responsibilities for maintenance, cleaning, and operation of the Airline Premises are set forth in the Maintenance Schedule presented in Exhibit"D". Airline agrees to perform the obligations set forth in the Maintenance Schedule that are assigned to Airline, and County agrees to perform the obligations set forth in the Maintenance Schedule that are assigned to County. Final Version 1281 NonSignatory Airline Operating Agreement—EYW ARTICLE 7 - PAYMENT OF FEES AND CHARGES Payment. Airline shall pay to County all applicable fees and charges set forth in the Rate and Fee Schedule presented in Exhibit"E" for the rights, leases and privileges granted hereunder to Airline at rates applicable to NonSignatory Airlines calculated by County in accordance with the methodologies set forth in the Rate and Fee Schedule. Airline agrees to pay to County reasonable and nondiscriminatory fees and charges for any other services or facilities provided by County or its contractors, which are not specifically provided for in this Agreement, and accepted or requested by Airline. Payments due to County from Airline hereunder shall be paid in lawful money of the United States of America, by check or electronic payment to Monroe County, without any deduction, holdback or set off whatsoever, and shall be made at such places as County may designate in writing to Airline, which as of the Effective Date shall be as follows for payments by mail: Attn: Airport Director Key West International Airport 3491 South Roosevelt Blvd. Key West, FL 33040 For payments by wire or other electronic funds transfer, Airline shall contact the Airport Administration Office for further information. Payment for the use of the Exclusive Use, Preferential Use Premises and Passenger Boarding Bridge Fees shall be due in advance, without demand or deduction, in equal monthly installments on the first(1st)Business Day of each month. Payment of fees and charges that are based upon Airline's monthly activity, including, but not limited to, Landing Fees, Security Reimbursement Charges, and Passengers Facility Charges, shall be due within thirty (30) days of the receipt of County's invoice. Payment of all other amounts due hereunder, including, but not limited to, fees for use of the Joint Use Premises and other miscellaneous charges, shall be due within thirty (30) days of the date of County's invoice. The Department, in its sole discretion, may elect to assess late fees using an interest rate of one- and one-half percent(1'/2%)per month which shall accrue against any and all delinquent payment(s)from the date due until the date payment is received by County. To the extent permitted by law, this provision shall not preclude County from terminating this Agreement for Airline's default in the payment of fees or charges, or from enforcing any other provisions contained herein or provided by law. Final Version 1291 NonSignatory Airline Operating Agreement—EYW Acceptance by County of any payment from Airline shall not preclude County from verifying the accuracy of Airline's reports on which Airline's fees and charges are based as provided in this Article and shall not be deemed a waiver of any interest penalty due. In the event the Effective Date or termination date of Airline's use of the Exclusive Use Premises or Preferential Use Premises, or any portion thereof, occurs on any date other than the first(1st) or last day of a calendar month, the fees and charges applicable to Airline's use of the Exclusive Use Premises or Preferential Use Premises, or portion thereof, for that month shall be paid on a pro rata basis based on the number of days in that month. Activity Report No later than the tenth (IOth) calendar day of each month, Airline shall electronically file an accurate and complete Activity Report on the form set forth in Exhibit"G' -Activity Report with County, which contains the information required therein for the preceding month. In the event Airline fails to provide the Activity Report, within the time period specified herein, or if the data contained in the Activity Report appears to be inaccurate, County may, based on previous reports or other information available to County, estimate Airline's activity for the preceding month and issue invoices based on County's estimation. Airline shall be liable to County for any deficiencies in payments based upon such estimates. If such estimates result in an overpayment by Airline, County shall remit, or at County's option credit, such overpayment to Airline. Public Access The Airline and County shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Airline in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by Airline. Audit Airline shall maintain and keep books, ledgers, accounts, or other records, accurately recording the total number of Revenue and Nonrevenue Landings at the Airport, the Landed Weight of each aircraft, the total number of Enplaned Passengers and Deplaned Passengers, the total weight of cargo/freight loaded and unloaded, and all other traffic and activity statistics to be recorded or reported hereunder. Such books, ledgers, accounts, and records related to Airline's operations at the Airport shall be made available in electronic format or otherwise in Monroe County for a period of seven (7)years from the termination of this Agreement or for a period of three (3) years subsequent to the activities reported therein, whichever is greater. In the event such books, ledgers, accounts and records are made available in an electronic format, they shall be certified by an officer of Airline. County or its duly authorized representative(s) may examine any and all such books, ledgers, accounts and records during all reasonable business hours, in Airline's offices or such other Final Version 1301 NonSignatory Airline Operating Agreement—EYW place as mutually agreed to between Airline and County. Upon County's written request for examination of such books, ledgers, accounts and records, Airline shall produce such items in Monroe County within thirty (30)Business Days of County's request or pay all reasonable expenses, including, but not limited to, transportation, food, and lodging, for County's auditor(s) and their representative(s)to perform the audit outside Monroe County. The cost of an audit outside of Monroe County, with the exception of the aforementioned transportation, food and lodging expenses, shall be borne by County; provided, however, that the full cost of the audit shall be borne by Airline if either or both of the following conditions exist: A. The audit reveals an underpayment of more than ten percent(10%) of the fees and charges due hereunder, unless such underpayment is the result of a miscalculation by County of the fees and charges payable; or B. Airline has failed to maintain true and complete books, ledgers accounts and records, and supportive source documentation in accordance with the requirements of this Section. Any underpayment of amounts due County disclosed as a result of an audit conducted pursuant to this Article, including interest computed from the original due date of each such amount due shall be paid to County within thirty (30) days from receipt of County's invoice. Such payment by Airline shall not abrogate Airline's right to contest the validity of said underpayments. Any valid overpayments made by Airline shall be promptly remitted, or at County's option, credited to Airline. Irrevocable Letter of Credit Airline shall provide County with a clean, irrevocable letter of credit, ("Security Deposit")in an amount equal to County's estimate of three (3) months' fees and charges payable by Airline hereunder, to guarantee the faithful performance by Airline of its obligations under this Agreement and the payment of all fees and charges due hereunder. The Security Deposit shall be provided to County prior to the Effective Date. The Security Deposit shall be in a form and issued by a company reasonably acceptable to County. In the event that any such Security Deposit shall be for a period of less than the full period required by this Agreement, or if the Security Deposit may be canceled, Airline shall provide a renewal or replacement Security Deposit at least sixty (60) days prior to the later of: (1)the date the Security Deposit expires, or (2)the effective date of cancellation of the Security Deposit; unless otherwise approved by the Department in its sole discretion. Security Deposit may be waived by the Airport Director in its sole discretion for Airline if it has operated for at least twelve consecutive months and has been current in payment of all fees and charges for the immediate twelve months preceding execution of this Agreement. Notwithstanding any provision of this Agreement to the contrary, failure to maintain the Security Deposit as required herein shall be grounds for termination of this Agreement. Final Version 1311 NonSignatory Airline Operating Agreement—EYW Passenger Facility Charges County shall have the right to assess and collect Passenger Facility Charges in accordance with applicable laws and regulations. Proceeds of Passenger Facility Charges shall be used for projects which have been approved through the procedures established by the FAA. No Further Charges Except as otherwise provided for in this Agreement, no further fees or charges shall be charged against or collected from Airline, its passengers, its shippers and receivers of freight, its suppliers of material, its contractors or furnishers of services, by County, acting in its capacity as Airport proprietor, not in its governmental capacity, for the premises, facilities, rights, licenses, and privileges granted to Airline in this Agreement. Accord and Satisfaction In the event Airline pays any amount that is less than the amount stipulated to be paid under this Agreement, such payment shall be considered to be made only on account of the stipulated amount. No endorsement or statement on any check or letter shall be deemed an accord and satisfaction. County may accept any check or payment without prejudice to County's right to recover the balance due or to pursue any other remedy available to County pursuant to this Agreement or under the law. Final Version 1321 NonSignatory Airline Operating Agreement-EYW ARTICLE 8 -ADJUSTMENT OF RATES Rates for fees and charges payable hereunder shall be adjusted annually by County in accordance with the methodology set forth in Exhibit"E". Annual adjustments shall become effective each October 1 st throughout the Term of this Agreement. In addition to the annual adjustment provided for in this Article, rates for fees and charges may also be adjusted by County if at any time financial data indicates that the total fees and charges calculated in accordance with the Rate and Fee Schedule are reasonably estimated by County to vary by more than ten percent (10%)from the total fees and charges that would be payable based upon the use of actual financial data to date for the Fiscal Year. County shall prepare and deliver to Airline a statement showing the adjusted rates for fees and charges payable hereunder calculated in accordance with the Rate and Fee Schedule ("Statement of Rates"). Annual Adjustment. On or about September 1 st of each Fiscal Year, County shall deliver the Statement of Rates to Airline for the next Fiscal Year. County Covenants County covenants that for purposes of allocating Revenues and expenses that it will include only those charges properly attributable or allocable to the Airport. County shall use good faith efforts to operate the Airport in a manner so as to produce Revenues from concessionaires, tenants, and other users of the Airport at levels that would be produced by a reasonably prudent operator of an airport of substantially similar size, use, and activity, with due regard for the interests of the public. Final Version 1331 NonSignatory Airline Operating Agreement—EYW ARTICLE 9 - CAPITAL EXPENDITURES The parties hereto recognize that Capital Expenditures to preserve, protect, enhance, expand, or otherwise improve the Airport, or any portion thereof, may be required during the Term of this Agreement. Department will present to Airline the Capital Expenditures expected to be undertaken in the upcoming Fiscal Year at the Annual Budget Meeting. Final Version 1341 NonSignatory Airline Operating Agreement-EYW ARTICLE 10 -AIRLINE IMPROVEMENTS Installation of Signs/Displays Airline, at its sole cost and expense, shall have the right to install identification and informational signs regarding Airline's Commercial Air Transportation Services on and in the public areas of the Terminal Building. Signs shall be reasonably similar in size, type and location with those of all other Commercial Air Transportation Companies operating at the Airport in accordance with all general standards established by Department. The number, type, size, design and location of all signs shall be subject to the prior written approval of Department, which approval shall not be unreasonably withheld. Airline acknowledges and agrees that Department shall have no obligation whatsoever to approve usage of temporary signage such as banners, placards, or A- frame signs within the public areas of the Airport; the installation of signage or displays within areas of the Airport under the contractual control of others; the installation of advertising signage or displays within the public areas of the Airport; or religious, political or any other displays or signage unrelated to Airline's Commercial Air Transportation Services at the Airport Installation of Equipment. Airline may install, operate and maintain radio communication, meteorological and aerial navigation equipment and facilities within its offices or such other areas within the Airport licensed to Airline for such purposes. All equipment and facilities installed pursuant to this Section shall be in compliance with all applicable laws, rules, regulations and orders. Airline may install, operate and maintain communications systems, computer networking systems, teletype, telephone, interphone, conveyor systems and power lines, which are reasonably required by Airline for the provision of its Commercial Air Transportation Services, in and between the Preferential Use Premises, Exclusive Use Premises and Terminal Building as approved by Department of Airports, which approval shall not be unreasonably withheld by Airport Director. Airline may install, operate and maintain the equipment provided for in this Section alone or in conjunction with other Commercial Air Transportation Companies operating at the Airport pursuant to an agreement with County. Any equipment installed, operated or maintained by Airline pursuant to this Article shall be at Airline's sole cost and expense. Airline shall obtain the prior written approval of Director of Airports prior to installing or modifying any wireless communication system, which approval shall not be unreasonably withheld. Installation of Improvements Airline shall have the right to construct and install improvements to the Exclusive Use Premises or Preferential Use Premises as Airline reasonably deems to be necessary for the operation of its Commercial Air Transportation Services subject to the terms and conditions of this Agreement. Airline shall obtain prior written approval of Director of Airports for any improvements to be Final Version 1351 NonSignatory Airline Operating Agreement—EYW constructed or installed in the Exclusive Use Premises or Preferential Use Premises, including associated plans and specifications and construction schedule(s), prior to construction or installation of the improvements, which approval shall not be unreasonably withheld. Airline may also be permitted to construct and install improvements in other areas of the Airport subject to the prior written consent of the Director of Airports and with consultation with other Commercial Air Transportation Companies impacted by such construction/installation, which consent may be granted or withheld in Director of Airports sole discretion. Except as otherwise provided for in this Article, any improvements constructed or installed by Airline shall be at Airline's sole cost and expense. Construction Bonds Airline shall cause all improvements to be constructed to completion in accordance with the approved plans and specifications and ensure that all Persons performing work or providing materials relating to such improvements including, but not limited to, all contractors, subcontractors, laborers, materialmen, suppliers and professionals, are paid in full for such services and materials. Prior to the commencement of any improvements, the estimated cost of which exceeds Fifty Thousand Dollars ($50,000), Airline, at its sole cost and expense, shall cause to be made, executed and delivered to County a bond for the estimated cost of the improvements, drawn in a form and issued by a company reasonably acceptable to County, guaranteeing compliance by Airline of its obligations arising under this Section. In lieu of the bond required by this Section, Airline may file with County an alternative form of security for the estimated cost of the improvements in the form of a clean irrevocable letter of credit provided, however, the form of the security and company issuing such security, if applicable, shall be subject to the prior written approval of County. Any such alternative form of security shall be for the same purpose and be subject to the same conditions as those applicable to the bond required by this Section. Any such alternative form of security may be reduced by Airline, subject to County's approval, which approval shall not be unreasonably withheld or denied, during the construction of the improvements, but not more than once per month, in an amount equal to the percentage of completion of the improvements multiplied by the original amount of the security. Construction Assurance Prior to the commencement of construction of any Improvements, Airline shall furnish to Director evidence that sufficient monies will be available to complete the Improvements. Such evidence shall represent at least the total estimated cost of construction, and such evidence may take one of the following forms: A. A Performance Bond: to be supplied by Airline's contractor or contractors and issued jointly to Airline and County as Obligee. Airline's contractor or contractors shall also submit to County a Certificate of Insurance as evidence of Workers' Compensation Insurance Coverage; or B. An Irrevocable Letter of Credit: or other form of Banker's assurance issued to County from a financial institution licensed to do business in the State of Florida and covered by Federal Depository Insurance Corporation which shall remain in effect until County acknowledges satisfactory completion of construction of the improvements; or Final Version 1361 NonSignatory Airline Operating Agreement—EYW All Performance Bonds or Letters of Credit shall be reasonably acceptable to County in content and in form and shall ensure faithful performance of the terms and conditions of this Agreement which relate to the construction of the Improvements on the Airline Premises. Any work associated with such construction or installation shall not interfere with the operation of the Airport, Terminal Building or Aircraft Parking Apron, or otherwise unreasonably interfere with the permitted activities of other Airport tenants and users. Within sixty (60) days of substantial completion of improvements by Airline, as evidenced by a certificate of occupancy or completion, Airline shall deliver to Department of Airports a complete set of as built drawings (in hardcopy, PDF and Auto CADD formats). Any and all construction or installation performed by or on behalf of Airline shall be: (1) at the sole risk of Airline; (2) in accordance with all applicable federal, state and local codes, laws, the construction standards established by County, and the approved plans and specifications; and (3) shall be subject to inspection by County. Any improvements that are constructed in violation of this Article shall be removed or reconstructed in accordance with the requirements of this Article at Airline's sole cost and expense. All improvements made by Airline shall be the property of Airline until the expiration or earlier termination of this Agreement, at which time any improvements become the property of County; provided, however, any trade fixtures, equipment, signs and other personal property of Airline, which are not permanently affixed to the Airline Premises, shall remain the property of Airline, except as otherwise provided in Article 14 in the Section entitled"Surrender of Premises". Removal of or changes to any improvements constructed by Airline under the terms of this Agreement shall require the prior written approval of County, which approval shall not be unreasonably withheld or delayed with respect to Airline's Preferential Use Premises. Contractor Requirements Airline shall require contractors to furnish for the benefit of County a public construction bond as required under Section 255.05, Florida Statutes, in a form approved by County. Airline shall require its contractors to name County as a dual obligee on the bond(s). Airline shall also require contractors to furnish satisfactory evidence of statutory Worker's Compensation insurance, comprehensive general liability insurance, comprehensive auto insurance, and physical damage insurance on a Builder's Risk form with the interest of County listed as the certificate holder and additional insured and loss payee as applicable, in such amounts and in such manner as the Risk Management Department may reasonably require. The Risk Management Department may require additional insurance for any alterations or improvements approved hereunder, in such amounts as the Risk Management Department reasonably determines to be necessary. Maintenance of Signs, Equipment, and Improvements Any improvements installed or constructed by Airline pursuant to this Article shall be maintained in accordance with the Maintenance Schedule. In the event the type of improvement to be installed or constructed by Airline is not addressed in the Maintenance Schedule, Airline Final Version 1371 NonSignatory Airline Operating Agreement—EYW shall be responsible for maintenance of the improvement unless otherwise agreed to in writing by the Department. No Liens Airline covenants and agrees that nothing contained in this Agreement shall be construed as consent by County to subject the estate of County to liability under the Construction Lien Law of the State of Florida, it being expressly understood that County's estate shall not be subject to such liability. Airline shall notify any and all Persons performing work for Airline at the Airline Premises or providing materials relating to any improvements made by Airline to the Airline Premises of this provision of this Agreement. If so requested by County, Airline shall file a notice satisfactory to County in the Public Records of Monroe County, Florida, stating that County's interest shall not be subject to liens for improvements made by Airline. In the event that a construction lien is filed against the Airline Premises or other County property in connection with any work performed by or on behalf of Airline, Airline shall satisfy such claim, or transfer same to security, within thirty (30) days from the date of filing. In the event that Airline fails to satisfy or transfer such claim within said thirty (30) day period, County may do so and thereafter charge Airline, and Airline shall promptly pay to County upon demand, as Additional Rent, all costs incurred by County in connection with the satisfaction or transfer of such claim, including attorney's fees. Further, Airline agrees to indemnify, defend, and save County harmless from and against any damage or loss incurred by County as a result of any such construction lien. Title to Improvements Except as otherwise provided for herein, all fixtures and improvements that are constructed or placed upon the Airport Premises, excluding furnishings, equipment and trade fixtures, shall become the absolute property of County upon termination or expiration of this Agreement and County shall have every right, title, and interest therein, free and clear of any liens, mortgages or encumbrances. Final Version 1381 NonSignatory Airline Operating Agreement—EYW ARTICLE 11 - DAMAGE OR DESTRUCTION Airline shall be fully responsible for all damages to buildings, equipment, real property and appurtenances in the ownership or cutody of County; caused by negligence abuse, or carelessness on the part of their employees, agents, customers, visitors, suppliers, or persons with whom they may do business. Final Version 1391 NonSignatory Airline Operating Agreement—EYW ARTICLE 12 - INDEMNIFICATION Airline shall protect, defend, reimburse, indemnify and hold County and the County Parties and each of them free and harmless at all times from and against any and all liability, losses, expenses, costs, suits, claims,judgments, fines and damages (including reasonable attorney fees at trial and appellate levels) and causes of action of every kind and character(hereinafter collectively referred to as, "Damages"), or in which County or a County Party is named or joined, arising out of Airline's or an Airline Party's breach of this Agreement or the use or occupancy of the Airline Premises or Airport by Airline or an Airline Party, including, but not limited to, those arising by reason of any damage to property or the environment, or bodily injury (including death)incurred or sustained by any party hereto, any agent or employee of any party hereto, and any third party or other Person whomsoever, or any governmental agency, arising out of or incident to or in connection with the condition of the Airline Premises, Airline's or an Airline Party's acts, omissions or operations at the Airport, or the performance to the extent caused by Airline or an Airline Party, non-performance or purported performance of Airline or an Airline Party or any breach by Airline or an Airline Party of the terms of this Agreement; provided, however, Airline shall not be responsible for Damages that are determined by a court of competent jurisdiction to be attributable to the negligence or willful misconduct of County or a County Party or a direct result of a breach of this Agreement by County. Nothing herein shall be deemed to abrogate Airline's common law or statutory rights to contribution from County for liability legally established as attributable to County's negligence. Each party shall give to the other reasonable notice of any such claims or actions. Airline recognizes the broad nature of this indemnification and hold-harmless clause, and acknowledges that County would not enter into this Agreement without the inclusion of such clause, and voluntarily make this covenant and expressly acknowledges the receipt of Ten Dollars ($10.00) and such other good and valuable consideration provided by County in support of this indemnification in accordance with the laws of the State of Florida. The obligations arising under this Article shall survive the expiration or termination of this Agreement. Final Version 1401 NonSignatory Airline Operating Agreement—EYW ARTICLE 13 - INSURANCE Insurance Requirements In addition to such insurance as may be required by law or regulation, Airline, at its sole cost and expense, shall maintain in full force and effect throughout the Term of this Agreement the insurance coverages, limits and endorsements required herein. Neither the requirements contained in this Article, nor County's review or acceptance of insurance, shall in any manner limit or qualify the liabilities and obligations assumed by Airline hereunder. A. Aircraft Liability Insurance. Airline shall maintain Aircraft Liability Insurance with respect of all aircraft owned, leased or operated by Airline, including Passenger, Bodily Injury (including death) and Property Damage Liability in a Combined Single Limit Amount of not less than One Hundred Million Dollars ($100,000,000)Each Occurrence. B. Business Automobile Liability Insurance. Airline shall maintain Business Automobile Liability Insurance covering all Owned, Hired, and Non Owned Vehicles used on the Airport in an amount of not less than One Million Dollars ($1,000,000) Combined Single Limit Each Occurrence for Bodily Injury (including death) and Property Damage Liability; provided, however, that if the scope and conduct of Airline's operations under this Agreement require vehicle access to the aircraft operations area, Airline shall maintain Business Automobile Liability Insurance in an amount not less than Five Million Dollars ($5,000,000) Combined Single Limit Each Occurrence for Bodily Injury (including death) and Property Damage Liability. Notwithstanding the foregoing, if the scope and conduct of Airline's operations under this Agreement do not involve the operation, ownership or use of any vehicle, then this requirement shall include automobile liability for Hired&Non-Owned vehicles only. C. Airline Liability/Commercial General Liability Insurance. Airline shall maintain Airline Liability/Commercial General Liability Insurance at limits of not less than: (1)Fifty Million Dollars ($50,000,000)in the event Airline is operating aircraft with fifty (50) seats or less, or (2) One Hundred Million Dollars ($100,000,000)in the event Airline is operating aircraft with more than fifty (50) seats each with a Combined Single Limit Each Occurrence, subject to sub-limits and annual aggregates, where applicable, for Personal Injury (Twenty Five Million Dollar ($25,000,000) sub-limit for Personal Injury to non-passengers), Bodily Injury (including death) and Property Damage and shall include, but not be limited to, Premises and Operations, Personal Injury, Products and Completed Operations, Contractual Liability. In the event Airline is authorized to serve alcoholic beverages on the Airport, Airline shall provide an endorsement to the Airline Liability/Commercial General Liability Insurance or separate coverage for Liquor Liability in an amount not less than One Million Dollars ($1,000,000)per occurrence. D. Workers Compensation Insurance. Airline shall maintain Workers Compensation Insurance applying to all employees for Statutory Limits in compliance with Chapter 440, Florida Statutes and applicable federal laws. Coverage shall include Employers Liability Final Version 1411 NonSignatory Airline Operating Agreement—EYW with minimum limits of One Million Dollars ($1,000,000)Each Accident, One Million Dollars ($1,000,000) Disease Policy Limit, and One Million Dollars ($1,000,000) Disease Each Employee. In the event Airline subcontracts any portion of the work or services under this Agreement to another party, Airline shall be responsible for ensuring its subcontractors maintain Worker's Compensation and Employers Liability Insurance. Waiver of Subrogation Except as provided in Article 11 "Damage Caused by Airline", County and Airline hereby mutually waive any and all rights of recovery against the other party arising out of damage or destruction of the Airport, Airline Premises or any other property from causes included under any property insurance policies to the extent such damage or destruction is covered by the proceeds of such policies but only to the extent that the insurance policies then in force permit such waiver. When required by an insurer, or if a policy condition will not permit an insured to enter into a pre-loss agreement to waive subrogation without an endorsement, Airline shall notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or its equivalent. The foregoing requirements shall not apply to any policy that specifically prohibits such an endorsement or voids coverage if Airline enters into such an agreement on a pre-loss basis. Additional Insured Airline shall endorse County as "Additional Insured" on all liability policies, with the exception of Workers Compensation/Employers Liability, to the extent of Airline's contractual obligations hereunder. The "Additional Insured" endorsements shall provide coverage on a primary basis. The"Additional Insured" endorsement shall read: "Monroe County Board of County Commissioners, a Political Subdivision of the State of Florida, its Officers, and Employees", or as otherwise specified by County's Risk Management Department. The status of the Monroe County Board of County Commissioners, its officers and employees, and any other party as an Additional Insured under Airline's insurance policies shall not afford any such Additional Insured coverage for claims that arise by reason of the willful misconduct or negligence of the Additional Insured. Certificate of Insurance Airline shall deliver to County or County's designated contractor certificate(s) of insurance, evidencing the coverages and amounts required hereunder prior to the Effective Date. The certificate(s) of insurance shall clearly state that Monroe County is an"Additional Insured" as required herein. Certificate(s) of insurance shall also endeavor to provide thirty (30) days written notice to County prior to cancellation (ten (10) days for nonpayment of premium) or non- renewal of coverage. The Certificate Holder address shall read: "Monroe County Board of County Commissioners, a Political Subdivision of the State of Florida, its Officers, and Employees, c/o Key West International Airport, 3491 South Roosevelt Blvd., Key West, FL 33040", or as otherwise approved or modified by County. Notwithstanding any provision of this Agreement to the contrary, Airline's failure to maintain all insurance policies required herein of this Agreement by Airline, shall entitle County to exercise any remedies available to it under this Agreement, at law and in equity, including the right to immediately rescind a Letter of Authorization. County may modify the endorsement language required pursuant to this Article upon written notice to Airline. Final Version 1421 NonSignatory Airline Operating Agreement-EYW Claims-Made Liability When any of Airline's liability insurance policies is provided under a Claims-Made Liability form, Airline agrees to the following additional special conditions: A. The Certificate of Insurance issued to County shall clearly indicate whether the Claims- Made Liability form applies, include the retroactive date of coverage and indicate if the limits are subject to annual aggregate. In the event aggregate limits are applicable, Airline agrees to maintain an aggregate limit not less than three (3)times the"per occurrence" limit of liability required in Sections 12.01 (A)-(C) above. B. Airline shall purchase a Supplemental Extended Reporting Period providing an additional reporting period of not less than three (3) years in the event a Claims-Made liability policy is canceled, non-renewed, switched to an Occurrence Form, renewed with an advanced retroactive date, or any other event triggering the right to purchase a Supplemental Extended Reporting Period during the Term of this Agreement. All insurance policies required hereunder may be written to include a reasonable deductible or self-insured retention, unless otherwise stated or limited. Limits on said deductible amounts may be subject to review and approval. When requested, Airline shall submit a copy of most recent financial statement in order to justify a particular deductible or self- insured retention amount. Umbrella Liability Insurance or Excess Liability Insurance Umbrella or Excess Liability Insurance may be used to reach the limits of liability required for the Airline Liability Policy, Aircraft Liability Policy and Business Automobile Policy. Right to Review Required insurance shall be subject to the review, acceptance, and approval of County, in its reasonable discretion, as to form and types of coverage. County, by and through its Risk Management Department, in cooperation with the Department may reasonably adjust the limits of coverage required hereunder from time-to-time throughout the Term of this Agreement; provided, however, any adjustment to the limits of the required insurance shall be consistent with the limits established by other comparable airports within the United States. All insurance shall be issued by responsible insurance companies, which may be Airline's captive, deemed to be reasonably acceptable to County. County may reject any insurer or self-insurance plan providing coverage because of poor financial condition or failure to operate legally. In such event, County shall provide Airline written notice of such adjusted limits or rejection and Airline shall comply within thirty (30) days of receipt thereof. Airline shall be responsible for any premium revisions as a result of any such reasonable adjustment. The acceptance of delivery to County of any certificate(s) of insurance evidencing the insurance coverages and limits required under this Agreement shall not constitute approval or acceptance by County that the insurance requirements have been met. Final Version 1 43 1 NonSignatory Airline Operating Agreement—EYW Invalidation of Policies Airline shall not knowingly use or permit the use of the Airline Premises for any purpose which would invalidate any policies of insurance, now existing or hereafter written on the Airline Premises or Airport for County or Airline. In the event Airline's acts or failure to act shall cause cancellation of any policy, then Airline shall immediately, prior to notification by County, take such action as is necessary to reinstate or replace the required insurance. Deductibles, Coinsurance & Self-Insured Retention Airline shall be fully and solely responsible for any deductible, coinsurance penalty or self- insured retention, including any losses, damages or expenses not covered due to an exhaustion of limits or failure to comply with the policy. No Representation of Coverage Adequacy Airline acknowledges the limits, coverages and endorsements required by this Article are intended to minimize liability for County. Airline agrees that it will not rely upon the requirements of this Article when assessing the extent or determining appropriate types or limits of insurance coverage to protect Airline against any loss exposures, whether as a result of this Agreement or otherwise. Final Version 1441 NonSignatory Airline Operating Agreement-EYW ARTICLE 14- SURRENDER OF PREMISES Surrender of Premises Airline expressly agrees that it shall immediately surrender the Airline Premises to County in good and fit condition, except as to those portions of the Airline Premises that County is responsible for maintaining or repairing hereunder, upon expiration or earlier termination of this Agreement, depreciation and wear from ordinary use for the purpose for which the Airline Premises were leased being excepted. All repairs and obligations for which Airline is responsible shall be completed by the earliest practical date but in no event later than sixty (60) Business Days after the date of the expiration or termination. Airline shall remove all of its personal property from the Airline Premises in accordance with the requirements in the next section, "Removal of Personal Property". County may require Airline to return the Airline Premises free and clear of some or all improvements made by Airline, at Airline's sole cost and expense; provided that County has notified Airline that County may require removal of such improvements as a part of County's approval pursuant to Article 10 "Installation of Improvements". Notwithstanding the foregoing, the aforementioned notification shall only be required for improvements made by Airline during the Term of this Agreement. In such event, County shall provide written notification to Airline of its election to require removal of Airline installed improvements and, to the extent possible, County shall notify Airline at least sixty (60) days prior to the effective date of such expiration or earlier termination. Airline shall have sixty (60) days from date of County's notice within which to remove the improvements provided, however, Airline shall not be required to remove such improvements prior to the expiration or earlier termination of this Agreement. In the event Airline fails to timely remove the improvements or restore the Airline Premises to good and fit condition as provided above, County may remove the improvements and restore the Airline Premises at Airline's sole cost and expense. Airline shall reimburse County for County's direct labor and material removal and restoration costs plus a twenty five percent(25%) administrative overhead within thirty (30) days of the date of County's invoice. Airline's obligation to reimburse County for removal of improvements pursuant to this Section shall survive the expiration or earlier termination of this Agreement until County has received full reimbursement. County agrees that it shall not require removal of any improvements constructed or installed hereunder by or on behalf of Airline if Airline has entered into a new agreement with County substantially similar to this Agreement, which will become effective upon the expiration or earlier termination of this Agreement; provided that the improvements are in good condition and repair and will be located within the Airline Premises of Airline under the new agreement. Removal of Personal Property Airline shall not abandon any personal property at the Airport without the written consent of County, which consent may be granted or withheld in County's sole and absolute discretion. Any property owned by County that is damaged by or as a result of the removal of property owned by Airline shall be restored by Airline to the condition existing before such damage, at Airline's sole cost and expense. In the event Airline fails to timely restore the damaged property, County may restore the damaged property at Airline's sole cost and expense. Airline shall Final Version 1 45 1 NonSignatory Airline Operating Agreement—EYW reimburse County for County's direct labor and material restoration costs plus a twenty five percent(25%) administrative overhead within thirty (30) days of the date of County's invoice. Any personal property of Airline not removed in accordance with this Section, at the option of County, may be removed and placed in storage by County at the sole cost of Airline, or may become the property of County, all at no cost to County. In the event County does not elect to take ownership of the property, it may dispose of same by either public or private sale and retain the proceeds thereof. Any costs of removal and disposition not covered by such proceeds shall be borne by Airline. Final Version 1461 NonSignatory Airline Operating Agreement—EYW ARTICLE 15 -ASSIGNMENT, SUBLEASING AND HANDLING AGREEMENTS No Assignment or sublease agreement shall release Airline from its obligations hereunder, including, but not limited to, the obligation to pay the fees and charges provided herein. This Article shall be applicable to leases, licenses and any other arrangements by which a third party may obtain any benefits of Airline's rights and privileges hereunder; provided, however, for purposes of clarification and not by way of limitation, this Article is not intended to apply to a Person using the Airline Premises to provide services to Airline. Notwithstanding the foregoing, subject to County's prior written consent, other Commercial Air Transportation Companies having prior arrangements with Airline may use the Airline Premises on a temporary basis pursuant to and in accordance with the provisions of this Article. This Article shall be construed to include a prohibition against any assignment, mortgage, pledge, encumbrance or sublease by operation of law, legal process, receivership, bankruptcy or otherwise, whether voluntary or involuntary. Assignment by Airline Except as otherwise provided for herein, Airline shall not in any manner assign, transfer, mortgage, pledge, encumber, hypothecate or otherwise convey an interest in this Agreement, or any portion of the Airline Premises, without the prior written consent of Airport Director ("Assignment"), which consent may be granted or withheld in Airport Director's sole and absolute discretion. Notwithstanding the foregoing, the consent of Airport Director shall not be withheld for an Assignment of this Agreement in its entirety where all or substantially all of the assets of Airline are acquired by another entity by reason of a merger or consolidation or where the Assignment will be in favor of a corporation controlling, controlled by or under common control with Airline; provided that the successor entity agrees to assume all obligations of Airline hereunder and to comply with terms and conditions set forth in this Agreement. Airline further agrees to provide Airport Director with such documentation relating to the merger or consolidation of Airline and the successor entity as Airport Director requires in its reasonable discretion. Subletting by Airline Airline shall not grant a sublease authorizing a third party to use the Airline Premises, or any portion thereof, without the prior written consent of Airport Director, which consent shall not be unreasonably withheld or delayed. Except in cases of accommodation by Airline of marketing, alliance or regional partners, the parties agree that Airport Director may withhold its consent if County has substantially similar space available that is not under the contractual control of another or if Airport Director can make such space available for use within a reasonable period of time. In the event Airport Director gives its consent to such sublease, Airline acknowledges and agrees that its sublessee shall be required to pay all applicable fees for use of Airline Premises. Use of the Preferential Use Premises, or any portion thereof, by any Person other than Airline or its service providers or Affiliates shall be deemed to be a"sublease" for purposes of this Agreement. Final Version 1471 NonSignatory Airline Operating Agreement-EYW Assignment and Subletting Documents In the event Airline requests permission to enter into an Assignment or sublease, the request shall be accompanied by a copy of the proposed agreement. The portion of the Airline Premises to be subleased and the amount to be charged shall be specified for subleases, and the consideration and parties in interest shall be specified in a request for Assignment. Airline shall promptly provide any other information reasonably requested by Airport Director pertaining to the sublease or Assignment. Airline shall deliver a fully executed copy of such agreement to Airport Director no later than thirty (30) days prior to the occupancy of the Airline Premises, or any portion thereof, by the sublessee or assignee. In the event of a sublease in which the fees and charges for the subleased premises exceed the fees and charges payable by Airline for the subleased premises pursuant to this Agreement, Airline shall pay to County the excess of the fees and charges received from the sublessee over that specified to be paid by Airline herein; provided, however, that Airline may charge a reasonable fee for administrative costs in an amount not to exceed twenty five percent(25%) of the specified sublease fee, which fee shall not be considered excess fees and charges. Airline shall also have the right to charge a reasonable fee to others for the use of Airline's capital equipment and to charge for use of utilities and other services being paid for by Airline. Handling Agreements In the event Airline agrees to ground handle any portion of the operations of another Scheduled Air Carrier(excluding its Affiliates), Airline shall provide Airport Director advance written notice of such proposed handling services, including a description of the type and extent of services to be provided. Notwithstanding the foregoing, Airline shall not ground handle another Scheduled Air Carrier(other than its Affiliates) without the prior written consent of Airport Director if such Scheduled Air Carrier does not have a validly executed operating agreement with County, which consent may be granted or withheld in Airport Director's sole and absolute discretion. Final Version 1481 NonSignatory Airline Operating Agreement-EYW ARTICLE 16 -AVAILABILITY OF ADEQUATE FACILITIES Airline acknowledges County's objective to offer to all Commercial Air Transportation Companies desiring to serve Airport access to the Airport and to provide adequate facilities at the Airport. Recognizing that physical and financial limitations may preclude timely expansion of the Airport to meet the stated requests of Commercial Air Transportation Companies ("Requesting Airline")for additional facilities at the Airport, Airline acknowledges that it may be necessary for Commercial Air Transportation Companies operating at the Airport, including Airline, to share gate positions and other Airport facilities from time to time. Airline further acknowledges that County may also have a need to accommodate the immediate, non-recurring needs of a Commercial Air Transportation Company, such as charters, and flights delayed or diverted due to weather or mechanical reasons. Airline's aircraft on a Preferential Use Gate will have priority for weather delays or aircraft maintenance on Airline's Preferential Use Gate. It is the policy of County, to the extent reasonably practicable, to accommodate a Commercial Air Transportation Company's need for additional facilities at the Airport in the following manner: (1)first, by entering into a lease for the use of unassigned facilities with the Commercial Air Transportation Company; (2) second, by approving a sublease agreement between a Commercial Air Transportation Company with an existing agreement with the County and a Requesting Airline; (3)third, by requiring a Commercial Air Transportation Company to accommodate a Requesting Airline; (4)fourth, through the reassignment of an existing Commercial Air Transportation Company's Preferential Use Premises in accordance with the provisions of this Article and Article 15; and (5)fifth, through the expansion of Airport facilities, unless in the opinion of County, the physical, financial, or time limitations make expansion impractical. The parties acknowledge and agree that any accommodation agreement made by Airline with a Requesting Airline voluntarily, or pursuant to a directive from County, shall recognize Airline's right of Preferential Use to the Preferential Use Premises and the necessity that the Requesting Airline's operations be compatible with those of Airline. Accommodation of Air Transportation Companies Upon receipt of a request for an accommodation by a Requesting Airline, Airport Director will require the Requesting Airline to first coordinate directly with the Signatory Airlines if the Airport facilities being requested, such as a Gate, are not available. Airline shall cooperate in good faith with Airport Director to accommodate the needs of a Requesting Airline by permitting such Requesting Airline to utilize Airline's Preferential Use Premises for such time period(s) as reasonably necessary to permit the Requesting Airline's scheduled operations at only such times when the use of such facilities will not interfere with Airline's operations or those of its Affiliates, approved subleases or Commercial Air Transportation Companies being handled by Airline. In the event a Requesting Airline and the Signatory Airlines are unable to reach an agreement regarding the Requesting Airline's requested accommodation, Airport Director will determine whether any Commercial Air Transportation Company operating at the Airport, including Final Version 1491 NonSignatory Airline Operating Agreement—EYW Airline, has the ability to accommodate any or all of such Requesting Airline's proposed operations. If Airport Director determines that Airline has the ability to accommodate the Requesting Airline's proposed operations, Airport Director will notify Airline in writing of its determination. In the event Airline objects to Airport Director's determination, Airline may notify Airport Director of its objection within fifteen (15) days of the date of Department's notice, which shall include the reasons why Airline believes that it will be unable to accommodate the Requesting Airline. In making its final determination, Airport Director shall consider Airline's capabilities, capacity, facilities, published future schedules, and personnel, Airline's requirements and contractual obligations, the compatibility of the Requesting Airline's proposed operations with those of Airline, and the need for labor harmony. If Department, after considering the information, if any, provided by Airline, reasonably determines that Airline has the capability to accommodate a Requesting Airline, Airport Director may direct Airline, in writing, to accommodate the Requesting Airline to the extent of, and during those periods when, Airport Director deems reasonable and shall provide Airline and the Requesting Airline with a written statement specifying the terms and conditions of the accommodation. Should a Requesting Airline be granted use of Airline's Preferential Use Premises based on existing availability, Airport Director reserves the right to reevaluate Requesting Airline's use of the Airline's Preferential Use Premises to accommodate changes to Airline's published flight schedules. Notwithstanding the foregoing, in no event shall the requirements of this Section be construed to authorize County to require Airline to alter its scheduled operations, or those of its Affiliates, sublessees and Commercial Air Transportation Companies that are ground handled by Airline, in order to accommodate a Requesting Airline. In addition, the requirements of this Section shall not apply to ticket counter and office spaces leased for Airline's Preferential Use. Accommodation of Specific Flights Airline shall cooperate in good faith with Department to accommodate specific flights of other Commercial Air Transportation Companies from time to time, as deemed necessary by Airport Director, for situations, including, but not limited to, the following: A. Unscheduled flights, including charters, diversions due to weather and other circumstances not otherwise accommodated or handled by other Commercial Air Transportation Companies operating at the Airport. B. Scheduled flights for which the Commercial Air Transportation Company has no assigned gate(s) or its assigned gate(s) are occupied at the time its flight arrives. Airline shall not be required to accommodate other Commercial Air Transportation Companies pursuant to this Section if all of Airline's Aircraft Parking positions are occupied by Airline's flights or its Affiliates' or flights of other Commercial Air Transportation Companies already being accommodated or ground handled by Airline at the time a flight requiring accommodation will arrive; provided, however, the overnight parking of Airline's aircraft at a gate position, or at any other time beginning ninety (90) minutes following the arrival of an aircraft and ending one (1) hour before its scheduled departure shall not be deemed an occupied gate position for the Final Version 1501 NonSignatory Airline Operating Agreement—EYW purposes of this Article, provided that Airport Director has designated an alternative parking position for such aircraft. Accommodation of Airline Airline shall be entitled to the same rights of accommodation of its needs for use or lease of additional facilities as specified in this Article at any time that Airline requests accommodation or has individual flights needing to be accommodated pursuant to the previous section "Accommodation of Specific Flights". Indemnification Obligations During the period of use of Airline's facilities by a Commercial Air Transportation Company at Airport Director's request or direction pursuant to this Article, Airline shall be relieved of its obligations under this Agreement to indemnify and save harmless County and the County Parties with regard to any claim for damages or personal injury arising out of or in connection with the accommodated Commercial Air Transportation Company's use of the Airline Premises except to the extent such damage or personal injury is caused by the willful misconduct or negligence of Airline or any Airline Party. Airline shall have the right to require the accommodated Commercial Air Transportation Company to indemnify and insure Airline, provided that such requirements are consistent with the requirements of this Agreement. Reassignment, Reallocation, Re-Design The Airport Director shall have the right to reassign, reallocate, redesign, relocate or recapture all or any portion of the premises at the Airport, in its reasonable discretion, after consultation with the affected Signatory Airlines, and consideration of the customer service and operational needs of each Signatory Airline and the relative space needs of the traveling public and of all Signatory Airlines operating at the Airport. Without limiting the foregoing, the following shall apply regarding gates and apron: A. Ticket counters, adjacent spaces, Gates and Preferential Use Premises as shown on the Exhibits attached to this Agreement as such exhibits may be amended from time to time by the Airport Director shall be assigned to Airline by the Airport Director on a nonexclusive, Preferential Use basis that provides Airline with priority of use to accommodate its flights provided that the Director may authorize other Signatory Airlines secondary use of those ticket counters, adjacent spaces, Gates, Apron Areas and Aircraft Parking Areas on a joint use basis consistent with the provisions of this Agreement, so long as (i) Airline and its Affiliates does not need to use such areas at the times when a secondary user Signatory Airline needs to use such areas, (ii) Airline's and its Affiliates' operations take priority at all times over such Signatory secondary user's operations, (iii) Airline's and its Affiliates' operations are not affected, and (iv) Airline is released from any claims, liabilities, damage, losses or injury that arise as a result, whether directly or indirectly, of the use of such areas by other Signatory Airlines or such Signatory Airlines' Affiliates, contractors, subcontractors, agents, or any of their Final Version 1511 NonSignatory Airline Operating Agreement—EYW employee's. No less than ninety (90) days' prior written notice of such reassignment, reallocation, re-designation, relocation or recapture will be provided to Airline by the Airport Director. B. Airport Director reserves the right to reassign, reallocate, re-designate, relocate or recapture possession of one or more of Airline's preferentially assigned ticket counters, adjacent spaces, Gates and Aircraft Parking Positions if the Airport Director determines that there is a need for the use of such areas by another Commercial Air Transportation Company and Airline's operations can be accommodated from any other ticket counters, adjacent spaces, Gate, Apron Areas and Aircraft Parking Positions assigned to Airline. No less than ninety (90) days' prior written notice of such reassignment, reallocation, re- designation, relocation or recapture will be provided to Airline by the Airport Director. Relocation Expenses In an effort to optimize passenger flow and use of the Airport and/or to minimize the need for construction of improvements, Airport Director may request Airline to relocate its operations to alternate areas within the Terminal Building. Airline shall be eligible for reimbursement of its reasonable and necessary relocation costs, as approved by Airport Director, through Rental Credits. Relocation costs may include moving expenses, construction, signage, rewiring, and other costs incidental to the relocation. Prior to relocation, Airline shall submit a proposal outlining the necessary costs for the relocation, including any plans or specifications for construction, if any. Airline shall use commercially reasonable efforts to minimize such costs. Airport Director shall retain the right to require competitive quotes for work submitted in the relocation proposal. Airline's request for reimbursement shall include documentation reasonably satisfactory to Airport Director evidencing the costs incurred by Airline to complete the relocation. Final Version 1521 NonSignatory Airline Operating Agreement-EYW ARTICLE 17 - SUBORDINATION AND SAVINGS CLAUSE Subordination This Agreement and all rights granted to Airline hereunder are expressly subordinated and subject to the lien and provisions of the pledge, transfer, hypothecation, or assignment made by County in the Bond Governance Documents, and County and Airline agree that to the extent permitted by authorizing legislation, the holders of the Bonds or their designated representative may exercise any and all rights of County hereunder to the extent such possession, enjoyment and exercise are necessary to ensure compliance by Airline and County with the terms and provisions of this Agreement and Bond Governance Documents. In the event of a conflict between this Agreement and the Bond Governance Documents, the terms of the Bond Governance Documents shall prevail. County agrees to provide Airline with prior written notice of any future change to the Bond Governance Documents that will materially alter Airline's obligations hereunder. This Agreement and all provisions hereof shall be subject and subordinate to all the terms and conditions of any instruments and documents under which County acquired the land or improvements thereon, of which the Airline Premises are a part, and shall be given only such effect as will not conflict with nor be inconsistent with such terms and conditions. Airline understands and agrees that this Agreement shall be subordinate to the provisions of any and all existing or future agreements between County and the United States of America, State of Florida or any of their respective agencies, relative to the operation or maintenance of the Airport, the execution of which has been or is required as a condition precedent to the spending of federal funds for the development of the Airport. Final Version 1531 NonSignatory Airline Operating Agreement—EYW ARTICLE 18 - NONDISCRIMINATION Airline represents and warrants to County that Airline shall comply with all applicable requirements of the Federal Nondiscrimination Requirements set forth in Exhibit"H" -Federal Nondiscrimination Requirements. Additionally, Airline and County agree to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: • Title IX of the Education Amendment of 1972, as amended (20 USC §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; • The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; • The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; • The Public Health Service Act of 1912, §§ 523 and 527 (42 USC §§ 690dd-3 and 290ee- 3), as amended, relating to confidentiality of alcohol and drug abuse patient records; • Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; • Monroe County Code Chapter 14, Article II, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and • Any other nondiscrimination provisions in any federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. Failure to meet this requirement shall be considered default of this Agreement. Final Version 1541 NonSignatory Airline Operating Agreement—EYW ARTICLE 19 - NONEXCLUSIVE RIGHTS Notwithstanding anything herein contained, the rights, privileges and leases granted under this Agreement are nonexclusive and County reserves the right to grant similar but no greater privileges to other Commercial Air Transportation Companies. Final Version I551 NonSignatory Airline Operating Agreement—EYW ARTICLE 20 - GOVERNMENTAL RESTRICTIONS Avigation Rights County reserves unto itself, its successors, and assigns for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Airport, including the Airline Premises, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft now known or hereafter used, for navigation of, or flight in the said airspace for landing on and taking off from the Airport. Height Limitation Airline expressly agrees for itself, its successors and assigns, to restrict the height of structures, objects of natural growth and other obstructions on the Airline Premises to such a height so as to comply with Federal Aviation Regulations, Part 77, as such may be amended or superseded from time to time. County Tax Assessment Right None of the terms, covenants and conditions of this Agreement shall in any way be construed as a release or waiver on the part of County, as a political subdivision of the State of Florida, or any of public officials of the County of Monroe, of the right to assess, levy, and collect any license, personal, intangible, occupation, or other tax of general application which shall be lawfully imposed on the business or property of Airline. Governmental Review Airline acknowledges that this Agreement is subject to review or inspection by the United States government and the State of Florida and their respective agencies and departments, including, but not limited to, the FAA, to determine satisfactory compliance with state and federal law and/or PFC and grant assurance requirements. Airline agrees that this Agreement shall be in full force and effect and binding upon both parties pending such review or inspection; provided, however, that upon such review or inspection the parties agree to modify any of the terms of this Agreement that are determined by the United States government or the State of Florida or any of their respective agencies or departments to be in violation of or inconsistent with any state or federal law and/or PFC or grant assurance requirement. Federal Right to Reclaim In the event a United States governmental agency shall demand and take over the entire facilities of the Airport or the portion thereof wherein the Airline Premises are located, for public purposes, then this Agreement shall thereupon terminate and both County and Airline shall be released and fully discharged from any and all further liability hereunder. This Article shall not act or be construed as a waiver of any rights Airline may have against the United States as a result of such taking. Final Version 1561 NonSignatory Airline Operating Agreement-EYW ARTICLE 21 - LAWS, REGULATIONS, PERMITS, TAXES AND COMPLIANCE Airline agrees that throughout the Term of this Agreement, Airline shall at all times be and shall remain in full and complete compliance with all applicable federal, state and local laws, statutes, regulations, rules, rulings, orders, ordinances and directives of any kind or nature, as now or hereafter amended, applicable to Airline's activities at the Airport, including, but not limited to, the FAA Grant Assurances presented in Exhibit"I" -FAA Grant Assurances, FAA Advisory Circulars, Airport Rules and Regulations and Environmental Laws. Airline agrees to cooperate in good faith with any investigation, audit, or inquiry by County regarding any federal or state regulatory action or investigation, which is against County, but arises out of Airline's activities. Airline agrees that it shall require its appropriate managers, supervisors, and employees to attend such training and instructional programs as County may, from time to time require, in connection with the Airport Rules and Regulations and policies and procedures related to certification of the Airport under Title 14, Part 139 of the Code of Federal Regulations, as now or hereafter amended. Permits and Licenses Airline agrees that it shall, at its sole cost and expense, obtain, maintain current, and fully comply with, any and all applicable permits, licenses and other governmental authorizations, as may be required by law, any federal, state or local governmental entity, or any court of law having jurisdiction over Airline or Airline's operations and activities, for any activity of Airline conducted on the Airline Premises and/or Airport. Upon the written request of County, Airline shall provide to the Department certified copies of any and all permits and licenses. Air and Safety Regulation Airline agrees that it shall conduct its operations and activities under this Agreement in a safe manner, shall comply with all applicable safety standards imposed by federal, state and local laws and regulations and shall require the observance thereof by all employees, contractors, business invitees and all other persons transacting business with or for Airline resulting from, or in any way related to, the conduct of Commercial Air Transportation Services on the Airline Premises. Airline shall procure and maintain such fire prevention and extinguishing devices as required by law, including applicable County orders and codes, and shall at all times be familiar and comply with the fire regulations and orders of County and the fire control agency with jurisdiction at the Airport. Airline agrees that neither Airline nor any employee or contractor or any person working for or on behalf of Airline, shall require any personnel engaged in the performance of Airline's Commercial Air Transportation Services to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his or her health or safety, as determined by standards adopted pursuant to the Occupational Safety and Health Act of 1970, as same may be amended from time to time, as well as all state and local laws, regulations, and orders relative to occupational safety and health. Final Version 1571 NonSignatory Airline Operating Agreement-EYW Assumption of Liability Airline shall be liable for and hereby expressly assumes all responsibility for the cost of all citations, fines, penalties, environmental controls, monitoring, clean up, disposal, restoration and corrective measures resulting from the improper handling, storage and/or disposal at the Airport by Airline or any Airline Party of any Hazardous Substances regulated by Environmental Laws. Airline agrees to cooperate in good faith with any investigation, audit or inquiry by County regarding any regulatory enforcement action or investigation against County, which arises from Airline's activities. Airline shall provide any notice of non-compliance or violation or other notice of enforcement action against Airline related in any way to its activities at the Airport to County as soon as reasonably practicable, but no later than fourteen (14) days of receipt by Airline. Airline's obligations under this Section shall survive the expiration or earlier termination of this Agreement. Environmental Indemnification Airline hereby expressly agrees to indemnify and hold County and the County Parties harmless from and against any and all Damages, including reasonable fees and costs of consultants, experts, contractors and laboratories reasonably incurred in connection with the indemnified incident to the extent required to reach compliance with applicable federal or state law, arising from or resulting out of any violation or non-compliance by Airline or any Airline Party of any Environmental Laws in connection with Airline's or an Airline Party's use of the Airport, and shall include, but shall not be limited to, enforcement actions to assess, abate, remediate, initiate corrective measures and/or monitor environmental conditions; provided, however, Airline shall not be responsible to County for any Damages determined by a court of competent jurisdiction to be attributable to the negligence, willful misconduct, actions or inactions of County or a County Party. Airline fully understands the broad extent of this indemnification and hereby expressly acknowledges that it has received full and adequate consideration from County to legally support this indemnification agreement. Airline's obligations under this Section shall survive expiration or earlier termination of this Agreement. Environmental Considerations If Airline is deemed to be a generator of hazardous waste (as defined by Environmental Laws)in connection with its use of the Airport, Airline will obtain, if required by applicable Environmental Laws, a generator identification number and the appropriate generator permit from the government agency with jurisdiction and will comply with all applicable Environmental Laws in connection with its use of the Airport, including, but not limited to, ensuring that the transportation, storage, handling, and disposal of such hazardous wastes are conducted in full compliance with Environmental Laws. If required by applicable Environmental Laws, Airline agrees to provide to County within fourteen (14) days after County's request, copies of all hazardous waste permit application documentation, permits, monitoring reports, transportation, records, storage and disposal plans, material safety data sheets and waste disposal manifests prepared or issued in connection with Airline's use of Airport in the form such records are kept in accordance with applicable Environmental Laws. Final Version 1581 NonSignatory Airline Operating Agreement—EYW Upon the expiration or earlier termination of this Agreement, Airline shall dispose of all of Airline's hazardous wastes and containers in compliance with Environmental Laws. Upon request by County, copies of all waste manifests for shipments of such wastes will be provided to County at least sixty (60) days following the expiration or earlier termination of this Agreement. Nothing in this Article will be construed to make Airline liable in any way for any contamination or release of Hazardous Substances, affecting Airport that occurred prior to Airline's entry upon or operations at the Airport or that occurred as a result of the actions or inaction of County or its employees, agents, contractors or anyone else other than Airline or its employees, agents or contractors at the Airport. Nothing in this Article will be construed to make Airline liable in any way for any environmental contamination or release of Hazardous Substances affecting Airport or Airline Premises that occurs by reason of the migration or flow of contamination onto Airport or Airline Premises from a site located off the Airport or off the Airline Premises, as the case may be, with verifiable or documented evidence that the contamination is not attributable to Airline's activities at Airport. Airline agrees to conduct any corrective measures or remediation of the Airport and Airline Premises caused by Airline or an Airline Party in accordance with applicable Environmental Laws. Airline acknowledges that certain properties within Airport or on County-owned land are subject to stormwater rules and regulations. Airline agrees to comply with all applicable stormwater rules and regulations, and, if applicable, Airline agrees in connection with Airline's operations on Airport with the following: A. The parties acknowledge that close cooperation is necessary to ensure compliance with any stormwater discharge permit terms and conditions, as well as to ensure safety and to minimize the cost of compliance. County agrees to notify Airline in advance of any proposed changes to the stormwater permit or County's Stormwater Pollution Prevention Plan applicable to the Airport affecting Airline's activities or operations hereunder. Airline acknowledges further that it may be necessary to undertake actions to minimize the exposure of stormwater to "significant materials" (as such term may be defined by applicable stormwater rules and regulations) generated, stored, handled, or otherwise used by Airline in connection with Airline's activities or operations at the Airport by implementing and maintaining "best management practices" (as such term may be defined in applicable stormwater rules and regulations). B. Airline shall comply with any stormwater discharge permit requirements applicable to Airline. If applicable to Airline's use of the Airport, Airline shall submit a separate Notice of Intent to use the State of Florida Multi-Sector Generic Permit for Stormwater Discharge Associated with Industrial Activity to the Florida Department of Environmental Protection with a copy to County. Airline shall comply with all applicable stormwater requirements, including, but not limited to: certification of non- Final Version 1591 NonSignatory Airline Operating Agreement—EYW stormwater discharges; County's Stormwater Pollution Prevention Plan or similar plans; implementation of best management practices (as such term may be defined in applicable stormwater rules and regulations); and maintenance and submittal of records required by County's Stormwater Pollution Prevention Plan. In complying with such requirements, Airline will observe applicable deadlines set by the regulatory agency that has jurisdiction over the permit. Airline agrees to undertake, as its sole expense, those applicable stormwater permit requirements for which it has received written notice from the regulatory agency and that apply to Airline's operations at the Airport. Security Airline acknowledges and accepts full responsibility for the security and for the prevention of unauthorized access to the Exclusive Use Premises or Preferential Use Premises and expressly agrees to comply with all rules and regulations of County, MCSO, the Department of Homeland Security and all other governmental entities that now or may hereafter have jurisdiction over security of the Airport. Airline further expressly acknowledges and accepts responsibility to maintain the security of the Airfield from or through the Exclusive Use Premises or Preferential Use Premises to the aircraft operations area and hereby agrees to fully comply with all federal, state and local laws regulating security at the Airport and with all rules and regulations of the Department and County concerning security procedures at the Airport, as now or hereafter amended, including, but not limited to, 49 CFR 1542 and the Airport Security Program. If Airline, its officers, employees, agents, or those under Airline's control shall fail or refuse to comply with the aforementioned security requirements and such non-compliance results in a monetary penalty being assessed against County, Airline shall be responsible for the costs thereof and shall reimburse County in the full amount of any such monetary penalty. Payment of Taxes Airline shall pay any and all taxes and other costs lawfully assessed against its interest in the Airline Premises, the improvements, whether owned by Airline or County, personal property or its operations under this Agreement including, but not limited to, tangible, intangible, sales and ad valorem taxes, general or special assessments. In the event this Agreement or Airline's use of the Airline Premises renders the Airline Premises subject to ad valorem real property taxes or similar impositions imposed by any government entity, Airline shall be responsible for and pay the same prior to delinquency. Airline shall have the right to contest the amount or validity of any tax or assessment payable by it by appropriate legal proceedings, but this shall not be deemed or construed in any way as relieving, modifying, or extending Airline's covenants to pay any such tax or assessment, unless the legal proceedings shall operate to prevent the collection of the tax or assessment. Upon termination of such legal proceedings, Airline shall pay the amount of any such tax or assessment, or part thereof, as finally determined in such proceedings, the payment of which may have been deferred during the prosecution thereof, together with any costs, fees, interest, penalties, or other liabilities in connection therewith. Final Version 1601 NonSignatory Airline Operating Agreement-EYW Compliance by Other Tenants County shall, whenever possible, make reasonable efforts to obtain uniform compliance with its rules and regulations; however, County shall not be liable to Airline for any violation or non observance of such rules and regulations by any Airport user, tenant, concessionaire or Commercial Air Transportation Company or their officers, agents, or employees. Final Version 1611 NonSignatory Airline Operating Agreement—EYW ARTICLE 22 - DISCLAIMER OF LIABILITY COUNTY HEREBY DISCLAIMS, AND AIRLINE HEREBY RELEASES COUNTY, FROM ANY AND ALL LIABILITY, WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY, NEGLIGENCE AND NUISANCE),FOR ANY LOSS, DAMAGE, OR INJURY OF ANY NATURE WHATSOEVER SUSTAINED BY AIRLINE OR AN AIRLINE PARTY DURING THE TERM OF THIS AGREEMENT OR ANY EXTENSION THEREOF INCLUDING, BUT NOT LIMITED TO, LOSS, DAMAGE OR INJURY TO THE IMPROVEMENTS OR PERSONAL PROPERTY OF AIRLINE OR AIRLINE'S BUSINESS INVITEES THAT MIGHT BE LOCATED OR STORED ON THE PREMISES, EXCEPT TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INJURY IS CAUSED BY COUNTY'S NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF THIS AGREEMENT OR THAT OF A COUNTY PARTY OR COUNTY CONTRACTOR. THE PARTIES HERETO EXPRESSLY AGREE THAT UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY, NEGLIGENCE, AND NUISANCE), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR ANY OTHER DAMAGE RELATED TO THE LEASING OF THE PREMISES PURSUANT TO THIS AGREEMENT. AIRLINE ACKNOWLEDGES AND AGREES THAT ITS USE OF ANY INFORMATION, WHETHER PREPARED OR PROVIDED BY COUNTY OR OTHERWISE, IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT, WAS AT ITS SOLE RISK. Final Version 1621 NonSignatory Airline Operating Agreement-EYW ARTICLE 23 - GENERAL PROVISIONS Clear Title County covenants that at the granting and delivery of this Agreement, it has the right and authority to license the same as herein set forth, subject to all matters, exceptions and encumbrances of record of any kind, including easements. Relationship of Parties Airline, or any successor in interest to Airline under this Agreement, is and shall be deemed to be an independent contractor and operator and shall be responsible to all parties for its respective acts or omissions, and County shall in no way be responsible therefor. All persons engaged by Airline in any of the work or services performed pursuant to this Agreement shall at all times, and in all places, be subject to Airline's sole direction, supervision and control. Airline shall exercise control over the means and manner in which it and its employees perform the work, and in all respects Airline's relationship and the relationship of its employees to County shall be that of independent contractors and not as employees or agents of County. County Not Liable Except as provided for in this Agreement, County shall not be under any duty or obligation to Airline to repair or maintain the Airline Premises, nor any portion thereof, or any facilities or equipment constructed thereon. County shall not be responsible or liable to Airline for any claims for compensation for any losses, damages, or injury sustained by Airline resulting from failure of any water supply, heat, air conditioning, electrical power, or sewerage or drainage facility, (except to the extent such loss, damage or injury was caused by the negligence or willful misconduct of County, County Party, or County contractor), or caused by natural physical conditions on the Airport, whether on the surface or underground, including stability, moving, shifting, settlement of ground, or displacement of materials by fire, water, windstorm, tornado, act of God, or state of war, civilian commotion or riot, or any cause beyond the control of County. County shall not be liable for any damage to, or loss of said personal property, except to the extent that said damage or loss resulted from the negligence or willful misconduct of County or a County Party. Authorized Uses Only Notwithstanding anything to the contrary herein, Airline shall not use or permit the use of the Airline Premises or the Airport for any illegal or improper purpose or for any purpose which would invalidate any policies of insurance, now existing or hereafter written on the Airline Premises or the Airport for County or Airline. Quiet Enjoyment County covenants that so long as Airline timely pays all fees and charges due hereunder, and fully and faithfully performs all of its obligations as provided herein, and otherwise is not in default of any of the terms and conditions of this Agreement, Airline shall peacefully and quietly Final Version 1631 NonSignatory Airline Operating Agreement—EYW have, hold and enjoy the Airline Premises, free from any eviction or unauthorized interference by County or a County Party or County contractor, during the Term hereof. Time of Essence The parties expressly agree that time is of the essence in this Agreement and the failure by a party to complete performance within the time specified, or within a reasonable time if no time is specified herein, shall, at the option of the other party without liability, in addition to any other rights or remedies, relieve the other party of any obligation to accept such performance. Non-Exclusivity of Remedies No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder shall preclude any other or further exercise thereof. No Recording Neither this Agreement, nor any memorandum or short form hereof, shall be recorded in the Public Records of Monroe County, Florida. No Third-Party Beneficiaries No provision of this Agreement is intended to, or shall be construed to, create any third-party beneficiary or to provide any rights to any person or entity not a party to this Agreement, including, but not limited to, any citizen or employees of County and/or Airline. Annual Budgetary Funding This Agreement and all obligations of County hereunder are subject to and contingent upon annual budgetary funding and appropriations by the Monroe County Board of County Commissioners. Incorporation by References Exhibits attached hereto and referenced herein shall be deemed to be incorporated in this Agreement by such reference. Operation of Airport Airline expressly agrees for itself, its subleases, successors and assigns, to prevent any use of the Airline Premises which would interfere with or adversely affect the operation, maintenance or development of the Airport, or otherwise constitute an Airport hazard. Final Version 1641 NonSignatory Airline Operating Agreement-EYW Agent for Service It is expressly understood and agreed that if Airline is not a resident of the State of Florida, or is an association or partnership without a member or partner resident of said State, or is a foreign corporation not licensed to do business in Florida, then in any such event, Airline shall appoint an agent within the state of Florida for the purpose of service of process, in any court action between Airline and County, arising out of or based upon this Agreement. Airline shall immediately notify County, in writing, of the name and address of said agent. The service shall be made as provided by the laws of the State of Florida for service upon persons or entities having a registered agent in the state of Florida. It is further expressly agreed, covenanted, and stipulated that, as an alternative method of service of process, should Airline fail to appoint said agent, or fail to notify County of the name and address of said agent as aforesaid, Airline may be personally served with such process out of this State by the registered mailing of such complaint and process to Airline at the address set forth in Notices. No Individual Liability No elected official, member, officer, agent, director, or employee of County or Airline shall be charged personally, or held contractually liable by or to the other party, under the terms or provisions of this Agreement, or because of any breach thereof, or because of its or their execution or attempted execution. Governmental Authority Nothing in this Agreement shall be construed to waive or limit County's governmental authority as a political subdivision of the State of Florida to regulate Airline or its operations. County's obligations under this Agreement are made in a proprietary capacity rather than in a governmental capacity and such agreements shall not be construed as limiting, prohibiting or eliminating the obligation of the parties to comply with all applicable rules, regulations, ordinances, statutes and laws, nor alter or impair County's governmental functions, including, but not limited to, County's right to lawfully exercise its regulatory authority over the development of the Airline Premises, nor as enabling, permitting, or creating any cause of action or claim arising out of the lawful exercise of County's governmental authority. Rights Reserved to County All rights not specifically granted to Airline by this Agreement are reserved to County. Severability The invalidity of any portion, article, paragraph, provision, clause, or any portion thereof of this Agreement shall have no effect upon the validity of any other part or portion hereof. Venue To the extent allowed by law, the venue for any action arising from this Agreement shall be in a state or federal court of competent jurisdiction in Monroe County, Florida. Final Version 1651 NonSignatory Airline Operating Agreement-EYW Governing Law This Agreement shall be governed by and in accordance with the laws of the State of Florida. Consents and Approvals Whenever this Agreement calls for an approval, consent, authorization, notice or other action by the Department or County, such approval, consent, authorization, notice or other action may be provided or performed by the Department, on behalf of County, by and through its Director of the Department or his or her designee. In the event this Agreement is silent as to the standard for any consent or approval contemplated hereunder, the standard shall be the implied standard of reasonableness. In the event this Agreement is silent as to the specific timeframe for any consent or approval to which the implied standard of reasonableness applies, such consent or approval shall not be unreasonably delayed. Notices All notices and elections (collectively, "notices")to be given or delivered by or to any party hereunder, shall be in writing and shall be (as elected by the party giving such notice) hand delivered by messenger, courier service or overnight mail, or alternatively, shall be delivered by United States Postal Service certified mail, with return receipt requested. Notice shall be deemed to have been given and received as follows: (1)if by hand delivery, upon the date of delivery; (2)if mailed, upon the date the return receipt is signed or delivery is refused, or upon the date that the notice has been designated as non-deliverable by the postal authorities, as the case may be; or(3)if by courier service or overnight mail, upon the date shown on the receipt as the date of actual delivery. The parties hereby designate the following addresses as the addresses to which notices may be delivered, and delivery to such addresses shall constitute binding notice given to such party: To County: Attn: Airport Director Key West International Airport 3491 South Roosevelt Blvd. Key West, FL 33040 With a copy to: Monroe County Administrator 1100 Simonton Street Key West, FL 33040 To Airline: the address set forth in the Letter of Authorization for the Airline or to such other address as may be designated by Airline by written notice to County: Any party may from time to time change the address to which notice under this Agreement shall be given such party, upon three (3) days prior written notice to the other party. Final Version 1661 NonSignatory Airline Operating Agreement—EYW Any information, documentation or reports required to be submitted electronically to County hereunder, including, but not limited to the Activity Report, shall be delivered electronically to County to such e-mail addresses designated by County in writing. County may change the e- mail address or form of delivery that the aforementioned information, documentation or reports are required to be delivered to upon ten (10) days prior written notice to Airline. Construction No party shall be considered the author of this Agreement since the parties hereto have participated in extensive negotiations and drafting and redrafting of this document to arrive at a final Agreement. Thus, the terms of this Agreement shall not be strictly construed against one party as opposed to the other party based upon who drafted it. In the event that any section, paragraph, sentence, clause, or provision hereof, shall be held by a court of competent jurisdiction to be invalid, such shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. Paragraph Headings The headings of the various Articles and Sections of this Agreement, and its Table of Contents, are for convenience and ease of reference only, and shall not be construed to define, limit, augment, or describe the scope, context, or intent of this Agreement or any part or parts of this Agreement. Binding Effect The terms, conditions, and covenants of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors, assigns, and sublessees, if any. This provision shall not constitute a waiver of any conditions against assignment or subletting. Excusable Delays Except as otherwise provided in this Agreement, neither County nor Airline shall be deemed to be in default hereunder if either party is prevented from performing any of the obligations, other than the payment of fees and charges hereunder, by reason of strikes, boycotts, labor disputes, embargoes, shortages of energy or materials, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, riots, rebellion, or sabotage, or any other circumstances for which it is not responsible or which are not within its control. Public Entity Crimes As provided in Section 287.132-133, Florida Statutes, by entering into this Agreement or performing any work in furtherance hereof, Airline certifies that Airline has not, and to the best of Airline's knowledge, without having conducted any special investigation, its affiliates, who will perform hereunder, have not been placed on the convicted vendor list maintained by the State of Florida Department of Management Services within the thirty-six (36) months immediately preceding the effective date hereof. This notice is required by Section 287.133(3)(a), Florida Statutes. Final Version 1671 NonSignatory Airline Operating Agreement-EYW Ethics Clause Airline warrants that Airline has not employed, retained or otherwise had act on Airline's behalf any former County officer or employee subject to the prohibition of Section 2 of Ordinance No. 0 10-1990 or any County officer or employee in violation of Section 3 of Ordinance No. 020- 1990. For breach or violation of this provision the County may, in its discretion, terminate this Agreement without liability. Entirety of Agreement The parties agree that this Agreement sets forth the entire agreement between the parties, and there are no promises or understandings other than those stated herein. Except as otherwise provided in this Agreement, none of the provisions, terms, and conditions contained in this Agreement may be added to, modified, superseded, or otherwise altered except by written instrument executed by the parties hereto. No Broker Airline represents and warrants that Airline has not dealt with any real estate salesperson, agent, finder or broker in connection with this Agreement and further agrees to indemnify, defend and hold harmless County from and against any claims or demands of any such salesperson, agent, finder or broker claiming to have dealt with Airline. The foregoing indemnification shall include all costs, expenses and fees, including reasonable attorney's fees at trial and all appellate levels, expended or incurred in the defense of any such claim or demand. Radon Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from County's public health unit. Survival Notwithstanding any early termination of this Agreement, the parties shall remain obligated hereunder to perform any duty, covenant or obligation imposed upon the parties hereunder arising prior to the date of such termination. {Remainder of page intentionally left blank.} Final Version 1681 Non Signatory Airline Agreement—EYW IN WITNESS WHEREOF,the parties hereto have duly executed this Agreement as of the day and year first above written. Signed, sealed and delivered in the MONROE COUNTY, FLORIDA presence of two witnesses for County: By: Witness Signature Airport Director (Typed or Printed) Witness Signature R717140p, E COUNTY ATTOFINEY (Typed or Printed) 10 - FO R APPROVED AS TO FORM AND P b J. LEGAL SUFFICIENCY AS I t,NTY ATTORNEY Cate 8/28/21 By: County Attorney ATTEST: AIRLINE: By: By: Secretary (Corporate Seal) Typed or Printed Name of Corporate officer Title: Signed, sealed and delivered in the presence of two witnesses for Airline: Witness Signature (Typed or Printed) Witness Signature (Typed or Printed) Final Version 1691 � k Sr 4 r 1\ F v�r _ r �,}x,�( 'f�irir',#,ks#r �t _ — Ff> {X� = i'�#, _ 5� ��' :� �- '�.�#cd',-. 4\E �`,`��_t _ _ =r.s;`• ws a. , � `��, ��:a�. - — EXHIBIT B TERMINAL LAYOUT PLAN KEY WEST INTERNATIONAL AIRPORT GROUND LEVEL I Ci y r ,. .r- �.�� , _„ L S u I w f 4 y� n - _ Im If oo r . ARRIVAL,AR.FA ,. � I 71 Pag.l of4 EXHIBIT B TERMINAL LAYOUT PLAN A WEST INTERNATIONAL AIRP RT I � 0 ..1.... m-....H.._._ -�-- SECOND LEVEL 1 1TIGC tts'EICE HIE - ... t I'1ilJ our awcxz. yc;umrx-N i i 1 az +ffGx ' c a Ong rx�ta E E M. �� kg u. .` -;{'C �'aS UME 3 CJ ® f "' y`i 4 GFt-baV tr.]ip C7GR) � � g r co :� 7 4 ym._ Cdly .. �3 t91s1 m{i # .. Ccr f�N1 �1 1 � F Q-1V Roll - 1 5 W NE M,r -_ --- „------ JIM :LEV 2 ELEV, i i — romp ED .....MAI 72 Page 2 of 4 �) EXHIBIT B TERMINAL LAYOUT PLAN Ilv " �l KEY WEST INTERNATIONAL AIRPORT DEPARTURE LEVEL (' iRENTAL RENTAL RENTAL RENTAL I O ® O OEPARNRE GATE DEPARTURE GATEEl 3 1 1 RESTAURANT n ELECTRIC b,..,.,,..,,r DOOM IOEPARTUORE GATE DEPARTURE GATE DEPARTURE GATE i DEPARTURE GATE u HOLD ROOM / —:::: �, "BEACHPL A OININN A2A HOLOOROOM I ! ' I T-t BEN 1'Sr mom ELEVATOR STAIR LOBBY `�I 11 r j H 1111 oi Li (+ ! ( 1 � � �a�:•HII.w H _ � s i 73 1 7� �,� Page3 of4 . _ . ... u .. _ ---_ - _ _ .._........_ _...... _.....- - EXHIBIT B TERMINAL LAYOUT PLAN KEY WEST INTERNATIONAL AIRPORT ARRIVAL LEVEL p r r I I o.- I ; ofiw o 0} m,e ' I .z�F�Y;'T� ORk a . u IrI 1 e NES I s51 �y IL�J�J I EH � -- BAGG4G�=EWM "k F r [) MAINTENANCE Pv A'S'RaMOMCE '�� —� ELECTRICAL RENtAl•PFb 4ElitAi CAf ROO 3t3,BlY&L7R p', SuNiPt t��iR M !b1 �P i�.r fPaYl '-^. mil EYS ENERGY ElEO _ �,_ Jt a.hi�e I �� ROOM ARRIVAL AREA T� 1 74 tT Paea a o ra I EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Preferential and Exclusive Use Premises American Airline Room No. Description Sq. Ft. Preferential Use Premises 121 Gate Podium 335 141 Baggage Office 36 200-1 Ticketing/Queue 304 200-2 Ticketing/Queue 304 200-3 Ticketing/Queue 304 1283 Exclusive Use Premises 133 Ops Office 174 223 Ticketing Office 161 223A Ticketing Office 32 223B Ticketing Office 18 223C Ticketing Office 103 223D Ticketing Office 99 587 Total Preferential and Exclusive Use Premises- American Airline 1,870 75 Page 1 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Preferential and Exclusive Use Premises Delta Air Lines Room No. Description Sq. Ft. Preferential Use Premises 118 Gate Podium 250 140 Baggage Office 36 200-4 Ticketing/Queue 304 200-5 Ticketing/Queue 304 0 894 Exclusive Use Premises 134 Ops Office 165 224 Ticketing Office 158 224A Ticketing Office 33 224B Ticketing Office 105 224C Ticketing Office 124 585 Total Preferential and Exclusive Use Premises- Delta Air Lines 1,479 76 Page 2 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Preferential and Exclusive Use Premises United Room No. Description Sq. Ft. Preferential Use Premises 122 Gate Podium 250 139 Baggage Office 36 200-9 Ticketing/Queue 304 590 Exclusive Use Premises 132 Ops Office 225 227 Ticketing Office 218 227A Ticketing Office 43 227B Ticketing Office 112 227C Ticketing Office 107 705 Total Preferential and Exclusive Use Premises- United 1,295 77 Page 3 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Preferential and Exclusive Use Premises Silver Airways Room No. Description Sq. Ft. Preferential Use Premises 120 Gate Podium 250 138 Baggage Office 36 200-11 Ticketing/Queue 304 590 Exclusive Use Premises 135 Ops Office 168 228 Ticketing Office 80 228C Ticketing Office 162 410 Total Preferential and Exclusive Use Premises- Silver Airways 1,000 78 Page 4 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Preferential and Exclusive Use Premises JetBlue Airways Room No. Description Sq. F ® Preferential Use Premises 119 Gate Podium 250 20®7 Ticketing/Queue 304 200® Ticketing/Queue 304 858 Exclusive Use Premises 225B Ticketing Office 99 225C Ticketing Office 123 222 Total Preferential and Exclusive Use Premises- JetBlue Airways 1080 79 Page 5 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Preferential and Exclusive Use Premises Allegiant Air Room No. Description Sq. Ft, Gate Podium 117 Gate Podium 250 200-10 Ticketing/Queue 304 554 Ops Office 228B Ticketing Office 102 102 Total Preferential and Exclusive Use Premises- Allegiant it 656 80 Page 6 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Preferential and Exclusive Use Premises Unassigned Room No. Description Sq. ft Preferential Use Premises 142 Baggage Office 36 200-6 Ticketing/Queue 304 200-12 Ticketing/Queue 304 644 Exclusive Use Premises 136 Ops Office 153 137 Ops Office 130 225 Ticketing Office 210 225A Ticketing Office 38 228A Open 70 601 Total Preferential and Exclusive Use Premises- Unassigned 1,245 81 Page 7 of 12 InternationalEXHIBIT C - TERMINAL SQUARE FOOTAGE Key West i Jointi Room Description . Ft. 13 on-Public RR 33 x104 Non-Public RR 32 10 /L(10 ) Baggage Claim 1,848 114 Holdroom7 11 Stair/Escalator 934 115 Elevator lobby Post Secur 298 NEW 128 Mens Restroom Post Sect 36 NEW 129 Womens Restroom Post c 594 145 Baggage Make-Up7,156 137A Baggage Storage 109 11 Ops Corridor 185 NEW Holdroom Bumpout 67 NEW Family estroom 83 NEW Pet Relief 102 17, 1 22 Security Checkpoint 3,243 203 Security Checkpoint 943 206 Security Checkpoint 7 20 Security Checkpoint 934 232 Security Checkpoint Bridg 21 Baggage Screening 3126 233 Baggage Bridge 17 235 Baggage Core 341 26 Baggage Elevator 56 222 Circulation/Corridor 410 226 Circulation/Corridor 21 11,602 Total Joint Use Premises 28,853 82 Page 8o12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International it Other Rentable Space Room No. Description . Ft. 101 RAC Counter 32 12 RAC Counter 22 103 RAC Counter 221 104 RAC Counter 320 1,089 100 F&B Food & Beverage 51 143 Food & Beverage 130 144 Food & Beverage 1,90 144A Food & Beverage 50 216 Food & Beverage 41 219 Food & Beverage 865 21 Food & Beverage , 90 221A Food & Beverage 92 221B Food & Beverage 11 8,603 15 ATM Kiosk 27 123 GiftShop 30 124 Retail Space 126 125 Retail Space 11 16 Retail Space 11 127 Retail Space 19 17 Retail 440 220 Gift Shop/Gift Shop it 670 2, 3 204 Office/TSA93 204A Office 144 204B Office 150 205 Office 18 218 Office 450 29 Storage Room 414 2,259 Total Other Rentable 14,084 83 Page 9 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West I Airport Public Room No. Description Sq. . 100 Public Public Space 1,070 110 Restroorn ill Restroom41 201 Public Space 3,749 201A Elevator Lobby 268 201B Public Space 2,835 208 Womens Restroom 681 9 Mens Restroom 51 212 Familyestroo Total lic Space 10,002 84 Page 10 of 1 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International Airport Administrative and Support Space Room No. Description Sq. Ft. X100 Keys Energy Electric Roon 128 X101 Electrical Room 146 x102 HVAC Mechanical 81 x105 Admin Storage/Stairwell 63 106 Janitors Closet 26 108 Janitor's Closet 67 112 Maintenance Office 205 115A Storage 30 115B Storage 79 115C Storage 79 116 Electric Co m 358 130 Closet 22 210 Access Corridor 400 211 Janitorial Closet 34 213 Electrical Room 425 214 Communications Room 328 215 Elev. Mach. Room 68 234 Stairwell 243 237 Elevator Mach. 54 238 Tool Room 88 239 Generator Room 499 240 Fire Pump Room 330 241 Chiller Control Room 340 242 corridor 347 Total Support Space 4,440 Administrative Space 1898 Total Administrative and Support Space 6,338 85 Page 11 of 12 EXHIBIT C - TERMINAL SQUARE FOOTAGE Key West International it Total Terminal Square . Ft. Total Preferential and Exclusive Use Premises-American Airline 1, 7 Total Preferential and Exclusive Use Premises- Delta Air Lines 1, 7 Total Preferential and Exclusive Use Premises- United 1,295 Total Preferential and Exclusive Use Premises-Silver Airways 1,000 Total Preferential and Exclusive Use Premises-Jet le Airways 1,080 Total Preferential and Exclusive Use Premises-Allegiant Air 66 Total Preferential and Exclusive Use Premises- Unassigned 1,24 Total Preferential and Exclusive Use Premises 8,625 Total Joint Use Premises 28,853 Total Airline Premises 37,478 Total Other Rentable 14,084 Total Rentable Space 51,562 Total Public Space 10,002 Total Productive Space 6 , Total Administrative and Support Space 6,38 Total Terminal Space 67,902 86 Page 12of1 Exhibit D Key West International Airport Airline-Airport Use and Lease Agreement Responsibility of Airport and AIRLINE for Operation and Maintenance of the Terminal Airline Preferential Space Airline Joint Use Space Bag Bag Offices& Operations Ticket Hold Aircraft Bag Bag Airline Claim Office Other Areas Counter Rooms Aprons Makeup Service Restrooms Air Conditioning Maintenance Airport Airport Airport Airport Airport Airport N/A N/A N/A Airport Operations Airport Airport Airport Airport Airport Airport N/A N/A N/A Airport Chilled Air Distribution Airport Airport Airport Airport Airport Airport N/A N/A N/A Airport Lighting Bulb Replacement Airport Airport Airport Airport Airport Airport Airport Airport Airport Airport Maintenance Airport Airport Airport Airport Airport Airport Airport Airport Airport Airport Electrical Maintenance Airport Airport Airport Airport Airport Airport Airport Airport Airport Airport Water Distribution Airport Airport Airport Airport N/A Airport Airport N/A N/A Airport Fixtures Airport N/A N/A N/A N/A Airport Airport N/A N/A Airport Sewage Distribution Airport Airport Airport Airport N/A Airport Airport N/A N/A Airport Fixtures Airport Airport Airport Airport N/A Airport Airport N/A N/A Airport Maintenance Other than Structure Airport Airport N/A Airport Airport Airport Airport Airport Airport Airport Structure Airport Airport Airport Airport Airport Airport Airport Airport Airport Airport Exterior Airport Airport N/A Airport N/A Airport N/A N/A Airport Airport Markings N/A N/A N/A N/A N/A N/A Airport N/A N/A N/A Custodial Service Airport Airline Airline Airline Airport Airport N/A Airport Airport Airport Window Cleaning Exterior N/A N/A Airport Airport N/A Airport N/A N/A N/A N/A Interior N/A N/A Airport Airline N/A Airport N/A N/A N/A N/A NOTE:All areas not part of the Airline's Airline Premises shall be the Airport's responsibility;provided,however,Airport shall not be responsible for any systems installed by Airline,or systems and services installed by Airport,but modified by Airline,unless otherwise agreed to by the parties hereto. 87 EXHIBIT "E" to Signatory Airline Agreement for Key West International Airport RATE AND FEE SCHEDULE SECTION I - DEFINITIONS The following words, terms and phrases used in this Exhibit "E" shall have the meanings set forth in this Section and the meanings shall apply to both the singular and plural forms of such words, terms and phrases. Additional words, terms and phrases used in this Exhibit"E", but not defined in this Section, shall have the meanings ascribed to them in the individual sections of this Exhibit "E", Signatory Airline Agreement or Bond Governance Documents. The specific methodologies for calculating the rates, fees and charges defined below can be found in Section II of this Exhibit "E" and will become effective starting in FY 2022 (October 1, 2021), regardless of when the Airline Agreement is executed. • Sections I - Definitions, Section II - Rate Calculations, and Section III — Cost Centers of this Rate and Fee Schedule will not be revised during the Term of the Agreement unless mutually agreed upon and amended by the Airline and Department. • Section IV— Summary of Airline Rates and Fees and V- Rate Calculation Tables will be updated annually based on approved Budget for upcoming fiscal year. • Section VI— Total Terminal Building square footage will be updated upon DBO of Concourse A; but otherwise, will not be revised during the Term of the Agreement unless mutually agreed upon and amended by the Airline and Department. 1. Airfield Cost Center means the Direct Cost Center further described in Table E-7 of this Exhibit"E". 2. Airport Budget means the Airport capital and operating budgets and allocated administrative costs prepared and periodically revised and updated by the Department and approved/adopted by the Monroe County prior to commencement of the Fiscal Year in which it is to apply. 3. Airport Revenue means all income, and revenue derived by Department in connection with the operation of the Airport and shall not include PFCs, CFCs, insurance proceeds, restricted land sale proceeds or any local,state, or federal assistance, or any interest earned thereon. 4. Amortization Charges means the annual amount to recover Capital Expenditures that are paid for with Department funds exceeding the Annual Amortization Threshold. Amortization Charges shall be calculated by Department based on the expected useful life of the Capital Expenditure and shall include a five percent (5%) annual rate of return, as determined by Director of Airports. Amortization Charges shall not be recovered by Department until the Fiscal Year following DBO or acquisition of the applicable project. 5. Annual Amortization Threshold shall equal fifty thousand dollars ($50,000) in FY 2022 and will increase by twenty-five thousand dollars ($25,000) annually on the first day of each subsequent FY for the Term of this Agreement to a maximum of one hundred fifty thousand dollars ($150,000). 6. Bond Governance Documents means any documents heretofore or hereafter adopted, which authorize the issuance of Bonds. 7. Bonds means any bonds or other financing instrument authenticated and delivered pursuant to the Bond Governance Documents that are payable from or secured by all or any part of the gross revenues of the Airport, grant funds, Customer Facility Charges, or Passenger Facility Charges. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E1 88 8. Capital Expenditure means any single item that is acquired, purchased, or constructed to improve, maintain, or develop the Airport, as well as any extraordinary or substantial expenditure whose objective is to preserve, enhance, or protect the Airport and shall be further differentiated as follows: a. Amortized Capital Expenditure means any Capital Expenditure with a net cost exceeding the Annual Amortization Threshold and shall be recovered through Amortization Charges. b. Non-Amortized Capital Expenditure means any Capital Expenditure with a net cost equal to or less than the Annual Amortization Threshold and shall be expensed in the year in which such Non-Amortized Capital Expenditure achieves DBO. 9. Concourse A Project includes design and construction costs necessary to expand the existing Terminal Building to accommodate future capacity. The projected DBO for the Concourse A Project is projected for October 1, 2024. 10. Cost Center means those areas or functional activities of the Airport used for the purposes of accounting for Revenues and Operation and Maintenance Expenses, Debt Service, Non-amortized Capital Expenditures and Amortization and for calculating and adjusting certain rentals, fees and charges described herein, as they now exist or may hereafter be modified, changed, or developed. 11. Customer Facility Charges or"CFC" means charges collected by the rental car companies and remitted to County. This term includes interest earnings on Customer Facility Charge proceeds 12. Date of Beneficial Occupancy or"DBO" means the date a Capital Expenditure is complete and ready for use by intended user(s) of said Capital Expenditure. 13. Debt Service means any principal, interest, premium, and other fees and amounts either paid or accrued for Bonds (exclusive of capitalized interest) or Other Indebtedness. 14. Debt Service Coverage means twenty five percent(25%) of Debt Service in a Rate Setting Period. 15. Debt Service Reserve Requirement has the meaning set forth in the Bond Governance Documents. 16. Direct Cost Centers includes the Cost Centers listed in Section III of this Exhibit"E". 17. Direct Bill Charges includes those charges payable that are directly assignable to all Commercial Air Transportation Companies, the basis for which are Operation and Maintenance Expenses (including Security Expense), Amortization and Debt Service Expense, if any, which have been omitted from the calculation of the Terminal Rental Rate, Airfield Landing Fee Rate and Passenger Boarding Bridge Charge. 18. Exclusive Use Premises means those portions of the Terminal Building assigned to Airline,through the Premises Notice, for Airline's Exclusive Use, as more particularly identified in the attached Exhibits"C". 19. Federal Inspection Services ("FIS") Facility means the systems, equipment and areas of the Airport designated by County for the inspection and processing of international passengers and their baggage by U.S. Customs and Border Protection. 20. Federal Inspection Services (FIS) Facility Fee means a fee assessed, if any, by Department for use of the FIS Facility by a Commercial Air Transportation Company transporting international passengers. 21. General Aviation Credit means the amount of revenue generated by fuel flowage fees received by the Department and included as a credit in the Landing Fee calculation. 22. Indirect Cost Centers includes the Cost Centers described in Section III of this Exhibit"E". Exhibit"E"to 2021 Signatory Airline Agreement-EYW E2 89 23. Joint Use Charges means the total charges imposed for use of the Joint Use Premises and will be prorated amongst users as presented in Section 11.4 of this Exhibit"E". 24. Joint Use Premises means those areas of the Terminal Building (excluding Exclusive Use, Preferential Use and Public Space) and equipment assigned for use by more than one (1) Commercial Air Transportation Company along with other authorized users of the Airport as shown in Exhibit"B". 25. Landed Weight means the maximum gross certificated landing weight, as certified by the FAA, in one thousand-pound units,for each aircraft operated by Airline at the Airport. For all landing fee computations, said sum shall be rounded up to the nearest thousand (1,000) pound units. 26. Landing Fee means a fee assessed by Department on Air Transportation Companies based on the Landed Weight of each Revenue Landing as calculated in Table E-2. 27. Non-Signatory Airline means a Commercial Air Transportation Company operating at the Airport that is not a Signatory Airline. 28. Non-Signatory Premium means a surcharge added to Non-Signatory Airlines Landing Fees, Terminal Rental Rates, Passenger Boarding Bridge Rates and any applicable Direct Bill Charges. 29. Operation and Maintenance Expenses means Department's costs for the operation, maintenance and repair of the Airport and shall include, but shall not be limited to, salaries and employee benefits, utility costs, ordinary maintenance, administrative and general expenses,security, and all such other expenses and included in the Airport Budget (as may be amended) for each Rate Setting Period. 30. Operation and Maintenance Reserve Fund means an account into which an amount equal to one sixth (1/6) of the amount appropriated in the annual budget for Operation and Maintenance Expenses for the then current Fiscal Year is deposited. 31. Other Indebtedness means any debt other than Bonds incurred by Department for Airport purposes. 32. Passenger Boarding Bridge ("PBB") means any passenger boarding bridge serving aircraft at the Terminal Building. 33. Passenger Boarding Bridge ("PBB") Rate means the annual amount charged by the Department for use of a PBB by a Commercial Air Transportation Company as calculated in Table E-3. 34. Passenger Boarding Bridge Cost Center means the Direct Cost Center further described in Section III of this Exhibit"E". 35. Passenger Facility Charge ("PFC") means those charges collected by air carriers and remitted to the County pursuant to the authority granted by 49 U.S.C.Section 40117 and 14 Code of Federal Regulations (CFR) Part 158, as amended from time to time, in respect of any component of the Airport and interest earnings thereon, net of amounts that collecting air carriers are entitled to retain for collecting, handling, and remitting such PFC revenues. 36. Per Use Gate Charge means a charge assessed by Department for each use of a Gate by a Non- Signatory Airline as calculated in Table E-4. 37. Per Use Passenger Boarding Bridge Charge means a charge assessed by Department for each use of a Passenger Boarding Bridge that is not preferentially assigned to a Commercial Air Transportation Company as calculated in Table E-6. 38. Per Use Ticket Counter Charge means a charge assessed by Department for each use of unassigned ticket counter (two (2) positions) and one (1) baggage well as calculated in Table E-5. Per Use Ticket Counter Charges shall not apply to the use of ticket counter areas that are included in Airline's Preferential Use Premises pursuant to an agreement with Department. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E3 90 39. Preferential Use Premises means those portions of the Terminal assigned to Airline,through the Premises Notice, for Airline's Preferential Use, as more particularly identified in the attached Exhibits B and C. 40. Premises means those areas assigned by Department for use by Airline, which are comprised of Exclusive Use, Preferential Use Premises and Joint Use Premises. 41. Prior Period Debt Service Coverage means the Debt Service Coverage paid by the Airlines in the preceding Rate Setting Period. 42. Rates and Fees Schedule means the Rates and Fees Schedule attached hereto as Exhibit"E". 43. Rate Setting Period means the Fiscal Year for which the rates, fees and charges are being calculated hereunder. 44. Security Reimbursement Charge means the annual amount charged by the Department to each Commercial Air Transportation Company operating at the Airport for recovery of security related expenses attributable to Department providing security response functions required by the Transportation Security Administration (TSA) or its successor as identified in the Airport Security Plan and will be prorated to all Commercial Air Transportation Companies as presented in Section 11.7 of this Exhibit E. 45. Terminal Cost Center means the Direct Cost Center further described in Section III of this Exhibit"E". 46. Total Productive Space means the divisor in the calculation of the Terminal Rental Rate prior to DBO of the Concourse A Project as presented in Attachment E-3. 47. Terminal Rental Rate means the charges imposed by Department on a per square foot basis for the use of the Premises, as calculated in Table E-1. 48. Total Rentable Space means all space in the Terminal Building, which may be assigned and used by a tenant. At DBO of the Concourse A Project, Attachment E-3 will be updated to reflect Total Rentable Space in Concourse A of the Terminal Building. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E4 91 SECTION II - RATE CALCULATIONS 1. Explanation of Rate Calculation Line Items. The following Line Items listed in Tables E-1 through E-3 are included in the calculation of Terminal Rental Rate, Landing Fee Rate and Passenger Boarding Bridge Rate for each Rate Setting Period. Each Line Item in Tables E-1 through E-3 is identified by the corresponding letter set forth below. Line Item A. Operation and Maintenance Expenses. This Line Item includes those expenses directly assignable to the Terminal, Airfield or Passenger Boarding Bridge Cost Centers ("Direct Operation and Maintenance Expenses") and those expenses associated with operation and maintenance of the Airport and assignable to the Indirect Cost Centers ("Indirect Operation and Maintenance Expenses"). Indirect Operation and Maintenance Expenses, if any, shall be allocated to the Direct Cost Centers on the basis of the procedures set forth in Section III (2) below. This Line Item also includes Non-amortized Capital Expenditures attributable to the Terminal,Airfield, or Passenger Boarding Bridge Cost Centers,which individually do not exceed the Annual Amortization Threshold in any Rate Setting Period and which are not included in Amortization Charges. The sum of Direct Operation and Maintenance Expenses and Indirect Operation and Maintenance Expenses are hereinafter referred to as"Operation and Maintenance Expenses". Line Item B. Amortization Charges. This Line Item includes Amortization Charges assignable to the Terminal,Airfield, or Passenger Boarding Bridge Cost Centers. Line Item C. Operation and Maintenance Reserve Fund Requirement. This Line Item includes the Operation and Maintenance Reserve Fund required amount for the current Rate Setting Period allocated to the Terminal,Airfield and Passenger Boarding Bridge Cost Centers. Line Item D. Debt Service. This Line Item includes Debt Service directly assignable to the Terminal, Airfield or Passenger Boarding Bridge Cost Centers ("Direct Debt Service") and Debt Service assignable to the Indirect Cost Centers ("Indirect Debt Service"), if any, less PFCs assignable to the Debt Service, if any. Indirect Debt Service shall be allocated to the Direct Cost Centers on the basis of the procedures set forth in Section III (2) below for the distribution of Indirect Operation and Maintenance Expenses. The sum of Direct Debt Service and Indirect Debt Service are hereinafter referred to as "Total Debt Service". Debt Service costs for future bond issues/series, if any, shall be allocated by the Department based on the estimated benefits to the various cost centers. Line Item E. Debt Service Coverage (Rolling). This Line Item includes Debt Service Coverage attributable to the Terminal, Airfield, or Passenger Boarding Bridge Cost Centers for the current Rate Setting Period less the Prior Period Debt Service Coverage. Line Item F. Total Requirement. The Total Requirement is the sum of Line Items A through E applicable to Terminal,Airfield and Passenger Boarding Bridge Cost Centers. Line Item G. Credits. This Line Item identifies the Credits to the Total Requirement. Line Item H. Net Requirement. The Net Requirement equals Total Requirement minus Credits. Line Item I. Line Item I in Tables E-1 through E-3 shall be defined as follows: • Total Productive Space / Total Rentable Space'. "Total Productive Space" and "Total Rentable Space" in Table E-1 reflects the square footage in the Terminal Building presented in Exhibit C and in Attachment E-3 to this Exhibit"E". Prior to DBO of Concourse A,Total Productive Space shall be used in the Terminal Rental Rate calculation.Starting at DBO of Concourse A,Total Rentable Space shall be used in the Terminal Rental Rate calculation. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E5 92 • Total Landed Weight. The term "Total Landed Weight" in Table E-2 means the Landed Weight for all Commercial Air Transportation Companies, including Signatory and Non-Signatory Airlines. • Total Passenger Boarding Bridges. The term "Total Passenger Boarding Bridges" in Table E-3 means the total number of Passenger Boarding Bridges. Line Item J. Line Item J in Tables E-1 through E-3 shall be calculated as follows: • Terminal Rental Rate. Calculated in Table E-1 as Terminal Net Requirement divided by Total Productive Space or Total Rentable Space. • Landing Fee Rate. Calculated in Table E-2 as Airfield Net Requirement divided by Total Landed Weight. • Passenger Boarding Bridge Rate. Calculated in Table E-3 as Passenger Boarding Bridge Net Requirement divided by Total Passenger Boarding Bridges. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E6 93 2. Calculation of Terminal Rental Rate, Landing Fee and Passenger Boarding Bridge Rates. The Terminal Rental Rate, Landing Fee Rate and Passenger Boarding Bridge Rate for each Rate Setting Period shall be calculated as set forth in this subsection. A. Terminal Rental Rate.The methodology for calculating the Terminal Rental Rate is set forth in Table E-1 below. Table E-1. Terminal Rental Rate Calculation Line Item (See Section II(1)above for corresponding descriptions) Operation and Maintenance Expenses A Amortization Charges B Operation and Maintenance Reserve Fund Requirement C Debt Service D Debt Service Coverage (Rolling) E Terminal Total Requirement F =A+ B + C + D + E Less: Credits to Terminal Total Requirement G Terminal Net Requirement H = F -G Total Productive Space/Total Rentable S acez I Terminal Rental Rate (per square foot J = H /I Non-Signatory Premium K=125% Non-Signatory Terminal Rental Rate (per square foot) L = J * K 2 Prior to DBO of Concourse A,Total Productive Space shall be used in the Terminal Rental Rate calculation.Starting at DBO of Concourse A,Total Rentable Space shall be used in the Terminal Rental Rate calculation. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E7 94 B. Landinq Fee Rate. The methodology for calculating the Landing Fee Rate is set forth in Table E-2 below. Table E-2. Landing Fee Rate Calculation Line Item (See Section II(1)above for corresponding descriptions) Operation and Maintenance Expenses A Amortization Charges B Operation and Maintenance Reserve Fund Requirement C Debt Service D Debt Service Coverage Rollin E Airfield Total Requirement F = A+ B + C + D + E Less: Credits to Airfield Total Requirement G Airfield Net Requirement H = F - G Total Landed Weight (Passenger and Cargo Airlines) I Landing Fee Rate (per 1,000 lb.) J = H /I Non-Signatory Premium K=125% Non-Signatory Landing Fee Rate (per 1,000 Ibs) L = J * K C. Passenger Boarding Bridge Charge: The methodology for calculating the Passenger Boarding Bridge Charge is set forth in Table E-3 below. Table E-3. Passenger Boarding Bridge.Charge Calculation Line Item (See Section I1(1)above for corresponding descriptions) Operation and Maintenance Expenses A Amortization Charges B Operation and Maintenance Reserve Fund Requirement C Debt Service D Debt Service Coverage Rollin E PBB Total Requirement F = A+ B + C + D + E Less: Credits to PBB Total Requirement G PBB Net Requirement H = F - G Total Number of PBBs I Average PBB Charge (per PBB J = H /I Exhibit"E"to 2021 Signatory Airline Agreement-EYW E8 95 3. Calculation and Allocation of Joint Use Charges. Total Joint Use Charges shall be an amount equal to the product of the Terminal Rental Rate for the Rate Setting Period multiplied by total square footage of the Joint Use Premises. Each Commercial Air Transportation Company's share of Joint Use Charges shall be allocated as follows: a. For Non-Signatory Airlines: Non-Signatory Joint Use Charges will be equivalent to the Non- Signatory Airlines total enplanements divided by total enplanements for all Commercial Air Transportation Companies multiplied by the Total Joint Use Charges multiplied by the Non- Signatory Premium. Non-Signatory Joint Use Charges will be prorated to all Non-Signatory Airlines according to the ratio of the number of each Non-Signatory Airline's Enplaned Passengers at the Airport to the total Non-Signatory Airlines' Enplaned Passengers. b. For Signatory Airlines: Total Signatory Joint Use Charges will be equivalent to Total Joint Use Charges less any Non-Signatory Joint Use Charges.Twenty percent(20%) of the Total Signatory Joint Use Charges will be prorated equally among all Signatory Airlines, excluding Affiliates. Eighty percent (80%) of the Total Signatory Joint Use Charges will be prorated according to the ratio of the number of each Signatory Airline's Enplaned Passengers including Signatory Airline's Affiliates' Enplaned Passengers at the Airport to the total Signatory Airlines' Enplaned Passengers. The methodology for calculating and allocating Joint Use Charges is shown below in Table E-4 Table E-4. Joint Use Charges Calculation Line Item Total Joint Use Space (square feet) A Terminal Rental Rate (per square foot) (see Table E-1) B Joint Use Requirement C= A* B Total Signatory Enplaned Passengers D Total Non-Signatory Enplaned Passengers E Total Enplaned Passengers F = D+ E Average Joint Use Charge Per Enplaned Passenger G = C/F Non-Signatory Joint Use Charge Per Enplaned Passenger H = G * 125% Total Non-Signatory Joint Use Charges I = H * E Net Signatory Joint Use Charges J = C- I Net Signatory Joint Use Requirement Allocation — K= J * 80% Enplaned Passenger Based Net Signatory Joint Use Requirement Allocation—Fixed L= J *20% Based Exhibit"E"to 2021 Signatory Airline Agreement-EYW E9 96 4. Per Use Gate Use Charges shall be calculated as shown below in Table E-5. Table E-5. Per Use Gate Char a Calculation Line Item Total Holdroom Area A Number of Gates B Average Square Footage Per Gate C= A/ B Terminal Rental Rate (per square foot) (see Table E-1) D Annual Cost Per Gate E = C * D Days in Year F = 365 Per Day Gate Charge G = E/ F Daily Usage Divisor H = 3 Per Use Gate Charge I = G/ H Non-Signatory Premium J = 25% Non-Signatory Per Day Gate Charge K = I * (1+ J) 5. Per Use Ticket Counter Charge shall be calculated as shown below in Table E-6. Table E-6.: Per Use Ticket Counter Charge Calculation Line Item Total Ticket Counter Area A Number of Ticket Counters B Average Square Footage Per Ticket Counter C= A/ B Terminal Rental Rate (per square foot) (see Table E-1) D Annual Cost Per Ticket Counter E = C * D Days in Year F = 365 Per Day Ticket Counter Charge G = E/ F Daily Usage Divisor H = 3 Per Use Ticket Counter Charge I = G/ H Non-Signatory Premium J = 25% Non-Signatory Per Day Ticket Counter Charge K = 1 * (1+ J) 6. Per Use Passenger Boarding Bridge Charge shall be calculated as shown below in Table E-7. Table E-7.i Per Use Passenger Boarding Bridge Charge Calculation Line Item Average PBB Charge (per PBB) (See Table E-3) A Daily Usage Divisor B = 3 Per Use PBB Charge C = A/ B Non-Signatory Premium D = 25% Non-Signatory Per Use PBB Charge E = C* (1+ D) Exhibit"E"to 2021 Signatory Airline Agreement-EYW E10 97 7. Security Reimbursement Charge shall be allocated to each Commercial Air Transportation Company based on Commercial Air Transportation Company's estimated proportionate share of Enplanements. as shown in Table E-8 below. Table E-8. iSecurity Reimbursement Charge Calculation Line Item Security Reimbursement Requirement 3 A Total Enplaned Passengers B Security Reimbursement Charge (Per Enplaned C = A/ B Passenger) Non-Signatory Premium D = 25% Non-Signatory Per Day PBB Charge E = C* (1+ D) 3 To be Determined by the Airport Director each Fiscal Year in accordance with the Airport Security Plan. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E11 98 SECTION III —COST CENTERS 1. Direct Cost Centers. The Direct Cost Centers include, but are not limited to, those Cost Centers listed below. Direct Cost Centers Cost Center Description of Area Included or Functional Activity Airfield Those portions of the Airport provided for the landing, taking off, and taxiing of aircraft, including runways, taxiways, approach and runway protection zones, safety areas, infield areas, landing and navigational aids, and Aircraft Parking Aron . Terminal The commercial passenger airline facilities at the Airport, including the Terminal and associated land, facilities, equipment, whether owned, operated or maintained by Department. This Cost Center includes the outbound baggage handling system and inbound baggage handling system used to deliver checked baggage to arriving passengers, which includes baggage claim areas, systems, equipment and carousels. Passenger Boarding Bridge Any passenger boarding bridge used to facilitate enplaning and deplaning passengers from and to the Terminal Building. General Aviation Areas designated for fixed base operator or other general aviation uses, including general aviation aprons at the Airport. Other Areas not included in the Airfield, Terminal, Passenger Boarding Bridge, and General Aviation Cost Centers 2. Indirect Cost Centers. The Indirect Cost Center are any Cost Centers to which Operation and Maintenance Expenses and Capital Expenditures, if any, cannot be directly assigned to a Direct Cost Center. Operation and Maintenance Expenses and Capital Expenditures allocated to the Indirect Cost Center shall be allocated to the Direct Cost Centers on the basis of each Direct Cost Center's share of total Operation and Maintenance Expenses for all Direct Cost Centers. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E12 99 SECTION IV—SUMMARY OF AIRLINE RATES AND FEES ATTACHMENT"E-1"TO EXHIBIT"E" FISCAL YEAR 2022 October 1, 2021,through September 30, 2022 1. Terminal Rental Rate. Signatory Airline: $XX per square foot. Non-Signatory Airline: $XX per square foot. 2. Landinq Fee Rate. Signatory Airline: $XX per 1,000 pounds of Landed Weight. Non-Signatory Airline: $XX per 1,000 pounds of Landed Weight. 3. Passenger Boarding Bridge Rate. Signatory Airline: $XX per Passenger Boarding Bridge. Non- Signatory Airline: $XX per Passenger Boarding Bridge. 4. Federal Inspection Services (FIS) Facility Fee Rate: Not applicable at this time. 5. Fuel Flowage Fee: Not applicable at this time. 6. Per Use Terminal Charges: a. Per Use Gate Charge: Signatory Airline: $XX.00 per day, or any portion thereof. Non- Signatory Airline: $XX.00 per day, or any portion thereof. b. Per Use Ticket Counter Charge: Signatory Airline: $XX.00 per day, or portion thereof, of ticket counter area. Non-Signatory Airline: $XX.00 per day, or portion thereof, of ticket counter area. c. Per Use Passenger Boarding Bridge Charge: Signatory Airline: $XX.00 per day, or any portion thereof. Non-Signatory Airline: $XX.00 per day, or any portion thereof. Exhibit"E"to 2021 Signatory Airline Agreement-EYW E13 100 SECTION V—STATEMENT OF RATES ATTACHMENT"E-2"TO EXHIBIT"E" FISCAL YEAR 2022 October 1, 2021,through September 30, 2022 Exhibit"E"to 2021 Signatory Airline Agreement-EYW E14 101 SECTION VI—TOTAL TERMINAL BUILDING SPACE ATTACHMENT"E-3"TO EXHIBIT"E" FISCAL YEAR 2022 October 1, 2021,through September 30, 2022 Total Rentable Space will be updated upon DBO of the Concourse A Project TERMINAL SPACE INVENTORY-Pre-DBO Line Item Square Feet AIRLINE RENTABLE SPACE Airline Exclusive Space Ticketing Office 2,197 Operations Office [A] 1,015 Total Exclusive Space 3,212 Airline Preferential Space: Departure Gates 1,585 Bag Offices 180 Ticketing &Queue 3,648 Total Airline Preferential Space [B] 5,413 Airline Joint Use Space Restrooms(Non-Public) 65 Baggage Claim 1,848 Hold Rooms& Circulation 6,744 Public Restrooms 1,144 BMU/Bag Storage/Circulation 7,450 Security Checkpoint 6,144 Baggage Screening 4,830 Circulation 628 Total Airline Joint Use Space [C] 28,853 Total-Airline Rentable Space [D]_[A+B+C] 37,478 OTHER RENTABLE/PRODUCTIVE SPACE Concessions Rental Car 1,089 Food & Beverage Concessions 8,603 Retail Concessions 2,133 Offices/TSA 2,259 Total-Concession Space [E] 14,084 Public Space [F] 10,002 TOTAL PRODUCTIVE SPACE [G]_[D+E +F] 61,564 Administrative [H] 1,898 Support Space [i] 4,440 TOTAL TERMINAL SPACE [J]_[G+H +1] 67,902 Exhibit"E"to 2021 Signatory Airline Agreement-EYW E15 102 EXHIBIT F- FACILITIES USE PERMIT AIRLINE: ADDRESS: TELEPHONE/E-MAIL: NAME AND TITLE OF AUTHORIZED REPRESENTATIVE: In accordance with Article 4 of Signatory Airline Agreement for KEY WEST INTERNATIONAL Airport dated (the "Agreement"), by and between Monroe County, a political subdivision of the State of Florida ("County"),and a corporation,having its office and principal place of business at ("Airline '),Airline shall have a short- term lease to utilize the following space(s) ("Leased Area"),which shall commence and terminate on the dates/times listed below,unless otherwise agreed to in writing by the Department: Space Type Location Square Commencement Termination Footage Date/Time Date/Time By signing below, I hereby certify that I have the authority to represent and obligate Airline and that Airline shall comply with all terms and conditions of the Agreement and this Facilities Use Permit applicable to the use of the Leased Area. AIRLINE: Signature ofAuthorized Representative ofAirline Title Date APPROVED BY: Airport Director, Department ofAirports Date TRANSMITTED TO AIRPORT DIRECTOR BY: Name Date 103 Exhibit G Activity Report Key West International Airport Monthly Landings Report "ill in cells highlighted in yellow: Airline Logo Airline Name EYW Landing Report for the month of _202_ Type of Aircraft Enplanements: 0 (Revenue /Non-Revenue ) Deplanements: 0 (Revenue /Non-Revenue ) Arrivals: Departures: Type of Aircraft Enplanements: 0 (Revenue /Non-Revenue ) Deplanements: 0 (Revenue /Non-Revenue ) Arrivals: Departures: Type of Aircraft Enplanements: 0 (Revenue /Non-Revenue ) Deplanements: 0 (Revenue /Non-Revenue ) Arrivals: Departures: Type of Aircraft Enplanements: 0 (Revenue /Non-Revenue ) Deplanements: 0 (Revenue /Non-Revenue ) Arrivals: Departures: TOTAL ENPLANEMENTS: 0 TOTAL DEPLANEMENTS: 0 TOTAL ARRIVALS: 0 TOTAL DEPARTURES: 0 104 Signatory Airline Agreement—EYW EXHIBIT "H" - FEDERAL NONDISCRIMINATION REQUIREMENTS 105 Pt. 21 49 CFR Subtitle A (10-1-12 Edition) PART 21—NONDISCRIMINATION IN proved before that effective date. This FEDERALLY-ASSISTED PROGRAMS part does not apply to: OF THE DEPARTMENT OF TRANS- (1) Any Federal financial assistance PORTATION—EFFECTUATION OF by way of insurance or guaranty con- TITLE VI OF THE CIVIL RIGHTS ACT tracts; OF 1964 (2) Money paid, property transferred, or other assistance extended before the effective date of this part, except Sec.21.1 Purpose. where such assistance was subject to 21.3 Application of this part. the title VI regulations of any agency 21.5 Discrimination prohibited. whose responsibilities are now exer- 21.7 Assurances required. cised by this Department; 21.9 Compliance information. (3) Any assistance to any individual 21.11 Conduct of investigations. who is the ultimate beneficiary; or 21.13 Procedure for effecting compliance. 21.15 Hearings. (4) Any employment practice, under 21.17 Decisions and notices. any such program, of any employer, 21.19 Judicial review. employment agency, or labor organiza- 21.21 Effect on other regulations,forms, and tion, except to the extent described in instructions. §21.5(c). 21.23 Definitions. APPENDIX A TO PART 21—ACTIVITIES TO WHICH The fact that a type of Federal finan- THIS PART APPLIES cial assistance is not listed in appendix APPENDIX B TO PART 21—ACTIVITIES TO WHICH A to this part shall not mean, if title THIS PART APPLIES WHEN A PRIMARY OB- VI of the Act is otherwise applicable, JECTIVE OF THE FEDERAL FINANCIAL As- that a program is not covered. Other SISTANCE Is To PROVIDE EMPLOYMENT types of Federal financial assistance APPENDIX C TO PART 21—APPLICATION OF under statutes now in force or herein- PART 21 TO CERTAIN FEDERAL FINANCIAL after enacted may be added to appendix ASSISTANCE OF THE DEPARTMENT OF TRANSPORTATION A to this part. AUTHORITY:42 U.S.C.2000d-2000d-7. (b) In any program receiving Federal financial assistance in the form, or for SOURCE: 35 FR 10080, June 18, 1970, unless the acquisition, of real property or an otherwise noted. interest in real property, to the extent §21.1 Purpose. that rights to space on, over, or under any such property are included as part The purpose of this part is to effec- of the program receiving that assist- tuate the provisions of title VI of the ante, the nondiscrimination require- Civil Rights Act of 1964 (hereafter re- ment of this part shall extend to any ferred to as the Act) to the end that no facility located wholly or in part in person in the United States shall, on that space. the grounds of race, color, or national origin, be excluded from participation [35 FR 10080, June 18, 1970, as amended at 68 in, be denied the benefits of, or be oth- FR 51389,Aug.26,2003] erwise subjected to discrimination under any program or activity receiv- ing Federal financial assistance from (a) General. No person in the United the Department of Transportation. States shall, on the grounds of race, color, or national origin be excluded §21.3 Application of this part. from participation in, be denied the (a) This part applies to any program benefits of, or be otherwise subjected for which Federal financial assistance to discrimination under, any program is authorized under a law administered to which this part applies. by the Department, including the types (b) Specific discriminatory actions of Federal financial assistance listed in prohibited: appendix A to this part. It also applies (1) A recipient to which this part ap- to money paid, property transferred, or plies may not, directly or through con- other Federal financial assistance ex- tractual or other arrangements, on the tended after the effective date of this grounds of race, color, or national ori- part pursuant to an application ap- gin. 188 106 Office of the Secretary of Transportation §21.5 (i) Deny a person any service, finan- cant may not make selections with the cial aid, or other benefit provided purpose or effect of excluding persons under the program; from, denying them the benefits of, or (ii) Provide any service, financial aid, subjecting them to discrimination or other benefit to a person which is under any program to which this regu- different, or is provided in a different lation applies, on the grounds of race, manner, from that provided to others color, or national origin; or with the under the program; purpose or effect of defeating or sub- (iii) Subject a person to segregation stantially impairing the accomplish- or separate treatment in any matter ment of the objectives of the Act or related to his receipt of any service, fi- this part. nancial aid, or other benefit under the (4) As used in this section the serv- program; ices, financial aid, or other benefits (iv) Restrict a person in any way in provided under a program receiving the enjoyment of any advantage or Federal financial assistance include privilege enjoyed by others receiving any service, financial aid, or other ben- any service, financial aid, or other ben- efit provided in or through a facility efit under the program; provided with the aid of Federal finan- (v) Treat a person differently from cial assistance. others in determining whether he satis- (5) The enumeration of specific forms fies any admission, enrollment, quota, of prohibited discrimination in this eligibility, membership, or other re- paragraph does not limit the generality quirement or condition which persons of the prohibition in paragraph (a) of must meet in order to be provided any this section. service, financial aid, or other benefit this provided under the program; (6) Examples demonstrating the ap- (vi) Deny a person an opportunity to plication of the provisions of this sec- participate in the program through the tion to certain types of Federal finan- provision of services or otherwise or af- ford him an opportunity to do so which partment of Transportation are con- is different from that afforded others tained in appendix C of this part. under the program; or (7) This part does not prohibit the (vii) Deny a person the opportunity consideration of race, color, or na- to participate as a member of a plan- tional origin if the purpose and effect ning, advisory, or similar body which is are to remove or overcome the Con- an integral part of the program. sequences of practices or impediments (2) A recipient, in determining the which have restricted the availability types of services, financial aid, or other of, or participation in, the program or benefits, or facilities which will be pro- activity receiving Federal financial as- vided under any such program, or the sistance, on the grounds of race, color, class of person to whom, or the situa- or national origin. Where prior dis- tions in which, such services, financial criminatory practice or usage tends, on aid, other benefits, or facilities will be the grounds of race, color, or national provided under any such program, or origin to exclude individuals from par- the class of persons to be afforded an ticipation in, to deny them the benefits opportunity to participate in any such of, or to subject them to discrimina- program; may not, directly or through tion under any program or activity to contractual or other arrangements, which this part applies, the applicant utilize criteria or methods of adminis- or recipient must take affirmative ac- tration which have the effect of sub- tion to remove or overcome the effects jecting persons to discrimination be- of the prior discriminatory practice or cause of their race, color, or national usage. Even in the absence of prior dis- origin, or have the effect of defeating criminatory practice or usage, a recipi- or substantially impairing accomplish- ent in administering a program or ac- ment of the objectives of the program tivity to which this part applies, is ex- with respect to individuals of a par- pected to take affirmative action to as- ticular race, color, or national origin. sure that no person is excluded from (3) In determining the site or loca- participation in or denied the benefits tion of facilities, a recipient or appli- of the program or activity on the 189 107 §21.7 49 CFR Subtitle A (10-1-12 Edition) grounds of race, color, or national ori- (d)A recipient may not make a selec- gin. tion of a site or location of a facility if (c) Employment practices: the purpose of that selection, or its ef- (1) Where a primary objective of the fect when made, is to exclude individ- Federal financial assistance to a pro- uals from participation in, to deny gram to which this part applies is to them the benefits of, or to subject provide employment, a recipient or them to discrimination under any pro- other party subject to this part shall gram or activity to which this rule ap- not, directly or through contractual or plies, on the grounds of race, color, or other arrangements, subject a person national origin; or if the purpose is to, to discrimination on the ground of or its effect when made will, substan- race, color, or national origin in its tially impair the accomplishment of employment practices under such pro- the objectives of this part. gram (including recruitment or re- [35 FR 10080, June 18, 1970, as amended by cruitment advertising, hiring, firing, Amdt. 72-2, 38 FR 17997, July 5, 1973; 68 FR upgrading, promotion, demotion, trans- 51389,Aug.26,2003] fer, layoff, termination, rates of pay or §21.7 Assurances required. other forms of compensation or bene- fits, selection for training or appren- (a) General. (1) Every application for ticeship, use of facilities, and treat- Federal financial assistance to which ment of employees). Such recipient this part applies, except an application shall take affirmative action to insure to which paragraph (b) of this section that applicants are employed, and em- applies, and every application for Fed- ployees are treated during employ- eral financial assistance to provide a ment, without regard to their race, facility shall, as a condition to its ap- color, or national origin. The require- proval and the extension of any Fed- ments applicable to construction em- eral financial assistance pursuant to ployment under any such program the application, contain or be accom- shall be those specified in or pursuant panied by, an assurance that the pro- to Part III of Executive Order 11246 or gram will be conducted or the facility any Executive order which supersedes operated in compliance with all re- it. quirements imposed by or pursuant to this part. Every awardof Federal finan- (2) Federal financial assistance to cial assistance shall require the sub- programs under laws funded or admin- mission of such an assurance. In the istered by the Department which have case where the Federal financial assist- as a primary objective the providing of ante is to provide or is in the form of employment include those set forth in personal property, or real property or appendix B to this part. interest therein or structures thereon, (3) Where a primary objective of the the assurance shall obligate the recipi- Federal financial assistance is not to ent, or, in the case of a subsequent provide employment, but discrimina- transfer, the transferee, for the period tion on the grounds of race, color, or during which the property is used for a national origin in the employment purpose for which the Federal financial practices of the recipient or other per- assistance is extended or for another sons subject to the regulation tends, on purpose involving the provision of the grounds of race, color, or national similar services or benefits, or for as origin, to exclude individuals from par- long as the recipient retains ownership ticipation in, to deny them the benefits or possession of the property, which- of, or to subject them to discrimina- ever is longer. In all other cases the as- tion under any program to which this surance shall obligate the recipient for regulation applies, the provisions of the period during which Federal finan- paragraph (c)(1) of this section shall cial assistance is extended to the pro- apply to the employment practices of gram. The Secretary shall specify the the recipient or other persons subject form of the foregoing assurances, and to the regulation, to the extent nec- the extent to which like assurances essary to assure equality of oppor- will be required of subgrantees, con- tunity to, and nondiscriminatory tractors and subcontractors, trans- treatment of, beneficiaries. ferees, successors in interest, and other 190 108 Office of the Secretary of Transportation §21.9 participants. Any such assurance shall to the application: (1) Contain or be ac- include provisions which give the companied by a statement that the United States a right to seek its judi- program is (or, in the case of a new cial enforcement. program, will be) conducted in compli- (2) In the case where Federal finan- ante with all requirements imposed by cial assistance is provided in the form or pursuant to this part, and(2) provide of a transfer of real property, strut- or be accompanied by provision for tures, or improvements thereon, or in- such methods of administration for the terest therein, from the Federal Gov- program as are found by the Secretary ernment, the instrument effecting or to give reasonable guarantee that the recording the transfer shall contain a applicant and all recipients of Federal covenant running with the land assur- financial assistance under such pro- ing nondiscrimination for the period gram will comply with all require- during which the real property is used ments imposed by or pursuant to this for a purpose for which the Federal fi- part. nancial assistance is extended or for another purpose involving the provi- [35 FR 10080, June 18, 1970, as amended at 68 Sion of similar services or benefits. FR 51389,Aug.26,2003] Where no transfer of property or inter- §21.9 Compliance information. est therein from the Federal Govern- ment is involved, but property is ac- (a) Cooperation and assistance. The quired or improved with Federal finan- Secretary shall to the fullest extent cial assistance, the recipient shall practicable seek the cooperation of re- agree to include such covenant in any cipients in obtaining compliance with subsequent transfer of such property. this part and shall provide assistance When the property is obtained from the and guidance to recipients to help Federal Government, such covenant them comply voluntarily with this may also include a condition coupled part. with a right to be reserved by the De- (b) Compliance reports. Each recipient partment to revert title to the prop- shall keep such records and submit to erty in the event of a breach of the cov- the Secretary timely, complete, and enant where, in the discretion of the accurate compliance reports at such Secretary, such a condition and right times, and in such form and containing of reverter is appropriate to the stat- such information, as the Secretary ute under which the real property is may determine to be necessary to en- obtained and to the nature of the grant able him to ascertain whether the re- and the grantee. In such event if a cipient has complied or is complying transferee of real property proposes to with this part. In the case in which a mortgage or otherwise encumber the primary recipient extends Federal fi- real property as security for financing nancial assistance to any other recipi- construction of new, or improvement of ent, such other recipient shall also sub- existing, facilities on such property for mit such compliance reports to the pri- the purposes for which the property mary recipient as may be necessary to was transferred, the Secretary may enable the primary recipient to carry agree, upon request of the transferee out its obligations under this part. In and if necessary to accomplish such fi- general recipients should have avail- nancing, and upon such conditions as able for the Secretary racial and ethnic he deems appropriate, to subordinate data showing the extent to which mem- such right of reversion to the lien of bers of minority groups are bene- such mortgage or other encumbrance. ficiaries of programs receiving Federal (b) Continuing Federal financial assist- financial assistance. ante. Every application by a State or a (c) Access to sources of information. State agency for continuing Federal fi- Each recipient shall permit access by nancial assistance to which this part the Secretary during normal business applies (including the types of Federal hours to such of its books, records, ac- financial assistance listed in appendix counts, and other sources of informa- A to this part) shall as a condition to tion, and its facilities as may be perti- its approval and the extension of any nent to ascertain compliance with this Federal financial assistance pursuant part. Where any information required 191 109 §21.11 49 CFR Subtitle A (10-1-12 Edition) of a recipient is in the exclusive posses- comply with this part, the Secretary sion of any other agency, institution, will so inform the recipient and the or person and this agency, institution, matter will be resolved by informal or person fails or refuses to furnish this means whenever possible. If it has been information, the recipient shall so cer- determined that the matter cannot be tify in its report and shall set forth resolved by informal means, action will what efforts it has made to obtain the be taken as provided for in§21.13. information. (2) If an investigation does not war- (d) Information to beneficiaries and rant action pursuant to paragraph participants. Each recipient shall make (d)(1) of this section the Secretary will available to participants, beneficiaries, so inform the recipient and the com- and other interested persons such in- plainant, if any, in writing. formation regarding the provisions of (e) Intimidatory or retaliatory acts pro- this part and its applicability to the hibited. No recipient or other person program for which the recipient re- shall intimidate, threaten, coerce, or ceives Federal financial assistance, and discriminate against any individual for make such information available to the purpose of interfering with any them in such manner, as the Secretary right or privilege secured by section 601 finds necessary to apprise such persons of the Act or this part, or because he of the protections against discrimina- has made a complaint, testified, as- tion assured them by the Act and this sisted, or participated in any manner part. in an investigation, proceeding, or [35 FR 10080, June 18, 1970, as amended by hearing under this part. The identity of Arndt. 72-2, 38 FR 17997, July 5, 1973; 68 FR complainants shall be kept confiden- 51389,Aug.26,2003] tial except to the extent necessary to carry out the purposes of this part, in- §21.11 Conduct of investigations. cluding the conduct of any investiga- (a) Periodic compliance reviews. The tion, hearing, or judicial proceeding Secretary shall from time to time re- arising thereunder. view the practices of recipients to de- [35 FR 10080, June 18, 1970, as amended by termine whether they are complying Arndt. 72-2,38 FR 17997,July 5,1973] with this part. (b) Complaints. Any person who be- §21.13 Procedure for effecting compli- lieves himself or any specific class of ante. persons to be subjected to discrimina- (a) General. If there appears to be a tion prohibited by this part may by failure or threatened failure to comply himself or by a representative file with with this part, and if the noncompli- the Secretary a written complaint. A ante or threatened noncompliance can- complaint must be filed not later than not be corrected by informal means, 180 days after the date of the alleged compliance with this part may be ef- discrimination, unless the time for fil- fected by the suspension or termi- ing is extended by the Secretary. nation of or refusal to grant or to con- (c) Investigations. The Secretary will tinue Federal financial assistance or by make a prompt investigation whenever any other means authorized by law. a compliance review, report, com- Such other means may include, but are plaint, or any other information indi- not limited to: (1) A reference to the cates a possible failure to comply with Department of Justice with a rec- this part. The investigation will in- ommendation that appropriate pro- clude, where appropriate, a review of ceedings be brought to enforce any the pertinent practices and policies of rights of the United States under any the recipient, the circumstances under law of the United States (including which the possible noncompliance with other titles of the Act), or any assur- this part occurred, and other factors ante or other contractual undertaking, relevant to a determination as to and(2) any applicable proceeding under whether the recipient has failed to State or local law. comply with this part. (b) Noncompliance with§21.7. If an ap- (d) Resolution of matters. (1) If an in- plicant fails or refuses to furnish an as- vestigation pursuant to paragraph (c) surance required under §21.7 or other- of this section indicates a failure to wise fails or refuses to comply with a 192 110 Office of the Secretary of Transportation §21.15 requirement imposed by or pursuant to (2) The recipient or other person has that section, Federal financial assist- been notified of its failure to comply ance may be refused in accordance with and of the action to be taken to effect the procedures of paragraph (c) of this compliance; and section. The Department shall not be (3) The expiration of at least 10 days required to provide assistance in such a from the mailing of such notice to the case during the pendency of the admin- recipient or other person. During this istrative proceedings under such para- period of at least 10 days, additional ef- graph. However, subject to §21.21, the forts shall be made to persuade the re- Department shall continue assistance cipient or other person to comply with during the pendency of such pro- the regulation and to take such correc- ceedings where such assistance is due tive action as may be appropriate. and payable pursuant to an application approved prior to the effective date of §21.15 Hearings. this part. (a) Opportunity for hearing. Whenever (c) Termination of or refusal to grant or an opportunity for a hearing is re- to continue Federal financial assistance. quired by §21.13(c), reasonable notice No order suspending, terminating, or shall be given by registered or certified refusing to grant or continue Federal mail, return receipt requested, to the financial assistance shall become effec- affected applicant or recipient. This tive until: notice shall advise the applicant or re- (1) The Secretary has advised the ap- cipient of the action proposed to be plicant or recipient of his failure to taken, the specific provision under comply and has determined that com- which the proposed action against it is pliance cannot be secured by voluntary to be taken, and the matters of fact or means; law asserted as the basis for this ac- (2) There has been an express finding tion, and either: (1) Fix a date not less on the record, after opportunity for than 20 days after the date of such no- hearing, of a failure by the applicant or tice within which the applicant or re- recipient to comply with a requirement cipient may request of the Secretary imposed by or pursuant to this part; that the matter be scheduled for hear- (3) The action has been approved by ing or(2) advise the applicant or recipi- the Secretary pursuant to §21.17(e); and ent that the matter in question has (4) The expiration of 30 days after the been set down for hearing at a stated Secretary has filed with the committee place and time. The time and place so of the House and the committee of the fixed shall be reasonable and shall be Senate having legislative jurisdiction subject to change for cause. The com- over the program involved, a full writ- plainant, if any, shall be advised of the ten report of the circumstances and the time and place of the hearing. An ap- grounds for such action. plicant or recipient may waive a hear- ing and submit written information Any action to suspend or terminate or and argument for the record. The fail- to refuse to grant or to continue Fed- ure of an applicant or recipient to re- eral financial assistance shall be lim- quest a hearing under this paragraph ited to the particular political entity, or to appear at a hearing for which a or part thereof, or other applicant or date has been set shall be deemed to be recipient as to whom such a finding has a waiver of the right to a hearing under been made and shall be limited in its section 602 of the Act and §21.13(c) and effect to the particular program, or consent to the making of a decision on part thereof, in which such noncompli- the basis of such information as is ance has been so found. available. (d) Other means authorized by law. No (b) Time and place of hearing. Hear- action to effect compliance with title ings shall be held at the offices of the VI of the Act by any other means au- Department in Washington, D.C., at a thorized by law shall be taken by this time fixed by the Secretary unless he Department until: determines that the convenience of the (1) The Secretary has determined applicant or recipient or of the Depart- that compliance cannot be secured by ment requires that another place be se- voluntary means; lected. Hearings shall be held before 193 111 §21.17 49 CFR Subtitle A (10-1-12 Edition) the Secretary, or at his discretion, be- Federal financial assistance is ex- fore a hearing examiner appointed in tended and to which this part applies, accordance with section 3105 of title 5, or noncompliance with this part and United States Code, or detailed under the regulations of one or more other section 3344 of title 5, United States Federal departments or agencies issued Code. under title VI of the Act, the Secretary (c) Right to counsel. In all proceedings may, by agreement with such other de- under this section, the applicant or re- paguments or agencies, where applica- cipient and the Department shall have ble, provide for the conduct of consoli- the right to be represented by counsel. dated or joint hearings, and for the ap- (d) Procedures, evidence, and record. (1) plication to such hearings of rules or The hearing, decision, and any admin- procedures not inconsistent with this istrative review thereof shall be con- part. Final decisions in such cases, in- ducted in conformity with sections 554 sofar as this regulation is concerned, through 557 of title 5, United States shall be made in accordance with Code, and in accordance with such §21.17. rules of procedure as are proper (and not inconsistent with this section) re- [35 FR 10080, June 18, 1970, as amended at 68 lacing to the conduct of the hearing, FR 51389,Aug.26,2003] giving of notices subsequent to those §21.17 Decisions and notices. provided for in paragraph (a) of this section, taking of testimony, exhibits, (a) Procedure on decisions by hearing arguments and briefs, requests for find- examiner. If the hearing is held by a ings, and other related matters. Both hearing examiner, the hearing exam- the Department and the applicant or iner shall either make an initial deci- recipient shall be entitled to introduce sion, if so authorized, or certify the en- all relevant evidence on the issues as tire record including his recommended stated in the notice for hearing or as findings and proposed decision to the determined by the officer conducting Secretary for a final decision, and a the hearing at the outset of or during copy of such initial decision or certifi- the hearing. cation shall be mailed to the applicant (2) Technical rules of evidence do not or recipient. Where the initial decision apply to hearings conducted pursuant is made by the hearing examiner the to this part, but rules or principles de- applicant or recipient may, within 30 signed to assure production of the most days after the mailing of such notice of credible evidence available and to sub- initial decision, file with the Secretary ject testimony to test by cross-exam- his exceptions to the initial decision, ination shall be applied where reason- with his reasons therefor. In the ab- ably necessary by the officer con- sence of exceptions, the Secretary may, ducting the hearing. The hearing offi- on his own motion, within 45 days after cer may exclude irrelevant, immate- the initial decision, serve on the appli- rial, or unduly repetitious evidence. All cant or recipient a notice that he will documents and other evidence offered review the decision. Upon the filing of or taken for the record shall be open to such exceptions or of notice of review, examination by the parties and oppor- the Secretary shall review the initial tunity shall be given to refute facts decision and issue his own decision and arguments advanced on either side thereon including the reasons therefor. of the issues. A transcript shall be In the absence of either exceptions or a made of the oral evidence except to the notice of review the initial decision extent the substance thereof is stipu- shall, subject to paragraph (e) of this lated for the record. All decisions shall section, constitute the final decision of be based upon the hearing record and the Secretary. written findings shall be made. (b) Decisions on record or review by the (e) Consolidated or joint hearings. In Secretary. Whenever a record is cer- cases in which the same or related tified to the Secretary for decision or facts are asserted to constitute non- he reviews the decision of a hearing ex- compliance with this part with respect aminer pursuant to paragraph (a) of to two or more Federal statutes, au- this section, or whenever the Secretary thorities, or other means by which conducts the hearing, the applicant or 194 112 Office of the Secretary of Transportation §21.21 recipient shall be given reasonable op- fected by an order issued under para- portunity to file with him briefs or graph (f) of this section shall be re- other written statements of its conten- stored to full eligibility to receive Fed- tions, and a written copy of the final eral financial assistance if it satisfies decision of the Secretary shall be sent the terms and conditions of that order to the applicant or recipient and to the for such eligibility or if it brings itself complainant, if any. into compliance with this part and pro- (c) Decisions on record where a hearing vides reasonable assurance that it will is waived. Whenever a hearing is waived fully comply with this part. pursuant to §21.15, a decision shall be (2) Any applicant or recipient ad- made by the Secretary on the record versely affected by an order entered and a written copy of such decision pursuant to paragraph (f) of this sec- shall be sent to the applicant or recipi- tion may at any time request the Sec- ent, and to the complainant, if any. retary to restore fully its eligibility to (d) Rulings required. Each decision of receive Federal financial assistance. a hearing examiner or the Secretary Any such request shall be supported by shall set forth his ruling on each find- information showing that the applicant ing, conclusion, or exception presented, or recipient has met the requirements and shall identify the requirement or of paragraph (g)(1) of this section. If requirements imposed by or pursuant the Secretary determines that those to this part with which it is found that requirements have been satisfied, he the applicant or recipient has failed to shall restore such eligibility. comply. (3) If the Secretary denies any such (e) Approval by Secretary. Any final request, the applicant or recipient may decision by an official of the Depart- submit a request for a hearing in writ- ment, other than the Secretary person- ing, specifying who it believes such of- ally, which provides for the suspension ficial to have been in error. It shall or termination of, or the refusal to thereupon be given an expeditious grant or continue Federal financial as- hearing, with a decision on the record sistance, or the imposition of any other in accordance with rules or procedures sanction available under this part or issued by the Secretary. The applicant the Act, shall promptly be transmitted or recipient will be restored to such eli- to the Secretary personally, who may gibility if it proves at such a hearing approve such decision, may vacate it, that it satisfied the requirements of or remit or mitigate any sanction im- paragraph (g)(1) of this section. posed. While proceedings under this paragraph (f) Content of orders. The final deci- are pending, the sanctions imposed by sion may provide for suspension or ter- the order issued under paragraph (f) of mination of, or refusal to grant or con- this section shall remain in effect. tinue Federal financial assistance, in whole or in part, to which this regula- [35 FR 10080, June 18, 1970, as amended at 68 tion applies, and may contain such FR 51389,Aug.26,2003] terms, conditions, and other provisions §21.19 Judicial review. as are consistent with and will effec- tuate the purposes of the Act and this Action taken pursuant to section 602 part, including provisions designed to of the Act is subject to judicial review assure that no Federal financial assist- as provided in section 603 of the Act. ante to which this regulation applies will thereafter be extended to the ap- §21.21 Effect on other regulations, plicant or recipient determined by such forms,and instructions. decision to be in default in its perform- (a) Effect on other regulations. All reg- ance of an assurance given by it pursu- ulations, orders, or like directions ant to this part, or to have otherwise issued before the effective date of this failed to comply with this part, unless part by any officer of the Department and until it corrects its noncompliance which impose requirements designed to and satisfies the Secretary that it will prohibit any discrimination against in- fully comply with this part. dividuals on the grounds of race, color, (g) Post termination proceedings. (1) An or national origin under any program applicant or recipient adversely af- to which this part applies, and which 195 113 §21.23 49 CFR Subtitle A (10-1-12 Edition) authorize the suspension or termi- tion had been taken by the Secretary nation of or refusal to grant or to con- of this Department. tinue Federal financial assistance to [35 FR 10080, June 18, 1970, as amended at 68 any applicant for a recipient of such FR 51389,Aug.26,2003] assistance for failure to comply with such requirements, are hereby super- §21.23 Definitions. seded to the extent that such discrimi- Unless the context requires other- nation is prohibited by this part, ex- wise, as used in this part: cept that nothing in this part may be considered to relieve any person of any its Applicant means a person who sub- obligation assumed or imposed under required e application, request, e plan Sec- any such superseded regulation, order, required to be approved ci the as a retary, or by a primary recipient, as a instruction, or like direction before the condition to eligibility for Federal fi- effective date of this part. Nothing in nancial assistance, and "application" this part, however, supersedes any of means such an application, request, or the following (including future amend- plan. ments thereof): (1) Executive Order 11246(3 CFR, 1965 Supp., p. 167) and reg- (b) Facility includes all or any part of or ulations issued thereunder or (2) any structures, equipment, other real other orders, regulations, or instruc- personal property o interests rests therein, and the provision off facilities includes tions, insofar as such orders, regula- the construction, expansion, renova- tions, or instructions prohibit discrimi- tion, remodeling, alteration or acquisi- nation on the ground of race, color, or tion of facilities. national origin in any program or situ- (c) Federal financial assistance in- ation to which this part is inapplicable, cludes: or prohibit discrimination on any other (1) Grants and loans of Federal funds; ground. (2) The grant or donation of Federal (b) Forms and instructions. The Sec- property and interests in property; retary shall issue and promptly make available to all interested persons (3) The detail Federal personnel; forms and detailed instructions and The sale and lease of, and the per- procedures for effectuating this part as mission use other than a casual or transient basis), Federal property or applied to programs to which this part any interest in such property without applies and for which he is responsible. consideration or at a nominal consider- (c) Supervision and coordination. The ation, or at a consideration which is re- Secretary may from time to time as- duced for the purpose of assisting the sign to officials of the Department, or recipient, or in recognition of the pub- to officials of other departments or lic interest to be served by such sale or agencies of the Government with the lease to the recipient; and consent of such departments or agen- (5) Any Federal agreement, arrange- cies, responsibilities in connection ment, or other contract which has as with the effectuation of the purposes of one of its purposes the provision of as- title VI of the Act and this part (other sistance. than responsibility for final decision as (d) Primary recipient means any re- provided in §21.17), including the cipient that is authorized or required achievement of effective coordination to extend Federal financial assistance and maximum uniformity within the to another recipient. Department and within the Executive (e) Program or activity and program Branch of the Government in the appli- mean all of the operations of any enti- cation of title VI and this part to simi- ty described in paragraphs (e)(1) lar programs and in similar situations. through (4) of this section, any part of Any action taken, determination made which is extended Federal financial as- or requirement imposed by an official sistance: of another department or agency act- (1)(i) A department, agency, special ing pursuant to an assignment of re- purpose district, or other instrumen- sponsibility under this paragraph shall tality of a State or of a local govern- have the same effect as though such ac- ment; or 196 114 Office of the Secretary of Transportation Pt. 21, App. A (ii) The entity of such State or local APPENDIx A TO PART 21 ACTIVITIES TO government that distributes such as- WHICH THIS PART APPLIES sistance and each such department or agency (and each other State or local 1. Use of grants made in connection with Federal-aid highway systems(23 U.S.C. 101 et government entity) to which the as- se(I.). sistance is extended, in the case of as- 2. Use of grants made in connection with sistance to a State or local govern- the Highway Safety Act of 1966(23 U.S.C. 401 merit; et seq.). (2)(i) A college, university, or other 3.Use of grants in connection with the Na- postsecondary institution, or a public tional Traffic and Motor Vehicle Safety Act system of higher education; or of 1966(15 U.S.C.1391-1409,1421-1425). (ii)A local educational agency (as de- 4. Lease of real property and the grant of permits, licenses, easements and rights-of- fined in 20 U.S.C. 7801), system of voca- way covering real property under control of tional education, or other school sys- the Coast Guard(14 U.S.C.93(n)and(o)). tem; 5.Utilization of Coast Guard personnel and (3)(i) An entire corporation, partner- facilities by any State, territory, possession, ship, or other private organization, or or political subdivision thereof (14 U.S.C. an entire sole proprietorship— 141(a)). 6.Use of Coast Guard personnel for duty in (A) If assistance is extended to such connection with maritime instruction and corporation, partnership, private orga- training by the States, territories, and Puer- nization, or sole proprietorship as a to Rico(14 U.S.C.148). whole; or 7. Use of obsolete and other Coast Guard (B) Which is principally engaged in material by sea scout service of Boy Scouts the business of providing education, of America, any incorporated unit of the health care, housing, social services, or Coast Guard auxiliary, and public body or parks and recreation; or private organization not organized for profit (14 U.S.C.641(a)). (ii) The entire plant or other com- 8_ U.S. Coast Guard Auxiliary Program (14 parable, geographically separate facil- U.S.C.821-832). ity to which Federal financial assist- 9.Use of grants for the support of basic sci- ance is extended, in the case of any entific research by nonprofit institutions of other corporation, partnership, private higher education and nonprofit organizations organization, or sole proprietorship; or Whose primary purpose is conduct of sci- entific research(42 U.S.C.1891). (4) Any other entity which is estab- 10. Use of grants made in connection with lished by two or more of the entities the Federal-aid Airport Program (secs. 1-15 described in paragraph (e)(1), (2), or (3) and 17-20 of the Federal Airport Act, 49 of this section. U.S.C. 1101-1114,1116-1120). (f) Recipient may mean any State, 11. Use of U.S.land acquired for public air- territory, possession, the District of ports under: Columbia, or Puerto Rico, or any polit- a. Section 16 of the Federal Airport Act, 49 ical subdivision thereof, or instrumen- U.S.C. 1115;and b. Surplus Property Act (sec. 13(g) of the tality thereof, any public or private Surplus Property Act of 1944, 50 U.S.C. App. agency, institution, or organization, or 1622(g), and sec. 3 of the Act of Oct. 1, 1949, other entity, or any individual, in any 50 U.S.C.App.1622b). State, territory, possession, the Dis- 12. Activities carried out in connection trict of Columbia, or Puerto Rico, to with the Aviation Education Program of the whom Federal financial assistance is Federal Aviation Administration under sec- extended, directly or through another tions 305, 311, and 313(a) of the Federal Avia- recipient, including any successor, as- tion Act of 1958, as amended (49 U.S.C. 1346, signee, or transferee thereof, but such 1352, and 1354(a)). 13.Use of grants and loans made in connec- term does not include any ultimate tion with Urban Mass Transportation Cap- beneficiary. ital Facilities Grant and Loan Program (g) Secretary means the Secretary of Urban Mass Transportation Act of 1964, as Transportation or, except in §21.17 (e), amended(49 U.S.C.1602). any person to whom he has delegated 14. Use of grants made in connection with his authority in the matter concerned. Urban Mass Transportation Research and Demonstration Grant Program Urban Mass [35 FR 10080, June 18, 1970, as amended at 68 Transportation Act of 1964, as amended (49 FR 51389,Aug.26,2003] U.S.C.1605). 197 115 Pt. 21, App. B 49 CFR Subtitle A (10-1-12 Edition) 15. Use of grants made in connection with (iii) An aircraft operator may not be re- Urban Mass Transportation Technical Stud- quired to park his aircraft at a location that ies Grant Program—Urban Mass Transpor- is less protected, or less accessible from the tation Act of 1964, as amended (49 U.S.C. terminal facilities, than locations offered to 1607a). others,because of his race, color, or national 16. Use of grants made in connection with origin. Urban Mass Transportation Managerial (iv)The pilot of an aircraft may not be re- Training Grant Program Urban Mass quired to help more extensively in fueling Transportation Act of 1964, as amended (49 operations, and may not be offered less inci- U.S.C.1607b). dental service (such as windshield wiping), 17. Use of grants made in connection with than other pilots, because of his race, color, Urban Mass Transportation Grants for Re- or national origin. search and Training Programs in Institu- (v) No pilot or crewmember eligible for ac- tions of Higher Learning—Urban Mass cess to a pilot's lounge or to unofficial com- Transportation Act of 1964, as amended (49 munication facilities such as a UNICOM fre- U.S.C.1607c). quency may be restricted in that access be- 18. Use of grants made in connection with cause of his race,color,or national origin. the High Speed Ground Transportation Act, (vi) Access to facilities maintained at the as amended(49 U.S.C.631-642). airport by air carriers or commercial opera- tors for holders of first-class transportation APPENDIX B TO PART 21 ACTIVITIES TO tickets or frequent users of the carrier's or WHICH THIS PART APPLIES WHEN A operator's services may not be restricted on the basis of race,color,or national origin. PRIMARY OBJECTIVE OF THE FED- (vii) Passengers and crewmembers seeking ERAL FINANCIAL ASSISTANCE IS TO ground transportation from the airport may PROVIDE EMPLOYMENT not be assigned to different vehicles, or de- layed or embarrassed in assignment to vehi- 1.Appalachia Regional Development Act of cles, by the airport sponsor or his lessees, 1965(40 U.S.C.App.1 et seq.). concessionaires, or contractors, because of race, color,or national origin. APPENDIX C TO PART 21 APPLICATION (viii) Where there are two or more sites OF PART 21 TO CERTAIN FEDERAL FI- having equal potential to serve the aero- NANCIAL ASSISTANCE OF THE DE- nautical needs of the area, the airport spon- PARTMENT OF TRANSPORTATION sor shall select the site least likely to ad- versely affect existing communities. Such NONDISCRIMINATION ON FEDERALLY ASSISTED site selection shall not be made on the basis PROJECTS of race, color, or national origin. (ix) Employment at obligated airports, in- (a)Examples.The following examples,with- cluding employment by tenants and conces- out being exhaustive, illustrate the applica- sionaires shall be available to all regardless tion of the nondiscrimination provisions of of race, creed, color, sex, or national origin. this part on projects receiving Federal finan- The sponsor shall coordinate his airport plan cial assistance under the programs of certain with his local transit authority and the Department of Transportation operating ad- Urban Mass Transportation Administration ministrations: to assure public transportation, convenient (1) Federal Aviation Administration. (i) The to the disadvantaged areas of nearby com- airport sponsor or any of his lessees, conces- munities to enhance employment opportuni- sionaires, or contractors may not differen- ties for the disadvantaged and minority pop- tiate between members of the public because ulation. of race, color, or national origin in fur- (x) The sponsor shall assure that the mi- nishing, or admitting to, waiting rooms,pas- nority business community in his area is ad- senger holding areas, aircraft tiedown areas, vised of the opportunities offered by airport restaurant facilities, restrooms, or facilities concessions, and that bids are solicited from operated under the compatible land use con- such qualified minority firms, and awards cept. made without regard to race, color, or na- (ii) The airport sponsor and any of his les- tional origin. sees, concessionaires, or contractors must (2) Federal Highway Administration. (i) The offer to all members of the public the same State, acting through its highway depart- degree and type of service without regard to ment, may not discriminate in its selection race, color, or national origin. This rule ap- and retention of contractors, including with- plies to fixed base operators, restaurants, out limitation, those whose services are re- snack bars, gift shops, ticket counters, bag- tained for, or incidental to, construction, gage handlers, car rental agencies, lim- planning, research, highway safety, engi- ousines and taxis franchised by the airport neering, property management, and fee con- sponsor, insurance underwriters, and other tracts and other commitments with person businesses catering to the public at the air- for services and expenses incidental to the port. acquisition of right-of-way. 198 116 Office of the Secretary of Transportation Pt. 22 (ii) The State may not discriminate location of routes may not be determined on against eligible persons in making relocation the basis of race,color,or national origin. payments and in providing relocation advi- (iv)The location of projects requiring land sory assistance where relocation is neces- acquisition and the displacement of persons sitated by highway right-of-way acquisi- from their residences and businesses may not tions. be determined on the basis of race, color, or (iii) Federal-aid contractors may not dis- national origin. criminate in their selection and retention of first-tier subcontractors, and first-tier sub- (b)Tenants, contractons of the airport operator—(I) Each ) contractors may not discriminate in their airport I peraaetors,and concessionaires. Each selection and retention of second-tier sub- airport operator shall require each tenant, contractors, who participate in Federal-aid contractor, and concessionaire who provides highway construction, acquisition of right- any activity, service, or facility at the air- of-way and related projects, including those port under lease, contract with, or franchise who supply materials and lease equipment. from the airport, to covenant in a form spec- (iv) The State may not discriminate ified by the Administrator, Federal Aviation against the traveling public and business Administration, that he will comply with users of the federally assisted highway in the nondiscrimination requirements of this their access to and use of the facilities and part. services provided for public accommodations (2) Notification of beneficiaries. The airport (such as eating, sleeping, rest, recreation, operator shall: (i) Make a copy of this part and vehicle servicing) constructed on, over available at his office for inspection during or under the right-of-way of such highways. normal working hours by any person asking (v) Neither the State, any other persons for it, and (ii) conspicuously display a sign, subject to this part, nor its contractors and or signs, furnished by the FAA, in the main subcontractors may discriminate in their public area or areas of the airport, stating employment practices in connection with that discrimination based on race, color, or highway construction projects or other national origin is prohibited on the airport. projects assisted by the Federal Highway Ad- (3) Reports. Each airport owner subject to ministration. this part shall, within 15 days after he re- (vi) The State shall not locate or design a ceives it,forward to the Area Manager of the highway in such a manner as to require, on FAA Area in which the airport is located a the basis of race, color, or national origin, co the relocation of any persons. py of each written complaint charging dis- (vii) The State shall not locate, design, or crimination because of race, color, or na- construct a highway in such a manner as to tional origin by any person subject to this deny reasonable access to, and use thereof, part, together with a statement describing to any persons on the basis of race, color, or all actions taken to resolve the matter, and national origin. the results thereof. Each airport operator (3) Urban Mass Transportation Administra- shall submit to the area manager of the FAA tion. (i) Any person who is, or seeks to be, a area in which the airport is located a report patron of any public vehicle which is oper- for the preceding year on the date and in a ated as a part of, or in conjunction with, a form prescribed by the Federal Aviation Ad- project shall be given the same access, seat- ministrator. ing, and other treatment with regard to the [35 FR 10080, June 18, 1970, as amended by use of such vehicle as other persons without Arndt.21-1,38 FR 5875,Mar.5,1973;Arndt.21— regard to their race, color, or national ori- 3,40 FR 14318, Mar.31,1975] gin. (ii)No person who is, or seeks to be,an em- ployee of the project sponsor or lessees, con- PART 22—SHORT-TERM LENDING cessionaires, contractors, licensees, or any PROGRAM (STLP) organization furnishing public transpor- tation service as a part of, or in conjunction with, the project shall be treated less favor- Subpart A-General ably than any other employee or applicant 22.1 Purpose. with regard to hiring, dismissal, advance- ment, wages, or any other conditions and 22.3 Definitions. benefits of employment, on the basis of race, color, or national origin. Subpart B—Policies applying to STLP loans (iii) No person or group of persons shall be 22.11 Eligibility criteria. discriminated against with regard to the routing, scheduling, or quality of service of 22.13 Loan terms and conditions. transportation service furnished as a part of 22.15 Delinquency on Federal, State, and the project on the basis of race, color, or na- Municipal debt. tional origin. Frequency of service, age and 22.17 Compliance with child support obliga- quality of vehicles assigned to routes, qual- tions. ity of stations serving different routes, and 22.19 Credit criteria. 199 117 ,. FAA EXHIBIT I Airports 7 HlSTRP- ASSURANCES AIRPORT SPONSORS A. General. 1. These assurances shall be complied with in the performance of grant agreements for airport development, airport planning, and noise compatibility program grants for airport sponsors. 2. These assurances are required to be submitted as part of the project application by sponsors requesting funds under the provisions of Title 49, U.S.C., subtitle VII, as amended. As used herein,the term "public agency sponsor" means a public agency with control of a public-use airport;the term "private sponsor" means a private owner of a public-use airport; and the term "sponsor" includes both public agency sponsors and private sponsors. 3. Upon acceptance of this grant offer by the sponsor,these assurances are incorporated in and become part of this grant agreement. B. Duration and Applicability. 1. Airport development or Noise Compatibility Program Projects Undertaken by a Public Agency Sponsor. The terms, conditions and assurances of this grant agreement shall remain in full force and effect throughout the useful life of the facilities developed or equipment acquired for an airport development or noise compatibility program project, or throughout the useful life of the project items installed within a facility under a noise compatibility program project, but in any event not to exceed twenty(20)years from the date of acceptance of a grant offer of Federal funds for the project. However,there shall be no limit on the duration of the assurances regarding Exclusive Rights and Airport Revenue so long as the airport is used as an airport.There shall be no limit on the duration of the terms, conditions, and assurances with respect to real property acquired with federal funds. Furthermore,the duration of the Civil Rights assurance shall be specified in the assurances. 2. Airport Development or Noise Compatibility Projects Undertaken by a Private Sponsor. The preceding paragraph 1 also applies to a private sponsor except that the useful life of project items installed within a facility or the useful life of the facilities developed or equipment acquired under an airport development or noise compatibility program project shall be no less than ten (10)years from the date of acceptance of Federal aid for the project. 3. Airport Planning Undertaken by a Sponsor. Unless otherwise specified in this grant agreement, only Assurances 1, 2, 3, 5, 6, 13, 18, 25, 30, 32, 33, and 34 in Section C apply to planning projects.The terms, conditions, and assurances of this grant agreement shall remain in full force and effect during the life of the project;there shall be no limit on the duration of the assurances regarding Exclusive Rights and Airport Revenue so long as the airport is used as an airport. Airport Sponsor Assurances 2/2020 Page 1 of 18 118 C. Sponsor Certification. The sponsor hereby assures and certifies, with respect to this grant that: 1. General Federal Requirements. It will comply with all applicable Federal laws, regulations, executive orders, policies, guidelines, and requirements as they relate to the application, acceptance and use of Federal funds for this project including but not limited to the following: a. Title 49, U.S.C., subtitle VII, as amended. b. Davis-Bacon Act -40 U.S.C. 276(a), et seg.' C. Federal Fair Labor Standards Act-29 U.S.C. 201, et seg. d. Hatch Act—5 U.S.C. 1501, et seg.Z e. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 Title 42 U.S.C. 4601, et seg.12 f. National Historic Preservation Act of 1966 -Section 106 - 16 U.S.C. 470(f).' g. Archeological and Historic Preservation Act of 1974 -16 U.S.C. 469 through 469c.' h. Native Americans Grave Repatriation Act-25 U.S.C. Section 3001, et seq. i. Clean Air Act, P.L. 90-148, as amended. j. Coastal Zone Management Act, P.L. 93-205, as amended. k. Flood Disaster Protection Act of 1973 -Section 102(a) -42 U.S.C. 4012a.' 1. Title 49, U.S.C., Section 303, (formerly known as Section 4(f)) m. Rehabilitation Act of 1973 -29 U.S.C. 794. n. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); o. Americans with Disabilities Act of 1990, as amended, (42 U.S.C. § 12101 et seq.), prohibits discrimination on the basis of disability). p. Age Discrimination Act of 1975 -42 U.S.C. 6101, et seg. q. American Indian Religious Freedom Act, P.L. 95-341, as amended. r. Architectural Barriers Act of 1968-42 U.S.C. 4151, et seg.' S. Power plant and Industrial Fuel Use Act of 1978-Section 403- 2 U.S.C. 8373.' t. Contract Work Hours and Safety Standards Act-40 U.S.C. 327, et seg.' U. Copeland Anti-kickback Act- 18 U.S.C. 874.1 V. National Environmental Policy Act of 1969 -42 U.S.C. 4321, et seg.' w. Wild and Scenic Rivers Act, P.L. 90-542, as amended. X. Single Audit Act of 1984-31 U.S.C. 7501, et seg.Z y. Drug-Free Workplace Act of 1988-41 U.S.C. 702 through 706. Z. The Federal Funding Accountability and Transparency Act of 2006, as amended (Pub. L. 109-282, as amended by section 6202 of Pub. L. 110-252). Airport Sponsor Assurances 2/2020 Page 2 of 18 119 EXECUTIVE ORDERS a. Executive Order 11246 - Equal Employment Opportunity' b. Executive Order 11990 - Protection of Wetlands c. Executive Order 11998—Flood Plain Management d. Executive Order 12372 - Intergovernmental Review of Federal Programs e. Executive Order 12699 -Seismic Safety of Federal and Federally Assisted New Building Construction' f. Executive Order 12898- Environmental Justice g. Executive Order 13788- Buy American and Hire American h. Executive Order 13858—Strengthening Buy-American Preferences for Infrastructure Projects FEDERAL REGULATIONS a. 2 CFR Part180—OMB Guidelines to Agencies on Government-wide Debarment and Suspension (Non-procurement). b. 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. [OMB Circular A-87 Cost Principles Applicable to Grants and Contracts with State and Local Governments, and OMB Circular A-133 -Audits of States, Local Governments, and Non-Profit Organizations].a,s,e c. 2 CFR Part 1200—Non-procurement Suspension and Debarment d. 14 CFR Part 13 - Investigative and Enforcement Procedures14 CFR Part 16 - Rules of Practice For Federally Assisted Airport Enforcement Proceedings. e. 14 CFR Part 150 -Airport noise compatibility planning. f. 28 CFR Part 35- Discrimination on the Basis of Disability in State and Local Government Services. g. 28 CFR §50.3 - U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964. h. 29 CFR Part 1 - Procedures for predetermination of wage rates.' i. 29 CFR Part 3 -Contractors and subcontractors on public building or public work financed in whole or part by loans or grants from the United States.' j. 29 CFR Part 5 - Labor standards provisions applicable to contracts covering federally financed and assisted construction (also labor standards provisions applicable to non- construction contracts subject to the Contract Work Hours and Safety Standards Act).' k. 41 CFR Part 60 -Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor(Federal and federally assisted contracting requirements).' I. 49 CFR Part 18- Uniform administrative requirements for grants and cooperative agreements to state and local governments.3 m. 49 CFR Part 20- New restrictions on lobbying. Airport Sponsor Assurances 2/2020 Page 3 of 18 120 n. 49 CFR Part 21—Nondiscrimination in federally-assisted programs of the Department of Transportation -effectuation of Title VI of the Civil Rights Act of 1964. o. 49 CFR Part 23 - Participation by Disadvantage Business Enterprise in Airport Concessions. p. 49 CFR Part 24—Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs.12 q. 49 CFR Part 26—Participation by Disadvantaged Business Enterprises in Department of Transportation Programs. r. 49 CFR Part 27—Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance.' s. 49 CFR Part 28—Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities conducted by the Department of Transportation. t. 49 CFR Part 30 - Denial of public works contracts to suppliers of goods and services of countries that deny procurement market access to U.S. contractors. u. 49 CFR Part 32—Government-wide Requirements for Drug-Free Workplace (Financial Assistance) v. 49 CFR Part 37—Transportation Services for Individuals with Disabilities (ADA). w. 49 CFR Part 41 -Seismic safety of Federal and federally assisted or regulated new building construction. SPECIFIC ASSURANCES Specific assurances required to be included in grant agreements by any of the above laws, regulations or circulars are incorporated by reference in this grant agreement. FOOTNOTES TO ASSURANCE C.1. 1 These laws do not apply to airport planning sponsors. Z These laws do not apply to private sponsors. 3 49 CFR Part 18 and 2 CFR Part 200 contain requirements for State and Local Governments receiving Federal assistance. Any requirement levied upon State and Local Governments by this regulation and circular shall also be applicable to private sponsors receiving Federal assistance under Title 49, United States Code. 4 On December 26, 2013 at 78 FR 78590,the Office of Management and Budget(OMB) issued the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR Part 200. 2 CFR Part 200 replaces and combines the former Uniform Administrative Requirements for Grants (OMB Circular A-102 and Circular A-110 or 2 CFR Part 215 or Circular)as well as the Cost Principles (Circulars A-21 or 2 CFR part 220; Circular A-87 or 2 CFR part 225; and A-122, 2 CFR part 230). Additionally it replaces Circular A-133 guidance on the Single Annual Audit. In accordance with 2 CFR section 200.110,the standards set forth in Part 200 which affect administration of Federal awards issued by Federal agencies become effective once implemented by Federal agencies or when any future amendment to this Part becomes final. Federal agencies, including the Department of Transportation, must implement the policies and procedures applicable to Federal awards by promulgating a regulation to be effective by December 26, 2014 unless different provisions are required by statute or approved by OMB. Airport Sponsor Assurances 2/2020 Page 4 of 18 121 5 Cost principles established in 2 CFR part 200 subpart E must be used as guidelines for determining the eligibility of specific types of expenses. 6 Audit requirements established in 2 CFR part 200 subpart F are the guidelines for audits. 2. Responsibility and Authority of the Sponsor. a. Public Agency Sponsor: It has legal authority to apply for this grant, and to finance and carry out the proposed project;that a resolution, motion or similar action has been duly adopted or passed as an official act of the applicant's governing body authorizing the filing of the application, including all understandings and assurances contained therein, and directing and authorizing the person identified as the official representative of the applicant to act in connection with the application and to provide such additional information as may be required. b. Private Sponsor: It has legal authority to apply for this grant and to finance and carry out the proposed project and comply with all terms, conditions, and assurances of this grant agreement. It shall designate an official representative and shall in writing direct and authorize that person to file this application, including all understandings and assurances contained therein;to act in connection with this application; and to provide such additional information as may be required. 3. Sponsor Fund Availability. It has sufficient funds available for that portion of the project costs which are not to be paid by the United States. It has sufficient funds available to assure operation and maintenance of items funded under this grant agreement which it will own or control. 4. Good Title. a. It, a public agency or the Federal government, holds good title, satisfactory to the Secretary, to the landing area of the airport or site thereof, or will give assurance satisfactory to the Secretary that good title will be acquired. b. For noise compatibility program projects to be carried out on the property of the sponsor, it holds good title satisfactory to the Secretary to that portion of the property upon which Federal funds will be expended or will give assurance to the Secretary that good title will be obtained. 5. Preserving Rights and Powers. a. It will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in this grant agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere with such performance by the sponsor.This shall be done in a manner acceptable to the Secretary. b. Subject to the FAA Act of 2018, Public Law 115-254, Section 163, it will not sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property shown on Exhibit A to this application or,for a noise compatibility program project, that portion of the property upon which Federal funds have been expended,for the duration of the terms, conditions, and assurances in this grant agreement without approval by the Airport Sponsor Assurances 2/2020 Page 5 of 18 122 Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United States Code, to assume the obligations of this grant agreement and to have the power, authority, and financial resources to carry out all such obligations,the sponsor shall insert in the contract or document transferring or disposing of the sponsor's interest, and make binding upon the transferee all of the terms, conditions, and assurances contained in this grant agreement. c. For all noise compatibility program projects which are to be carried out by another unit of local government or are on property owned by a unit of local government other than the sponsor, it will enter into an agreement with that government. Except as otherwise specified by the Secretary,that agreement shall obligate that government to the same terms, conditions, and assurances that would be applicable to it if it applied directly to the FAA for a grant to undertake the noise compatibility program project.That agreement and changes thereto must be satisfactory to the Secretary. It will take steps to enforce this agreement against the local government if there is substantial non-compliance with the terms of the agreement. d. For noise compatibility program projects to be carried out on privately owned property, it will enter into an agreement with the owner of that property which includes provisions specified by the Secretary. It will take steps to enforce this agreement against the property owner whenever there is substantial non-compliance with the terms of the agreement. e. If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure that the airport will continue to function as a public-use airport in accordance with these assurances for the duration of these assurances. f. If an arrangement is made for management and operation of the airport by any agency or person other than the sponsor or an employee of the sponsor,the sponsor will reserve sufficient rights and authority to insure that the airport will be operated and maintained in accordance Title 49, United States Code,the regulations and the terms, conditions and assurances in this grant agreement and shall insure that such arrangement also requires compliance therewith. g. Sponsors of commercial service airports will not permit or enter into any arrangement that results in permission for the owner or tenant of a property used as a residence, or zoned for residential use,to taxi an aircraft between that property and any location on airport. Sponsors of general aviation airports entering into any arrangement that results in permission for the owner of residential real property adjacent to or near the airport must comply with the requirements of Sec. 136 of Public Law 112-95 and the sponsor assurances. 6. Consistency with Local Plans. The project is reasonably consistent with plans (existing at the time of submission of this application) of public agencies that are authorized by the State in which the project is located to plan for the development of the area surrounding the airport. 7. Consideration of Local Interest. It has given fair consideration to the interest of communities in or near where the project may be located. 8. Consultation with Users. In making a decision to undertake any airport development project under Title 49, United States Code, it has undertaken reasonable consultations with affected parties using the airport at which project is proposed. Airport Sponsor Assurances 2/2020 Page 6 of 18 123 9. Public Hearings. In projects involving the location of an airport, an airport runway, or a major runway extension, it has afforded the opportunity for public hearings for the purpose of considering the economic, social, and environmental effects of the airport or runway location and its consistency with goals and objectives of such planning as has been carried out by the community and it shall, when requested by the Secretary, submit a copy of the transcript of such hearings to the Secretary. Further,for such projects, it has on its management board either voting representation from the communities where the project is located or has advised the communities that they have the right to petition the Secretary concerning a proposed project. 10. Metropolitan Planning Organization. In projects involving the location of an airport, an airport runway, or a major runway extension at a medium or large hub airport,the sponsor has made available to and has provided upon request to the metropolitan planning organization in the area in which the airport is located, if any, a copy of the proposed amendment to the airport layout plan to depict the project and a copy of any airport master plan in which the project is described or depicted. 11. Pavement Preventive Maintenance. With respect to a project approved after January 1, 1995,for the replacement or reconstruction of pavement at the airport, it assures or certifies that it has implemented an effective airport pavement maintenance-management program and it assures that it will use such program for the useful life of any pavement constructed, reconstructed or repaired with Federal financial assistance at the airport. It will provide such reports on pavement condition and pavement management programs as the Secretary determines may be useful. 12. Terminal Development Prerequisites. For projects which include terminal development at a public use airport, as defined in Title 49, it has, on the date of submittal of the project grant application, all the safety equipment required for certification of such airport under section 44706 of Title 49, United States Code, and all the security equipment required by rule or regulation, and has provided for access to the passenger enplaning and deplaning area of such airport to passengers enplaning and deplaning from aircraft other than air carrier aircraft. 13. Accounting System,Audit, and Record Keeping Requirements. a. It shall keep all project accounts and records which fully disclose the amount and disposition by the recipient of the proceeds of this grant,the total cost of the project in connection with which this grant is given or used, and the amount or nature of that portion of the cost of the project supplied by other sources, and such other financial records pertinent to the project. The accounts and records shall be kept in accordance with an accounting system that will facilitate an effective audit in accordance with the Single Audit Act of 1984. b. It shall make available to the Secretary and the Comptroller General of the United States, or any of their duly authorized representatives,for the purpose of audit and examination, any books, documents, papers, and records of the recipient that are pertinent to this grant.The Secretary may require that an appropriate audit be conducted by a recipient. In any case in which an independent audit is made of the accounts of a sponsor relating to the disposition of the proceeds of a grant or relating to the project in connection with which this grant was given or used, it shall file a certified copy of such audit with the Comptroller General of the United States not later than six(6) months following the close of the fiscal year for which the audit was made. Airport Sponsor Assurances 2/2020 Page 7 of 18 124 14. Minimum Wage Rates. It shall include, in all contracts in excess of$2,000 for work on any projects funded under this grant agreement which involve labor, provisions establishing minimum rates of wages,to be predetermined by the Secretary of Labor, in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a-276a-5), which contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for the work. 15. Veteran's Preference. It shall include in all contracts for work on any project funded under this grant agreement which involve labor, such provisions as are necessary to insure that, in the employment of labor (except in executive, administrative, and supervisory positions), preference shall be given to Vietnam era veterans, Persian Gulf veterans,Afghanistan-Iraq war veterans, disabled veterans, and small business concerns owned and controlled by disabled veterans as defined in Section 47112 of Title 49, United States Code. However,this preference shall apply only where the individuals are available and qualified to perform the work to which the employment relates. 16. Conformity to Plans and Specifications. It will execute the project subject to plans, specifications, and schedules approved by the Secretary. Such plans, specifications, and schedules shall be submitted to the Secretary prior to commencement of site preparation, construction, or other performance under this grant agreement, and, upon approval of the Secretary, shall be incorporated into this grant agreement. Any modification to the approved plans, specifications, and schedules shall also be subject to approval of the Secretary, and incorporated into this grant agreement. 17. Construction Inspection and Approval. It will provide and maintain competent technical supervision at the construction site throughout the project to assure that the work conforms to the plans, specifications, and schedules approved by the Secretary for the project. It shall subject the construction work on any project contained in an approved project application to inspection and approval by the Secretary and such work shall be in accordance with regulations and procedures prescribed by the Secretary. Such regulations and procedures shall require such cost and progress reporting by the sponsor or sponsors of such project as the Secretary shall deem necessary. 18. Planning Projects. In carrying out planning projects: a. It will execute the project in accordance with the approved program narrative contained in the project application or with the modifications similarly approved. b. It will furnish the Secretary with such periodic reports as required pertaining to the planning project and planning work activities. c. It will include in all published material prepared in connection with the planning project a notice that the material was prepared under a grant provided by the United States. d. It will make such material available for examination by the public, and agrees that no material prepared with funds under this project shall be subject to copyright in the United States or any other country. e. It will give the Secretary unrestricted authority to publish, disclose, distribute, and otherwise use any of the material prepared in connection with this grant. Airport Sponsor Assurances 2/2020 Page 8 of 18 125 f. It will grant the Secretary the right to disapprove the sponsor's employment of specific consultants and their subcontractors to do all or any part of this project as well as the right to disapprove the proposed scope and cost of professional services. g. It will grant the Secretary the right to disapprove the use of the sponsor's employees to do all or any part of the project. h. It understands and agrees that the Secretary's approval of this project grant or the Secretary's approval of any planning material developed as part of this grant does not constitute or imply any assurance or commitment on the part of the Secretary to approve any pending or future application for a Federal airport grant. 19. Operation and Maintenance. a. The airport and all facilities which are necessary to serve the aeronautical users of the airport, other than facilities owned or controlled by the United States, shall be operated at all times in a safe and serviceable condition and in accordance with the minimum standards as may be required or prescribed by applicable Federal, state and local agencies for maintenance and operation. It will not cause or permit any activity or action thereon which would interfere with its use for airport purposes. It will suitably operate and maintain the airport and all facilities thereon or connected therewith, with due regard to climatic and flood conditions. Any proposal to temporarily close the airport for non-aeronautical purposes must first be approved by the Secretary. In furtherance of this assurance,the sponsor will have in effect arrangements for- 1) Operating the airport's aeronautical facilities whenever required; 2) Promptly marking and lighting hazards resulting from airport conditions, including temporary conditions; and 3) Promptly notifying airmen of any condition affecting aeronautical use of the airport. Nothing contained herein shall be construed to require that the airport be operated for aeronautical use during temporary periods when snow,flood or other climatic conditions interfere with such operation and maintenance. Further, nothing herein shall be construed as requiring the maintenance, repair, restoration, or replacement of any structure or facility which is substantially damaged or destroyed due to an act of God or other condition or circumstance beyond the control of the sponsor. b. It will suitably operate and maintain noise compatibility program items that it owns or controls upon which Federal funds have been expended. 20. Hazard Removal and Mitigation. It will take appropriate action to assure that such terminal airspace as is required to protect instrument and visual operations to the airport(including established minimum flight altitudes) will be adequately cleared and protected by removing, lowering, relocating, marking, or lighting or otherwise mitigating existing airport hazards and by preventing the establishment or creation of future airport hazards. 21. Compatible Land Use. It will take appropriate action,to the extent reasonable, including the adoption of zoning laws, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft. In addition, if the project is for noise compatibility program implementation, it will not cause or permit any change in land use, within its jurisdiction,that will reduce its compatibility, with Airport Sponsor Assurances 2/2020 Page 9 of 18 126 respect to the airport, of the noise compatibility program measures upon which Federal funds have been expended. 22. Economic Nondiscrimination. a. It will make the airport available as an airport for public use on reasonable terms and without unjust discrimination to all types, kinds and classes of aeronautical activities, including commercial aeronautical activities offering services to the public at the airport. b. In any agreement, contract, lease, or other arrangement under which a right or privilege at the airport is granted to any person,firm, or corporation to conduct or to engage in any aeronautical activity for furnishing services to the public at the airport,the sponsor will insert and enforce provisions requiring the contractorto- 1) furnish said services on a reasonable, and not unjustly discriminatory, basis to all users thereof, and 2) charge reasonable, and not unjustly discriminatory, prices for each unit or service, provided that the contractor may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. c. Each fixed-based operator at the airport shall be subject to the same rates,fees, rentals, and other charges as are uniformly applicable to all other fixed-based operators making the same or similar uses of such airport and utilizing the same or similar facilities. d. Each air carrier using such airport shall have the right to service itself or to use any fixed- based operator that is authorized or permitted by the airport to serve any air carrier at such airport. e. Each air carrier using such airport (whether as a tenant, non-tenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates,fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and utilize similar facilities, subject to reasonable classifications such as tenants or non-tenants and signatory carriers and non- signatory carriers. Classification or status as tenant or signatory shall not be unreasonably withheld by any airport provided an air carrier assumes obligations substantially similar to those already imposed on air carriers in such classification or status. f. It will not exercise or grant any right or privilege which operates to prevent any person,firm, or corporation operating aircraft on the airport from performing any services on its own aircraft with its own employees [including, but not limited to maintenance, repair, and fueling]that it may choose to perform. g. In the event the sponsor itself exercises any of the rights and privileges referred to in this assurance,the services involved will be provided on the same conditions as would apply to the furnishing of such services by commercial aeronautical service providers authorized by the sponsor under these provisions. h. The sponsor may establish such reasonable, and not unjustly discriminatory, conditions to be met by all users of the airport as may be necessary for the safe and efficient operation of the airport. Airport Sponsor Assurances 2/2020 Page 10 of 18 127 i. The sponsor may prohibit or limit any given type, kind or class of aeronautical use of the airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of the public. 23. Exclusive Rights. It will permit no exclusive right for the use of the airport by any person providing, or intending to provide, aeronautical services to the public. For purposes of this paragraph,the providing of the services at an airport by a single fixed-based operator shall not be construed as an exclusive right if both of the following apply: a. It would be unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide such services, and b. If allowing more than one fixed-based operator to provide such services would require the reduction of space leased pursuant to an existing agreement between such single fixed- based operator and such airport. It further agrees that it will not, either directly or indirectly, grant or permit any person,firm, or corporation,the exclusive right at the airport to conduct any aeronautical activities, including, but not limited to charter flights, pilot training, aircraft rental and sightseeing, aerial photography, crop dusting, aerial advertising and surveying, air carrier operations, aircraft sales and services, sale of aviation petroleum products whether or not conducted in conjunction with other aeronautical activity, repair and maintenance of aircraft, sale of aircraft parts, and any other activities which because of their direct relationship to the operation of aircraft can be regarded as an aeronautical activity, and that it will terminate any exclusive right to conduct an aeronautical activity now existing at such an airport before the grant of any assistance under Title 49, United States Code. 24. Fee and Rental Structure. It will maintain a fee and rental structure for the facilities and services at the airport which will make the airport as self-sustaining as possible under the circumstances existing at the particular airport,taking into account such factors as the volume of traffic and economy of collection. No part of the Federal share of an airport development, airport planning or noise compatibility project for which a grant is made under Title 49, United States Code,the Airport and Airway Improvement Act of 1982,the Federal Airport Act or the Airport and Airway Development Act of 1970 shall be included in the rate basis in establishing fees, rates, and charges for users of that airport. 25. Airport Revenues. a. All revenues generated by the airport and any local taxes on aviation fuel established after December 30, 1987, will be expended by it for the capital or operating costs of the airport; the local airport system; or other local facilities which are owned or operated by the owner or operator of the airport and which are directly and substantially related to the actual air transportation of passengers or property; or for noise mitigation purposes on or off the airport.The following exceptions apply to this paragraph: 1) If covenants or assurances in debt obligations issued before September 3, 1982, by the owner or operator of the airport, or provisions enacted before September 3, 1982, in governing statutes controlling the owner or operator's financing, provide for the use of the revenues from any of the airport owner or operator's facilities, including the airport, to support not only the airport but also the airport owner or operator's general debt obligations or other facilities,then this limitation on the use of all revenues generated Airport Sponsor Assurances 2/2020 Page 11 of 18 128 by the airport(and, in the case of a public airport, local taxes on aviation fuel) shall not apply. 2) If the Secretary approves the sale of a privately owned airport to a public sponsor and provides funding for any portion of the public sponsor's acquisition of land,this limitation on the use of all revenues generated by the sale shall not apply to certain proceeds from the sale.This is conditioned on repayment to the Secretary by the private owner of an amount equal to the remaining unamortized portion (amortized over a 20- year period) of any airport improvement grant made to the private owner for any purpose other than land acquisition on or after October 1, 1996, plus an amount equal to the federal share of the current fair market value of any land acquired with an airport improvement grant made to that airport on or after October 1, 1996. 3) Certain revenue derived from or generated by mineral extraction, production, lease, or other means at a general aviation airport (as defined at Section 47102 of title 49 United States Code), if the FAA determines the airport sponsor meets the requirements set forth in Sec. 813 of Public Law 112-95. b. As part of the annual audit required under the Single Audit Act of 1984,the sponsor will direct that the audit will review, and the resulting audit report will provide an opinion concerning,the use of airport revenue and taxes in paragraph (a), and indicating whether funds paid or transferred to the owner or operator are paid or transferred in a manner consistent with Title 49, United States Code and any other applicable provision of law, including any regulation promulgated by the Secretary or Administrator. c. Any civil penalties or other sanctions will be imposed for violation of this assurance in accordance with the provisions of Section 47107 of Title 49, United States Code. 26. Reports and Inspections. It will: a. submit to the Secretary such annual or special financial and operations reports as the Secretary may reasonably request and make such reports available to the public; make available to the public at reasonable times and places a report of the airport budget in a format prescribed by the Secretary; b. for airport development projects, make the airport and all airport records and documents affecting the airport, including deeds, leases, operation and use agreements, regulations and other instruments, available for inspection by any duly authorized agent of the Secretary upon reasonable request; c. for noise compatibility program projects, make records and documents relating to the project and continued compliance with the terms, conditions, and assurances of this grant agreement including deeds, leases, agreements, regulations, and other instruments, available for inspection by any duly authorized agent of the Secretary upon reasonable request; and d. in a format and time prescribed by the Secretary, provide to the Secretary and make available to the public following each of its fiscal years, an annual report listing in detail: 1) all amounts paid by the airport to any other unit of government and the purposes for which each such payment was made; and 2) all services and property provided by the airport to other units of government and the amount of compensation received for provision of each such service and property. Airport Sponsor Assurances 2/2020 Page 12 of 18 129 27. Use by Government Aircraft. It will make available all of the facilities of the airport developed with Federal financial assistance and all those usable for landing and takeoff of aircraft to the United States for use by Government aircraft in common with other aircraft at all times without charge, except, if the use by Government aircraft is substantial, charge may be made for a reasonable share, proportional to such use,for the cost of operating and maintaining the facilities used. Unless otherwise determined by the Secretary, or otherwise agreed to by the sponsor and the using agency, substantial use of an airport by Government aircraft will be considered to exist when operations of such aircraft are in excess of those which, in the opinion of the Secretary,would unduly interfere with use of the landing areas by other authorized aircraft, or during any calendar month that— a. Five (5) or more Government aircraft are regularly based at the airport or on land adjacent thereto; or b. The total number of movements (counting each landing as a movement) of Government aircraft is 300 or more, or the gross accumulative weight of Government aircraft using the airport (the total movement of Government aircraft multiplied by gross weights of such aircraft) is in excess of five million pounds. 28. Land for Federal Facilities. It will furnish without cost to the Federal Government for use in connection with any air traffic control or air navigation activities, or weather-reporting and communication activities related to air traffic control, any areas of land or water, or estate therein, or rights in buildings of the sponsor as the Secretary considers necessary or desirable for construction, operation, and maintenance at Federal expense of space or facilities for such purposes. Such areas or any portion thereof will be made available as provided herein within four months after receipt of a written request from the Secretary. 29. Airport Layout Plan. a. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, it will keep up to date at all times an airport layout plan of the airport showing: 1) boundaries of the airport and all proposed additions thereto, together with the boundaries of all offsite areas owned or controlled by the sponsor for airport purposes and proposed additions thereto; 2) the location and nature of all existing and proposed airport facilities and structures (such as runways,taxiways, aprons,terminal buildings, hangars and roads), including all proposed extensions and reductions of existing airport facilities; 3) the location of all existing and proposed non-aviation areas and of all existing improvements thereon; and 4) all proposed and existing access points used to taxi aircraft across the airport's property boundary. Such airport layout plans and each amendment, revision, or modification thereof, shall be subject to the approval of the Secretary which approval shall be evidenced by the signature of a duly authorized representative of the Secretary on the face of the airport layout plan. The sponsor will not make or permit any changes or alterations in the airport or any of its facilities which are not in conformity Airport Sponsor Assurances 2/2020 Page 13 of 18 130 with the airport layout plan as approved by the Secretary and which might, in the opinion of the Secretary, adversely affect the safety, utility or efficiency of the airport. b. Subject to the FAA Reauthorization Act of 2018, Public Law 115-254, Section 163, if a change or alteration in the airport or the facilities is made which the Secretary determines adversely affects the safety, utility, or efficiency of any federally owned, leased, or funded property on or off the airport and which is not in conformity with the airport layout plan as approved by the Secretary,the owner or operator will, if requested, by the Secretary(1) eliminate such adverse effect in a manner approved by the Secretary; or(2) bear all costs of relocating such property(or replacement thereof)to a site acceptable to the Secretary and all costs of restoring such property(or replacement thereof)to the level of safety, utility, efficiency, and cost of operation existing before the unapproved change in the airport or its facilities except in the case of a relocation or replacement of an existing airport facility due to a change in the Secretary's design standards beyond the control of the airport sponsor. 30. Civil Rights. It will promptly take any measures necessary to ensure that no person in the United States shall, on the grounds of race, creed, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in any activity conducted with, or benefiting from,funds received from this grant. a. Using the definitions of activity,facility and program as found and defined in §§ 21.23 (b) and 21.23 (e) of 49 CFR§ 21,the sponsor will facilitate all programs, operate all facilities, or conduct all programs in compliance with all non-discrimination requirements imposed by, or pursuant to these assurances. b. Applicability 1) Programs and Activities. If the sponsor has received a grant (or other federal assistance) for any of the sponsor's program or activities,these requirements extend to all of the sponsor's programs and activities. 2) Facilities. Where it receives a grant or other federal financial assistance to construct, expand, renovate, remodel, alter or acquire a facility, or part of a facility,the assurance extends to the entire facility and facilities operated in connection therewith. 3) Real Property.Where the sponsor receives a grant or other Federal financial assistance in the form of, or for the acquisition of real property or an interest in real property,the assurance will extend to rights to space on, over, or under such property. c. Duration. The sponsor agrees that it is obligated to this assurance for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property, or interest therein, or structures or improvements thereon, in which case the assurance obligates the sponsor, or any transferee for the longer of the following periods: 1) So long as the airport is used as an airport, or for another purpose involving the provision of similar services or benefits; or 2) So long as the sponsor retains ownership or possession of the property. Airport Sponsor Assurances 2/2020 Page 14 of 18 131 d. Required Solicitation Language. It will include the following notification in all solicitations for bids, Requests For Proposals for work, or material under this grant agreement and in all proposals for agreements, including airport concessions, regardless of funding source: "The(Name of Sponsor), in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252,42 U.S.C. §§ 2000d to 2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises and airport concession disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award." e. Required Contract Provisions. 1) It will insert the non-discrimination contract clauses requiring compliance with the acts and regulations relative to non-discrimination in Federally-assisted programs of the DOT, and incorporating the acts and regulations into the contracts by reference in every contract or agreement subject to the non-discrimination in Federally-assisted programs of the DOT acts and regulations. 2) It will include a list of the pertinent non-discrimination authorities in every contract that is subject to the non-discrimination acts and regulations. 3) It will insert non-discrimination contract clauses as a covenant running with the land, in any deed from the United States effecting or recording a transfer of real property, structures, use, or improvements thereon or interest therein to a sponsor. 4) It will insert non-discrimination contract clauses prohibiting discrimination on the basis of race, color, national origin, creed, sex, age, or handicap as a covenant running with the land, in any future deeds, leases, license, permits, or similar instruments entered into by the sponsor with other parties: a. For the subsequent transfer of real property acquired or improved under the applicable activity, project, or program; and b. For the construction or use of, or access to, space on, over, or under real property acquired or improved under the applicable activity, project, or program. f. It will provide for such methods of administration for the program as are found by the Secretary to give reasonable guarantee that it, other recipients, sub-recipients, sub- grantees, contractors, subcontractors, consultants,transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the acts,the regulations, and this assurance. g. It agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the acts,the regulations, and this assurance. 31. Disposal of Land. a. For land purchased under a grant for airport noise compatibility purposes, including land serving as a noise buffer, it will dispose of the land, when the land is no longer needed for such purposes, at fair market value, at the earliest practicable time.That portion of the proceeds of such disposition which is proportionate to the United States' share of acquisition of such land will be, at the discretion of the Secretary, (1) reinvested in another project at the airport, or(2)transferred to another eligible airport as prescribed by the Secretary.The Secretary shall give preference to the following, in descending order, (1) Airport Sponsor Assurances 2/2020 Page 15 of 18 132 reinvestment in an approved noise compatibility project, (2) reinvestment in an approved project that is eligible for grant funding under Section 47117(e) of title 49 United States Code, (3) reinvestment in an approved airport development project that is eligible for grant funding under Sections 47114, 47115, or 47117 of title 49 United States Code, (4) transferred to an eligible sponsor of another public airport to be reinvested in an approved noise compatibility project at that airport, and (5) paid to the Secretary for deposit in the Airport and Airway Trust Fund. If land acquired under a grant for noise compatibility purposes is leased at fair market value and consistent with noise buffering purposes,the lease will not be considered a disposal of the land. Revenues derived from such a lease may be used for an approved airport development project that would otherwise be eligible for grant funding or any permitted use of airport revenue. b. For land purchased under a grant for airport development purposes (other than noise compatibility), it will,when the land is no longer needed for airport purposes, dispose of such land at fair market value or make available to the Secretary an amount equal to the United States' proportionate share of the fair market value of the land.That portion of the proceeds of such disposition which is proportionate to the United States' share of the cost of acquisition of such land will, (1) upon application to the Secretary, be reinvested or transferred to another eligible airport as prescribed by the Secretary.The Secretary shall give preference to the following, in descending order: (1) reinvestment in an approved noise compatibility project, (2) reinvestment in an approved project that is eligible for grant funding under Section 47117(e) of title 49 United States Code, (3) reinvestment in an approved airport development project that is eligible for grant funding under Sections 47114, 47115, or 47117 of title 49 United States Code, (4)transferred to an eligible sponsor of another public airport to be reinvested in an approved noise compatibility project at that airport, and (5) paid to the Secretary for deposit in the Airport and Airway Trust Fund. c. Land shall be considered to be needed for airport purposes under this assurance if(1) it may be needed for aeronautical purposes (including runway protection zones) or serve as noise buffer land, and (2)the revenue from interim uses of such land contributes to the financial self-sufficiency of the airport. Further, land purchased with a grant received by an airport operator or owner before December 31, 1987, will be considered to be needed for airport purposes if the Secretary or Federal agency making such grant before December 31, 1987, was notified by the operator or owner of the uses of such land, did not object to such use, and the land continues to be used for that purpose, such use having commenced no later than December 15, 1989. d. Disposition of such land under(a) (b) or(c)will be subject to the retention or reservation of any interest or right therein necessary to ensure that such land will only be used for purposes which are compatible with noise levels associated with operation of the airport. 32. Engineering and Design Services. Engineering and Design Services. If any phase of such project has received Federal funds under Chapter 471 subchapter 1 of Title 49 U.S.C., it will award each contract, or sub-contract for program management, construction management, planning studies,feasibility studies, architectural services, preliminary engineering, design, engineering, surveying, mapping or related services in the same manner as a contract for architectural and engineering services is negotiated under Chapter 11 of Title 40 U. S. C., or an equivalent qualifications-based requirement prescribed for or by the sponsor of the airport. Airport Sponsor Assurances 2/2020 Page 16 of 18 133 33. Foreign Market Restrictions. It will not allow funds provided under this grant to be used to fund any project which uses any product or service of a foreign country during the period in which such foreign country is listed by the United States Trade Representative as denying fair and equitable market opportunities for products and suppliers of the United States in procurement and construction. 34. Policies,Standards, and Specifications. It will carry out the project in accordance with policies, standards, and specifications approved by the Secretary including, but not limited to,the advisory circulars listed in the Current FAA Advisory Circulars for AIP projects, dated , and included in this grant, and in accordance with applicable state policies, standards, and specifications approved by the Secretary. 35. Relocation and Real Property Acquisition. a. It will be guided in acquiring real property,to the greatest extent practicable under State law, by the land acquisition policies in Subpart B of 49 CFR Part 24 and will pay or reimburse property owners for necessary expenses as specified in Subpart B. b. It will provide a relocation assistance program offering the services described in Subpart C and fair and reasonable relocation payments and assistance to displaced persons as required in Subpart D and E of 49 CFR Part 24. c. It will make available within a reasonable period of time prior to displacement, comparable replacement dwellings to displaced persons in accordance with Subpart E of 49 CFR Part 24. 36. Access By Intercity Buses. The airport owner or operator will permit,to the maximum extent practicable, intercity buses or other modes of transportation to have access to the airport; however, it has no obligation to fund special facilities for intercity buses or for other modes of transportation. 37. Disadvantaged Business Enterprises. The sponsor shall not discriminate on the basis of race, color, national origin or sex in the award and performance of any DOT-assisted contract covered by 49 CFR Part 26, or in the award and performance of any concession activity contract covered by 49 CFR Part 23. In addition,the sponsor shall not discriminate on the basis of race, color, national origin or sex in the administration of its Disadvantaged Business Enterprise (DBE) and Airport Concessions Disadvantaged Business Enterprise (ACDBE) programs or the requirements of 49 CFR Parts 23 and 26.The sponsor shall take all necessary and reasonable steps under 49 CFR Parts 23 and 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts, and/or concession contracts.The sponsor's DBE and ACDBE programs, as required by 49 CFR Parts 26 and 23, and as approved by DOT, are incorporated by reference in this agreement. Implementation of these programs is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the sponsor of its failure to carry out its approved program,the Department may impose sanctions as provided for under Parts 26 and 23 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1936 (31 U.S.C. 3801). 38. Hangar Construction. If the airport owner or operator and a person who owns an aircraft agree that a hangar is to be constructed at the airport for the aircraft at the aircraft owner's expense,the airport owner or Airport Sponsor Assurances 2/2020 Page 17 of 18 134 operator will grant to the aircraft owner for the hangar a long term lease that is subject to such terms and conditions on the hangar as the airport owner or operator may impose. 39. Competitive Access. a. If the airport owner or operator of a medium or large hub airport (as defined in section 47102 of title 49, U.S.C.) has been unable to accommodate one or more requests by an air carrier for access to gates or other facilities at that airport in order to allow the air carrier to provide service to the airport or to expand service at the airport,the airport owner or operator shall transmit a report to the Secretary that- 1) Describes the requests; 2) Provides an explanation as to why the requests could not be accommodated; and 3) Provides a time frame within which, if any,the airport will be able to accommodate the requests. b. Such report shall be due on either February 1 or August 1 of each year if the airport has been unable to accommodate the request(s) in the six month period prior to the applicable due date. Airport Sponsor Assurances 2/2020 Page 18 of 18 135 EXHIBIT J AFFILIATE IDENTIFICATION AND REQUIREMENTS "AIRLINE": "AFFILIATE": d/b/a AFFILIATE ADRESS: AFFILIATE POINT OF CONTACT: Telephone: Fax: Email: Date Start of Service: Date of Termination: AIRLINE and AFFILIATE acknowledge and agree that AFFILIATE will comply with all terms, conditions, covenants, and obligations as set forth in the SIGNATORY AIRLINE AGREEMENT for Key West International Airport, dated AIRLINE By: AFFILIATE By: AIRPORT DIRECTOR By: 136 Exhibit K ------- 20_ (<FirstName>> (<LastName>> <<JobTitle>> oCompany>> <(Address>> <(City>><<State>><<PostalCode>> Re: Key West International Airport Assignment of Passenger Terminal Exclusive Use, Preferential Use and Joint Use Premises Letter of Authorization Dear oOpening>>: This Letter of Authorization establishes and formalizes the basis upon which, ---- - ("Airline") is authorized to occupy <<Squ are Feet>> square feet of Exclusive Use Premises, oSquareFeet>) square feet of Preferential Use Premises, and use of <(SquareFeet>> square feet of Joint Use Premises ("Assigned Area") in common with other Commercial Air Transportation Companies in the Key West International Airport (the "Airport") passenger terminal building as more particularly shown on Exhibit "B" — Terminal Layout Plan and Exhibit "C" — Terminal Square Footage included in the attached Nonsignatory Airline Operating Agreement for the Key West International Airport (the "Operating Agreement"). The Assigned Area shall be used solely for Airline's Commercial Air Transportation Services conducted on the Airport. No other operations are authorized or contemplated. Should Airline desire to serve additional airlines, it must provide written notice to the Monroe County (the "County") Department of Airports (the "Department")by submitting the form shown on Exhibit"J"—Affiliates Identification and Requirements, which may be found in the attached Operating Agreement, prior to the commencement of that operation. Airline's failure to comply with this requirement may result in termination of operating privileges at the Airport. Exhibit"E"—Rate and Fee Schedule in the attached Operating Agreement provides the calculation of the Airport's rates and fees for the period October 1,20 to September 30,2 ®.Airline will be responsible for the payment of all rates and fees in accordance with Article 7 of the Operating Agreement. Airline's occupancy and rental assessment for the Assigned Area as shown in Exhibit"B"and Exhibit"C" is on a month-to-month basis. Airline shall make payment to the Key West International Airport for use and occupancy of the Assigned Area, in accordance with Article 7 of the Operating Agreement. Airline's occupancy and use of the Assigned Area, along with all Public Areas of the Terminal Building, shall be in accordance with the Airport Rules and Regulations as well as all relevant and applicable Federal, State, and local laws and regulations as currently promulgated or as may from time to time be amended. Prior to commencing operations,Airline shall provide the Key West International Airport a new certificate of insurance in accordance with Article 13 of the Operating Agreement. The Key West International Airport has implemented an Airport Security Plan (Airport Security Plan) in a forrn acceptable to the Transportation Security Administration pursuant to 49 CFR Parts 1540& 1542 and 137 (<Company>> Letter of Authorization 20_ Page 2 Federal Aviation Administration pursuant to 14 CFR Part 139.The Airport reserves the right to modify said Airport Security Plan from time to time as it deems necessary to accomplish its purposes. Airline shall at all times comply with the Airport Security Plan and defend, indemnify,and hold harmless the County from any violations of said Airport Security Plan caused, or alleged to be caused by acts, errors or omissions of Airline, its employees, agents, invitees,or contractors. Airline's operations are authorized to commence on pending receipt of the required certificate of insurance. Airline's entry upon or use of the Airport is evidence of acknowledgement and receipt of the Airport Rules and Regulations. Yours truly, Richard Strickland, C.M. Sr. Director of Airports Enclosures 138 ASSIGNED EXHIBIT A 139 EXHIBIT B SA FEES SCHEDULE 140 IKEV WE5T INTERNATIONAL AIRPORT Exhibit L-Aircraft Parking Layout FlR TlTll/" 0 1 III IIITL lll 0 — u Ise 1 L9Q�S 11 � r CUSTOM. oVEFFLOW CUSTOMS PARKING I PfV ofV io�Poic]A A fi[fVFl.iW LL Noi o M1 ANEVVEfV OVT OF SPOT VNi LAfi[MFiN Noe N INTERIM PROPOSED AIRCRAFT PARKING LAYOUT API ©1 WITH CUSTOMS OVERFLOW PARKING vJacob 141