2012-04-01 FBO Franchise AgreementBLAIR AIRPORT AUTHORITY
FBO FRANCHISE AGREEMENT
THIS AGREEMENT, made and entered into this 1" day of April, 2012, by and between
the Airport Authority of the City of Blair, a municipal corporation organized and existing
under the laws of the State of Nebraska, (`GLAIR AIRPORT AUTHORITY"), and
SKYWERX AVIATION, INC a corporation organized and existing under the laws of the
State of Nebraska;
WHEREAS, the BLAIR AIRPORT AUTHORITY owns and operates an airport known
as the Blair Municipal Airport, and BLAIR AIRPORT AUTHORITY is desirous of
granting a Non Exclusive FBO franchise to SKYWERX Aviation, INC for the right to
engage in the business of providing Blair Municipal Airport with Aviation services only
and as outlined in Section 10.12 of the Blair Municipal Airport Rules and Regulations as
adopted by the Blair Airport Authority on February 20, 2007 and attached as reference to
this agreement as Exhibit A.
NOW, THEREFORE, for and in consideration of the fees and covenants of this
agreement,,BLAIR AIRPORT AUTHORITY grants to SKYWERX AVIATION, INC
the following rights as a FBO at the Blair Municipal Airport upon the following terms
and conditions;
1. Term. The term of this right shall be for a period of twenty (20) years, commencing on
the 1St day of April, 2012. This agreement shall run concurrent with the Land Lease
Agreement for the construction of a Hangar between 125 and 140 foot by 90 foot Hangar
dated April 1, 2012. An extension beyond 120 foot shall be subject to written approval
by BLAIR AIRPORT AUTHORITY. If SKYWERX AVIATION, INC. and BLAIR
AIRPORT AUTHORITY mutually agree to renewal of the aforementioned Land Lease
Agreement, then SKYWERX AVIATION, INC. and BLAIR AIRPORT AUTHORITY
may mutually agree to renew this FBO Franchise Agreement for up to two (2) addition
five (5) years terms by submitting a written notice of intent to exercise renewal at least
ninety (90) days prior to the end of the then current franchise agreement term.
Consideration for such renewal shall be mutually agreed between the parties pursuant to
paragraph 2.c.- herein.
2. User Fees;
a. SKYWERX AVIATION, INC agrees to pay a flowage fee of twelve cents per
gallon ($.12/gallon) or the fee as may be adjusted periodically under 2.c. of this
agreement for all fuel sold for aviation use, including but not limited to Jet A and
10OLL fuel delivered to SKYWERX AVIATION, INC at the airport for sale or
use by SKYWERX AVIATION, INC by any supplier for the term of this
agreement.
b. SKYWERX AVIATION, INC agrees to pay monthly in accordance with the
terms as identified herein. Payments shall be due and payable on or before the
tenth (1 OtV) day of each calendar month for all fuel delivered during the previous
calendar month with or without the demand of the BLAIR AIRPORT
AUTHORITY.
c, It is expressly understood between the BLAIR AIRPORT AUTHORITY and
the SKYWERX AVIATION, INC that the rate of the fuel flowage fee, shall be
subject to examination and adjustment at the end of each three (3) year period of
this Agreement.
Fuel Dispensing
a) Fuel. SKYWERX AVIATION, INC shall furnish a letter of product
commitment from an oil vendor acceptable to the Blair Airport Authority prior
to the effective date of this agreement. SKYWERX AVIATION, INC shall
provide at least two (2) grades of aircraft fuel, including 10OLL and JET A.
Said fuel shall be that of a vendor acceptable to the BLAIR AIRPORT
AUTHORITY, but SKYWERX AVIATION, INC, shall not be required to
sell "branded" fuel. Fuel prices shall be posted in public view.
b) Fueling Facilities
1) SKYWERX AVIATION, INC shall utilize Blair Airport Authority
fuel storage and dispensing pumps and meter, BLAIR AIRPORT
AUTHORITY shall be required to maintain all fuel facilities so that
they fully comply with requirements set out by the Environmental
Protection Agency (EPA), the FAA, and all State of Nebraska
Environmental regulations. Maintenance of the facilities shall
include maintenance of all fuel dispensing and storage equipment
owned by the BLAIR AIRPORT AUTHORITY. SKYWERX
AVIATION, INC shall notify BLAIR AIRPORT AUTHORITY
immediately in writing should a possible or actual maintenance
problem exist with the fuel facilities and such problem is
discovered by an agent of SKYWERX AVIATION, INC.
2) SKYWERX AVIATION, INC. shall be required to operate all fuel
facilities so that they fully comply with requirements set out by the
Environmental Protection Agency (EPA), the FAA, and all State of
Nebraska Environmental regulations.
3) Nothing in this agreement will prevent SKYWERX AVIATION,
INC., at its sole expense, from securing and operating fuel trucks
for refueling provided that all applicable airport, State of Nebraska,
and Federal rules, regulations and laws are observed.
4) The FBO shall store, handle and dispose of any hazardous waste or
contaminated fuel in accordance with Federal, State and local laws,
regulations and ordinances now or hereafter enacted. FBO shall bear
all costs for cleanup of hazardous waste or contaminated fuel,
consequent to its failure to properly store, handle and dispose of said
hazardous waste or contaminated fuel. All hazardous waste, including
contaminated fuels, shall be disposed of off the airport property. The
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FBO shall make available at the request of the Blair Airport Authority
or his designated representative, copies of all manifested waste and
certification of approved sites.
S) SKYWERX AVIATION, INC. shall keep true and accurate records of
all fuel procured for use or sale at the Blair Airport 40TA) by
SKYWERX AVIATION, INC., and shall keep accurate records of all
fuel used or sold by SKYWERX AVITION, INC. at the Blair Airport
(KBTA). Simultaneously with the payment of flowage fees,
SKYWERX AVIATION, INC. shall provide monthly reports to the
Blair Airport Authority regarding such fuel, in a form acceptable to
BLAIR AIRPORT AUTHORITY, documenting:
a) Fuel procured for use or sale at the Blair Airport.
b) Transfers of such fuel into the Blair airport tank farm, and
into other storage facilities at the Blair Airport, if
applicable.
c) Copies of bills of lading, delivery tickets, invoices, or
other documents verifying actual quantities of such fuel.
d) Fuel meter readings evidencing actual quantities of fuel
sold or used.
6) SKYWERX AVIATION, INC shall be responsible for maintaining
the registration of all fuel tanks with the appropriate Federal, State,
and Local agencies, and any other agency now or hereafter
requiring so, and be solely responsible for payment of all
registration fees and other associated costs. SKYWERX
AVIATION, INC shall annually provide the Blair Airport
Authority with copies of all registrations referenced herein.
7) SKYWERX AVIATION, INC shall be responsible for all costs
associated with the dispensing of aviation fuel under this agreement
for both fill -service and self-service usage. This includes, but is not
limited to credit card charges for the sale of Aviation Fuel, all
normal operations, excluding all maintenance costs of all fuel
dispensing and storage equipment owned by the BLAIR AIRPORT
AUTHORITY, and including all costs associated with licensing and
monitoring of fuel facilities to meet all Federal and State of
Nebraska rules and regulations for sale and storage of fuel for
aviation.
c) Annual Report Within thirty (30) days after the end of each of the Blair
Airport Authority's fiscal years, SKYWERX AVIATION, INC shall submit
to the Blair Airport Authority a detailed statement of total gallons of fuel
procured for use or sale at the Blair Airport.
d) Audit. The Blair Airport Authority, may, at its sole expense, request an
independent audit, by a Certified Public Accountant, of fuel flowage
hereunder. Any adjustment to fuel flowage payments consequent to any
audit made hereunder shall be made forthwith upon completion of such
audit,
In addition, the Blair. Airport Authority shall have the right at any time
during the term of its agreement with the SKYWERX AVIATION, INC to
authorize an audit of SKYWERX AVINAON'S records pertaining to its
FBO operation on the airport. Such audits shall be undertaken by an
independent Certified Public Accountant, satisfactory to the Blair Airport
Authority. The cost of such audit shall be borne by the Blair Airport
Authority.
4. Insurance and Indemnification
a) Fire Insurance. During the fall term of this FBO Franchise agreement, SKYWERX
AVIATION, INC shall, at its sole cost and expense, cause all improvements
constructed or installed by SKYWERX AVIATION, INC to be kept -insured to the
full insurable value atereof against the perils of fire, extended coverage,
vandalism, and explosion and like perils, Said insurance shall be procured from a
company authorized to do business in the State of Nebraska, including non -admitted
insurers, and FBO shall provide the Blair Airport Authority with evidence satisfactory
to the Blair Airport Authority that such coverage has been procured and is being
maintained.
The proceeds of any such insurance, paid on account of any of the perils aforesaid,
shall be used to defray the cost of repairing, restoring, or reconstructing said
improvements, as necessary; provided, however, that if the permit is canceled, such
proceeds shall be used to restore the leased premises to its original condition,
including the removal of all buildings, structures and debris.
Property insurance policies required by this paragraph shall contain waiver of
subrogation endorsements and shall provide that the Blair Airport Authority shall
be notified by the insurance company of any renewals, changes or cancellations of
such insurance coverage by at least thirty (30) days written notice to the Blair
Airport Authority, and shall name the Blair Airport Authority as an additional
insured.
b) Indemnification. The Blair Airport Authority shall stand indemnified by SKYWERX
AVIATION, INC as herein provided. SKYWERX AVIATION is and shall be
deemed to be an independent contractor and operator responsible to all parties for
its respective acts or omissions, and the Blair Airport Authority shall in no way be
responsible therefore. SKYWERX AVIATION, INC covenants and agrees to
indemnify, hold harmless and defend Blair Airport Authority, its officers, agents,
servants and employees from and against any and all claims for property damage or
bodily injury to persons or property arising out of or incident to the leasing of or the
use and occupancy of the premises by SKYWERX AVIATION, INC, its
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employees, patrons, contractors of subcontractors, and SKYWERX AVIATION,
INC does hereby assume all liability and responsibility for all claims or suits for
damages for bodily injury to persons or damage to property of whatsoever kind or
chafacter whether real or asserted, occurring during the term of this FBO
FRANCHISE AGREEMENT in connection with the use or occupancy of the
premises by SKYWERX AVIATION, INC, its employees, patrons, contractors or
subcontractors. SKYWERX AVIATION, INC shall pay promptly when due all bills
or charges for construction or maintenance as well as any other amounts due for
material or services furnished in connection therewith, and SKYWERX AVIATION,
INC shall indemnify the Blair Airport Authority against any and all mechanics
liens imposed upon the premises demised hereunder arising as a result of
SKYWERX'S conduct or inactivity.
SKYWERX AVIATION, INC shall promptly and prior to the effective date of this
agreement provide public liability insurance for personal injuries, including
death, . growing out of any one accident or other cause in a minimum sum of One
Million and No/100 dollars ($1,000,000.00) per occurrence, Two Hundred
Thousand and No/100 dollars ($200,000.00) per person. Shall provide property
damage liability insurance in a minimum sum of One Million and No/100 dollars
($1,000,000.00) for property damage growing out of any one accident or other
cause; shall provide products and completed operations liability insurance in a
minimum sum of One Million and No/100 dollars ($1,000,000.00), and shall
provide hangar keeper's liability in in a minimum amount of One
Hundred Thousand and No/100 dollars ($100,000.00). The Blair Airport
Authority may periodically require the above limits of coverage to be
adjusted as deemed prudent, but in no case more than once annually.
SKYWERX AVIATION, INC shall maintain said insurance with insurance
underwriters authorized to do business in the State of Nebraska, including non -
admitted insurers, satisfactory to the Blair Airport Authority. SKYWERX
AVIATION, INC shall furnish the Blair Airport Authority with a certificate from
the insurance carrier showing such insurance to be in full force and effect
during the entire term of this agreement. Said certificates shall contain a
provision that written notice of cancellation of any material change in said
policy to the insurer shall be delivered to the Blair Airport Authority thirty
(30) days in advance of the effective date thereof, and said policy shall
name the Blair Airport Authority as an additional insured.
c. Primary Insurance: Consistent with the indemnification provisions of this
Agreement, SKYWERX AVIATION, INC' S insurance policies will respond on a
primary basis if the damage or claim is the responsibility and/or caused by the
SKYWERX AVIATION, INC, with any insurance carried by BLAIR AIRPORT
AUTHORITY to be considered as secondary or excess insurance.
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5. SKYWERX Aviation, INC Rights. SKYWERX AVIATION, INC shall have the
right:
a. In common with others so authorized, to use common areas of the airport,
including runways, taxiways, aprons, roadways, floodlights, landing lights,
signals and other conveniences for the take -off, flying and landing of aircraft.
b, To the nonexclusive use, in common with others, of the airport parking areas,
appurtenances and improvements thereon, but this shall not restrict the right of the
BLAIR AIRPORT AUTHORITY to charge visitors a fee for the use of such
areas.
c. To operate, maintain, repair and store subject to approval of BLAIR AIRPORT
AUTHORITY in the interests of safety and convenience of all concerned, all
equipment necessary for the conduct of SKYWERX AVIATION, INC'S business.
d. Of access to and from the premises, limited to streets, driveways or sidewalks
designated for such purposes by the BLAIR AIRPORT AUTHORITY, and which
right shall extend to SKYWERX AVIATION, INC'S employees, passengers,
guests, invitces, and patrons.
e. All activities of in accordance with this agreement shall comply with laws of
the Federal Government, the State of Nebraska, the regulations of the Blair
Airport Authority, and the requirements of the Federal Aviation Administration
and any other duly authorized governmental agency.
6. Right to Inspect. BLAIR AIRPORT AT_1THORTTY reserves the right to enter upon
the premises at any reasonable time for the purpose of malting any inspection it may
deem expedient to the proper enforcement of any of the covenants or conditions of this
agreement.
7. Transfer. SKYWERX AVIATION, INC may not, at any time during the term of this
agreement, assign, or transfer this agreement or any interest therein, without. the written
consent of BLAIR AIRPORT AUTHORITY, which consent shall not unreasonably be
withheld.
8. Laws and Regulations. SKYWERX AVIATION, INC agrees to observe and obey
during the term of this agreement, all laws, ordinances, rules and regulations promulgated
and enforced by BLAIR AIRPORT AUTHORITY, and by any other proper authority
having jurisdiction over the conduct of the operations at the airport.
9. Hold Harmless. SKYWERX AVIATION, INC agrees to hold BLAIR AIRPORT
AUTHORITY free and Harmless from loss from each and every claim and demand of
whatever nature, made on behalf of or by any person or persons, for any wrongful,
careless or negligent act or omission on the part of SKYWERX AVIATION, INC, it's
agents; servants and employees, and from all loss and damages, resulting in bodily injury
or property damage, by reason of such acts or omissions.
10. Quiet Enjoyment. So long as SKYWERX AVIATION, INC conducts its business in
a fair, reasonable and workmanlike manner, SKYWERX AVIATION, INC shall
peaceably have all the rights and privileges granted in this agreement.
11. Signs. SKYWERX AVIATION, INC agrees that no signs or advertising matter may
be erected without the written consent of BLAIR AIRPORT AUTHORITY, which
consent shall not be unreasonably withheld.
12. Fair and Nondiscriminatory Services. SKYWERX AVIATION, INC in the
conduct of furnishing services to the public at the Airport, shall famish services on a fair,
equal and not unjustly discriminatory basis to all users, and shall charge fair, reasonable
and not unjustly discriminatory prices for each unit or service.
13. Title VI, Civil Rights Assurances. SKYWERX AVIATION, INC, for themselves,
their personal representatives, successors in interest, and assigns, agree that (1) no person
on the grounds of race, color, or national origin shall be excluded from participation in,
denied the benefits of, or be otherwise subjected to discrimination in the use of said
facilities, (2) that SKYWERX AVIATION, INC shall use the fuel facilities in compliance
with all other requirements imposed by or pursuant to Title 49, Code of Federal
Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Pant 21,
Nondiscrimination, in Federally Assisted Programs of the Department of Transportation -
Effectuation of Title VI of the Civil Rights Act of 1964, and as the Regulations may be
amended.
14. Nonexclusive Rights. SKYWERX AVIATION, INC shall have the right and
privilege of engaging in and conducting a FBO business on the premises of the airport
under the terms and conditions as set forth, provided, however, that this agreement shall
not be� construed in any manner to grant SKYWERX AVIATION, INC or those claiming
under it the exclusive right to the use of the premises and facilities of the airport other
than expressly described herein.
15. Aircraft Service by Owner or Operator. It is clearly understood by SKYWERX
AVIATION, INC that no right or privilege has been granted which would operate to
prevent any person, firm, or corporation operating aircraft on the airport from performing
any, services on its own aircraft with its own regular employees (including, but not
limited to, routine maintenance) that it may choose to perform.
16. Hours of Operations. SKYWERX AVIATION, INC agrees to maintain operations
during a schedule of hours, which schedule shall be filed with and approved by BLAIR
AIRPORT AUTHORITY. Hours of operation shall not be reduced below the minimum
without written consent of the BLAIR AIRPORT AUTHORITY, except during any
period when the airport is closed by any lawful authority restricting the use in such a
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manner as to interfere with use by SKYWERX AVIATION, INC for its business
operation.
Blair Airport Authority shall not be liable for any costs incurred or profits lost by
SKYWERX AVIATION, INC due to the closure of the airport due to any lawiifl cause.
17. Jet A Fuel Testing: SKYWERX AVIATION, INC shall pay for any and all fees for
testing the fuel used in accordance with this agreement. The testing must be in
compliance with the minimum requirements of the Fuel vender and shall comply with the
operable Fuel Service Contract between SKYWERX AVIATION and the Fuel vender.
18. Taxes, SKYWERX AVIATION, INC shall pay all taxes or assessments that may be
levied against the personal property of SKYWERX AVIATION, INC and/or any and all
property taxes assessed on the hangar property subject to this lease throughout the
duration of the lease.
19. Airport Development. BLAIR AIRPORT AUTHORITY reserves the right to further
develop or improve the airport as it sees fit, regardless of the desires or view of
SKYWERX AVIATION, INC, and without interference or hindrance.
20. Blair Airport Authority Rights. BLAIR AIRPORT AUTHORITY reserves the
right, but shall not be obligated to SKYWERX AVIATION, INC, to maintain and keep in
repair the landing area of the airport and all publicly owned facilities of the airport,
together with the right to direct and control all activities of SKYWERX AVIATION, INC
in this regard.
21. Subordination Provision. This agreement shall be subordinate to the provisions of
any existing or future agreement between BLAIR AIRPORT AUTHORITY and the
United States or the State of Nebraska, relative to the operation or maintenance of the
airport, the execution of which has been or may be required as a condition precedent to
the expenditure of federal or state funds for the development of the airport. Furthermore,
this agreement may be amended to include provisions required by those agreements with
the United States or the State of Nebraska.
22, Financial Disclosure. SKYWERX AVIATION, INC shall furnish such evidence as
maybe reasonably requested by BLAIR AIRPORT AUTHORITY (including Completion
of a credit application) to show SKYWERX AVIATION, INC is financially capable of
providing the services and facilities set forth in the this agreement.
23. Default. SKYWERX AVIATION, INC shall be deemed in default upon:
a. The filing of a petition under the Federal Bankruptcy Act or any amendment,
including a petition for reorganization or an arrangement;
b. Violation of any restrictions in this agreement, or failure to keep any of its
covenants after written notice to cease such violation and failure to correct such
violation within thirty (30) days;
c. Abandonment of the facilities.
d. non-payment of flowage fees at agreed-upon rates;
e. non-payment of reimbursements to BLAIR AIRPORT AUTHORITY
according to the terms of this agreement.
24. Rights after Termination. In the event of termination for default by SKYWERX
AVIATION, INC, the BLAIR AIRPORT AUTHORITY shall have the right at once and
without further notice to SKYWERX AVIATION, INC, or surety to take possession of
the fuel farms and fuel business inventory of SKYWERX AVIATION, INC, and any and
all goods and chattels belonging to SKYWERX AVIATION, INC or its associates which
may be found related to this agreement, without being liable for prosecution or to any
claim for damages. Upon such termination by default, all rights, powers and privileges of
SKYWERX AVIATION, INC shall cease, and SKYWERX AVIATION, INC shall
immediately vacate any and all use of fuel facilities occupied by SKYWERX
AVIATION, INC under this agreement, and shall make no claim of any kind whatsoever
against the BLAIR AIRPORT AUTHORITY, its agents or representatives, by reason of
such termination, or any act incident thereto.
25. Choice of Law. This contract shall be governed by Nebraska law and any dispute
arising out of or under said agreement shall be heard in the court system of Washington
County, Nebraska. Said court system shall be the forum of choice by both parties to this
agreement.
fl.
DATED this 5 day of ly akeA
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OF
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AVIATION, INC
OF THE