AIR CARGO OPERATING AGREEMENT
BETWEEN
CASPER / NATRONA COUNTY INTERNATIONAL AIRPORT
AND
EMPIRE AIRLINES
11559 NORTH ATLAS ROAD
HAYDEN, ID 83835
(208) 292-3850
TABLE OF CONTENTS
Article
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Page Number
General Agreement............................................................................................................................... 3
Term of Agreement ............................................................................................................................... 3
Fees ...................................................................................................................................................... 3
Method of Payment .............................................................................................................................. 4
Rights and Privileges of Lessee........................................................................................................... 4
Rights and Privileges of Lessor ............................................................................................................. 5
Obligations of Lessee ............................................................................................................................. 6
Insurance................................................................................................................................................. 8
Indemnification and Hold Harmless ..................................................................................................... 8
Obligations of Lessor .............................................................................................................................. 9
Cancellation by Lessor .......................................................................................................................... 9
Cancellation by Lessee ....................................................................................................................... 10
Waiver of Subrogation .......................................................................................................................... 11
No Waiver of Default ........................................................................................................................... 11
Remedies are Cumulative ................................................................................................................... 11
Damage to Property of Lessee and Others ........................................................................................ 12
Damage to Premises and Property by Lessee and Others................................................................ 12
Subordination........................................................................................................................................ 12
Laws of Wyoming Shall Govern/Venue for Disputes ......................................................................... 12
Counterparts ......................................................................................................................................... 12
Severability ............................................................................................................................................ 12
Independence of Contract .................................................................................................................. 12
Rights upon Termination ..................................................................................................................... 13
Misrepresentation and Invalid Provisions ......................................................................................... 13
Survival of Obligations/Successors and Assigns Bound .................................................................. 13
Holdover Possession of Premises by Lessee .................................................................................... 13
Paragraph Headings ........................................................................................................................... 13
Notices .................................................................................................................................................. 13
Closing and Signature ......................................................................................................................... 14
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AIR CARGO OPERATING AGREEMENT
- EMPIRE AIRLINES Article 1
General Agreement
THIS AIR CARGO OPERATING AGREEMENT (the “Agreement”) made and entered into this 17th day of June,
2009, by and between the Board of Trustees of Casper/Natrona County International Airport, County of Natrona, State
of Wyoming, a corporate body, hereinafter referred to as the "LESSOR", and Empire Airlines, a Idaho corporation
authorized to do business in the State of Wyoming, hereinafter referred to as "LESSEE".
PRELIMINARY RECITALS
WHEREAS, the Lessor is the owner and operator of Casper/Natrona County International Airport, an airport
situated in Casper, Wyoming (the "Airport"); and
WHEREAS, Lessee is primarily engaged in the business of the transportation and delivery of communications
and other property (hereinafter referred to as “air freight”) which involves the use of air transportation by aircraft, and
desires to obtain the right and privilege of using certain of the Lessor's Airport facilities; and
WHEREAS, Lessor desires to have the scheduled delivery of communications and other property transported by
air, and to grant Lessee the right to use certain Airport facilities; and
WHEREAS, the Lessor deems it advantageous to the operation of its Airport to grant Lessee the rights and
privileges as herein set forth.
NOW, THEREFORE, for and in consideration of the fees, covenants, and agreements contained herein, and for
other good and valuable consideration, IT IS MUTUALLY AGREED AND UNDERSTOOD BETWEEN THE LESSOR AND
LESSEE THE FOLLOWING.
Article 2
Term of Agreement
The term of this Agreement shall be for a period of twenty two (22) months, commencing in full force and effect
on the 1st day of July, 2009, through the 30th day of April, 2011, unless sooner terminated or canceled as herein
provided.
Article 3
Fees
3.1
Landing Fees - For the privilege and right of using the Airport in the conduct of its air freight business,
Lessee does hereby agree to pay the Lessor landing fees as follows:
Year
Rate
July 1, 2009 to
April 30, 20011
$0.83
per each 1,000 pounds of maximum gross landing weight as certified by the Federal Aviation Administration,
for actual landings at the Airport by Lessee's aircraft, or aircraft in which Lessee has an agreement in place,
whether written or oral, to support Lessee’s air freight operations. The aforesaid landing fees shall not apply to
courtesy, test, training, inspection, emergency, or other non-revenue flights landed at the Airport, nor shall said
landing fee apply when an aircraft returns to the Airport because of meteorological, mechanical, or similar
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emergency or precautionary reasons. The term "maximum gross landing weight" as used herein shall be the
maximum allowable gross landing weight of such aircraft as certified by the Federal Aviation Administration.
3.2
Reporting - Lessee shall, within five (5) days after the last day of each month, furnish the Airport Manager a
correct statement on a form provided by the Lessor which shall include, but not be limited to: the total number
of landings for each type of aircraft, including the FAA certified maximum gross landing weight of each aircraft
and total freight and/or mail, in pounds, shipped and received. In the absence of an individual FAA certified
aircraft maximum gross landing weight report, the maximum gross landing weight as specified in FAA AC No.
150/5300-13, Appendix 12, or as such Advisory Circular is amended will be used in calculating the landing
fees of Lessee during the preceding month.
Lessee agrees that it shall file with the State of Wyoming all records and reports required under the
laws of the State regarding aviation fuel loaded or used by it at the Airport, and at the same time to provide
Lessor with a copy of all such records or reports.
3.3
Additional Federal Charges – In the event Lessor is required to make additional direct expenditures in
connection with the implementation of any future federal regulation imposed upon the Lessor as a result of
Lessee’s operation during the term of this Agreement, the Lessor may call a conference for the purpose of
discussing methods of compliance and recovery of direct, out-of-pocket costs so incurred.
3.4
Business Records - Lessee will keep or cause to be kept true, accurate, and complete records of business
conducted. Lessee further agrees that Lessor shall have the right to examine all pertinent records at any
and all reasonable times for the purpose of determining the accuracy thereof.
3.5
Collection Fees – In the event Lessee is in default of payments due as specified herein beyond any applicable
notice and cure period, Lessee shall pay collection fees up to 50% of the outstanding balance at the time of
default whether a lawsuit is filed or not.
Article 4
Method of Payment
No demand for fees need at any time be given, and it shall be the duty of Lessee to pay all monies when due.
Payments due shall be paid by Lessee on or before the twentieth (20th) day of the month following the end of each
calendar month of this Agreement. Payments received later than this date are subject to interest in the amount of 1½%
per month. Should a payment from Lessee be dishonored or returned by Lessor’s bank for any reason, Lessor shall be
entitled to apply, in addition to the above assessments, a service charge of fifty dollars ($50.00) for each such
occurrence. The implementation of the interest provision herein shall not preclude the Lessor from terminating this
Agreement for default in the payment of fees or charges, as specified in Article 11, Cancellation by Lessor.
Article 5
Rights and Privileges of Lessee
For the purpose of facilitating the operation of Lessee's air freight operation, Lessor does hereby grant to
Lessee, and Lessee does hereby take from Lessor the following rights and privileges during the term of this Agreement.
5.1
Lessee has the right to land, take off, taxi, tow, park, load, unload, and store (temporary or by emergency)
Lessee's aircraft in areas of the Airport in such manner as may reasonably be prescribed by the Airport
Manager.
5.2
Lessee has the right to perform training of personnel in its employ or to be employed by it, except primary flight
training, as well as to test its aircraft and other equipment. It is understood that such training and testing shall
be incidental to the operation of Lessee's air freight business. It is also understood that engine run-up testing
conducted during the hours of 10 p.m. and 5 a.m. central time are to be conducted in an area and manner as
reasonably designated by the Airport Manager.
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5.3
Lessee has the right to service its aircraft with gasoline, oil, greases, and other fuel and lubricants, equipment
and supplies, in addition to other equipment by truck or otherwise.
5.4
Lessee, its employees, invitees, suppliers of materials, and furnishers of service shall have the right of ingress
and egress to and from the Airport facilities subject to regulations governing the use of the Airport as may be
established by the Airport Manager.
5.5
Lessee, in conjunction with the exercise by it of any of the rights and powers granted to it herein shall have full
right to procure at the Airport or elsewhere all materials, fuel, parts, equipment, supplies, and products from
any person of its own choice, and no additional charges, fees, or tolls shall be charged by Lessor, directly or
indirectly against Lessee for any right or privilege granted to Lessee by this Agreement.
5.6
Lessee has the non-exclusive use, in common with others so authorized, to provide to an air freight business at
the Airport.
5.7
Lessor covenants that upon paying the fees and performing the covenants and agreements herein
contained, Lessee shall peaceably and quietly use the Airport for the term of this Agreement. Lessee agrees
that temporary inconveniences such as noise, disturbances, traffic detours and the like that do not
unreasonably interfere with Lessee’s operations thereon, caused by or associated with the construction of
Airport improvements, shall not constitute a breach of quiet enjoyment. Lessee understands that Lessor
shall not be liable for any interruption in Lessee’s business from any cause whatsoever. Lessee further
agrees not to disturb Lessor or any other tenant of the Airport by creating or permitting any disturbance or
other unusual noise or other undesirable condition on or about the Airport.
Article 6
Rights and Privileges of Lessor
The Lessor, in addition to any rights herein retained by it, reserves the following privileges:
6.1
Lessor Representative - The Airport Manager is hereby designated as the official representative for the
enforcement of all provisions in this Agreement with full power to represent the Lessor in dealings with Lessee
in connection with the rights and obligations herein provided, actions relating to policy determination,
modification of this Agreement, subsequent permissive authorization under this Agreement, termination of this
Agreement, and any similar matters affecting the terms of this Agreement.
6.2
War, National Emergency, Riot, or Natural Disaster - During time of war, national emergency, riot or natural
disaster, the Lessor shall have the right to lease the entire Airport or any part thereof to the United States or
State of Wyoming for military or National Guard use and, in such event, the provisions of this Agreement,
insofar as they are inconsistent with the provisions of any lease to any such unit of government, shall be
suspended for the period of such government lease.
6.3
Government Use of Airport - This Agreement shall be subordinate to the provisions of any existing or future
agreement between the Lessor and the United States Government, 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 funds for the development of the Airport.
6.4
Airport Development – The Lessor has the right, but shall not be obligated to Lessee, to develop or improve the
landing areas and other portions of the Airport as it sees fit, regardless of the desires or views of the Lessee,
and without interference or hindrance. In the event that Lessor makes improvements which benefit Lessee,
where appropriate, Lessee agrees to negotiate with Lessor fair and reasonable modifications to the Fees and
Rentals as specified in Article 3, Fees, or the establishment of new fees as the case may be.
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6.5
Unrestricted Right of Flight – The Lessor, for the use and benefit of the public, has a free and unrestricted right
of flight for the passage of aircraft in the airspace above the surface of the Airport, 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 air, using said airspace or landing at, taking off from, or operating on or about
the Airport.
6.6
Aerial Approaches - The Lessor has the right to take any action it considers necessary to protect the aerial
approaches and transition surfaces of the Airport against obstruction, together with the right to prevent the
Lessee from erecting or permitting to be erected any building or other structure on the Airport, which, in the
opinion of the Airport Board of Trustees would limit the usefulness of the Airport or constitute a hazard to
aircraft.
Article 7
Obligations of Lessee
7.1
Rules and Regulations - Lessee agrees to observe and obey the rules and regulations governing the conduct
and operation of the Airport facilities promulgated, from time to time, by the Airport Manager. The rules and
regulations shall not be unreasonable or inconsistent with safety/security of any Federal agency having
jurisdiction with respect thereto, shall apply to all tenants at the Airport as applicable, nor shall they be
inconsistent with the procedures prescribed or approved from time to time by the Federal Aviation
Administration for landing and taking off at the Airport of airplanes or air freight operators and if such
inconsistency does arise, such rules and regulations shall be promptly amended by Lessor so as to eliminate
the inconsistency; provided further, that until so amended, any rule or regulation inconsistent therewith shall
be deemed to have no force or effect. It is the intent hereof that no rules or regulations shall be promulgated
herein which shall be inconsistent with, or nullify any of the rights and privileges expressly granted under this
Agreement. Lessee further agrees to abide by all applicable Federal, State, and local laws and ordinances now
in effect or hereafter promulgated, including all environmental regulations.
7.2
Security Plan - The Lessor has implemented an Airport Security Plan in a form acceptable to the Transportation
Security Administration (TSA) pursuant to 49 Code of Federal Regulations Part 1520. The Lessor reserves the
right to modify that plan from time to time, as it deems necessary, to accomplish compliance with TSA
Regulations. Lessee will be pre-notified of all changes to the Security Plan affecting air cargo operations.
Lessee shall at all times comply with the Security Plan and indemnify and hold harmless the Lessor from any
violations of said Security Plan committed by any agent or employee of Lessee. Further, Lessee agrees to
reimburse the Lessor in full for any fines or penalties levied against the Lessor for security violations as a result
of any negligent actions or omissions on the part of the Lessee, its agents, suppliers, or employees. Lessor
agrees not to assess any fines against Lessee if Lessee is not found negligent for security violation(s).
7.3
Ground Vehicle Operators (GVO) Program – The Lessor has implemented a Ground Vehicle Operators program
acceptable to the Federal Aviation Administration (FAA) pursuant to 14 Code of Federal Regulations Part 139.
The Lessor reserves the right to modify that program from time to time, as it deems necessary, to accomplish
compliance with FAA Regulations. Lessee, it’s employees and agents, shall at all times comply with the Ground
Vehicle Operators program and indemnify and hold harmless the Lessor from any violations of said program
committed by any agent or employee of Lessee. Further, Lessee agrees to reimburse Lessor in full for any
fines or penalties levied against the Lessor for violations as a result of any negligent actions or omissions on
the part of the Lessee, its agents, suppliers, or employees. Lessor agrees not to assess any fines against
Lessee if Lessee is not found negligent for violation(s). Additionally, Lessor retains to right to terminate this
Operating Agreement based on violation(s) of the GVO program by Lessee, its employees and/or agents.
7.4
Business Use - Lessee agrees not to engage in any other activities or business within the confines of the Airport
property, other than those activities specifically permitted under this Agreement, unless so authorized in writing
by the Airport Manager.
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7.5
Assignment - Lessee shall not assign this Agreement, or any of its rights hereunder, without the prior written
consent of the Airport Manager, such consent not to be unreasonably withheld, and in requesting such
consent, Lessee agrees to provide the Airport Manager a full copy of the sub-operating agreement, including all
fees, terms, and conditions prior to committing to a sub-operating agreement, provided that the foregoing shall
not prevent the assignment of this Agreement to any corporation with which the Lessee may merge or
consolidate, or which may succeed to the business of the Lessee, or to which the business and properties of
Lessee, or substantially all of the same, may be sold or transferred by the Lessee.
7.6
Affirmative Action - Lessee, for itself, its heirs, personal representatives, successors in interest and assigns, as
a part of the consideration hereof, does hereby covenant and agree, as a covenant running with the land, that
in the event facilities are constructed, maintained or otherwise operated on the said property described in this
Agreement, for a purpose for which a Department of Transportation (DOT) program or activity is extended or for
another purpose involving the provision of similar services or benefits, the Lessee shall maintain and operate
such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21,
Non-Discrimination in Federally Assisted Programs of the DOT, and as said Regulations as may be amended.
Lessee, for itself, its personal representatives, successors in interest and assigns, as part of the
consideration hereof, does hereby covenant and agree as a covenant running with the land, that: (1) no person
on the grounds of race, color, or national origin shall be excluded from participating in, denied the benefits of,
or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any
improvements on, over or under such land and the furnishing of services thereon, no person on the grounds of
race, color or national origin shall be excluded from participating in, denied the benefits of or otherwise be
subjected to discrimination, (3) that the Lessee shall use the Airport in compliance with all other requirements
imposed by or pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the
Department of Transportation, and as said Regulations may be amended.
Lessee assures that it will comply with pertinent statutes, Executive Orders and such rules as are
promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age or
handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance.
This provision obligates Lessee or its transferee for the period during which Federal assistance is extended to
the Airport program, except where Federal assistance is to provide, or is in the form of personal property or real
property or interest therein or structures or improvements thereon. In these cases, the Provision obligates the
party or any transferee for the longer of the following periods: (a) the period during which the property is used
by the Lessor or any transferee for the purpose for which Federal assistance is extended, or for any other
purpose involving the provision of similar services or benefits; or (b) the period during which the Lessor or any
transferee retains ownership or possession of the property.
7.7
Approval – Whenever Lessee requires Lessor’s approval under the terms of this Agreement, such approval
shall not be unreasonably withheld.
7.8
Costs of Enforcement - Lessee covenants and agrees to pay and discharge all reasonable costs, attorneys'
fees, and expenses that shall be made and incurred by Lessor in enforcing the covenants and provisions of this
Agreement.
7.9
Smoking - Consistent with Lessor’s No Smoking policy, Lessee agrees that there will be no smoking permitted
within the Air Operations Area (non-public portion) of the Airport.
7.10
Parking – Lessee’s employees shall park only in an area designated by the Airport Manager, or in other publicly
designated parking areas, whereby said employees shall comply with established rules and regulations of such
public parking area. Lessee’s employees shall at all times comply with posted signs regulating the movement
of vehicles, and shall comply with all rules governing the parking of vehicles in the employee parking lot,
including payment of any employee parking fees established by the Lessor.
7.11
Taxes, Licenses, and Permits – Lessee shall obtain and keep current all City, County, State and Federal
licenses and permits that may be required in its operation. Also, Lessee will bear, pay, and discharge all taxes,
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assessments, and levies of every nature and kind which may be taxed, charged, or imposed lawfully by a
governmental agency.
Article 8
Insurance
Lessee shall, at its expense, maintain insurance in full force and effect during the term of this Agreement in
such amounts and coverages as to meet the minimum limits of liability specified below, and insurance shall be placed
with companies or underwriters authorized to do business in the State of Wyoming satisfactory to Lessor. The
insurance policies shall be:
8.1
Commercial General Liability with limits no less than $5,000,000 combined single limit per occurrence. Said
policy shall cover aircraft liability, passenger legal liability, premises liability, baggage and cargo liability and hull
insurance. Such insurance shall include endorsements for personal injury and contractual liability.
8.2
Business Automobile Policy with limits no less than $1,000,000 combined single limit per occurrence. This
insurance shall cover owned, non-owned, and hired vehicles.
On the Commercial General Liability policy, the Lessor, its appointed officials, agents and employees shall be
named as additional insured to the extent of the liability assumed by the Lessee in the following Indemnification and
Hold Harmless Article, provided that the inclusion of such additional insureds shall not operate to increase the limits of
the insuring company's liability. Lessee shall, upon execution of this Agreement, furnish to the Airport Manager
certificates of insurance evidencing coverage effected and to be maintained for the term of this Agreement. The
certificates of insurance shall contain a provision that coverages will not be cancelled or non-renewed during the term of
this Agreement unless at least thirty (30) days prior to the date of such cancellation, reduction, or other material change
written notice has been given to the Lessor in the manner specified in this Agreement. Where any policy(ies) has/have
normal expirations during the term of this Agreement, written evidence of renewal shall be furnished to the Airport
Manager prior to such expiration. Upon written request by the Lessor, Lessee shall provide certified copies of the
required insurance policies.
Each party agrees to insure its property against loss covered by the standard fire and extended coverage policy,
and each party hereby waives all claims against the other for loss or damage to the property which each has hereunder
agreed to insure. This waiver includes insurance deductibles and all other forms of self-insurance, and extends to each
party's officers, directors, shareholders, employees, and agents.
The Lessor may elect, at its option, to terminate this Agreement upon the cancellation or other termination of
any insurance policy issued in compliance with this Article, unless another policy has been filed and approved pursuant
to this Article, and shall have been in effect at the time of such cancellation or termination.
Article 9
Indemnification and Hold Harmless
Lessee agrees to fully indemnify, save and hold harmless the Lessor, the Natrona County Commissioners, the
Natrona County Airport Board of Trustees or its successor, and the officers, agents, and employees of Natrona County
from and against all claims, liabilities, judgments, damages, costs, and all expenses incidental to the investigation and
defense thereof which may accrue against, be charged to, or recovered from Lessor, directly or indirectly, by reason of
or account of or arising out of death, damages, or injuries to third persons or their property or damage to the property of
the Lessor caused by the fault, action, non-action, omission, or negligence of Lessee, its agents, or employees and
arising out of the use and occupancy of the Lessee’s operations at the Airport, including acts of joint negligence of the
Lessee or its agents, but the Lessee shall not be liable for any injury or damage or loss occasioned by the negligence of
the Lessor, its agents or employees. The parties shall give each other prompt and reasonable notice of any claim made
or actions instituted which in any way directly or indirectly affects or may affect each other or Lessee's insured, and
each party shall have the right to investigate, compromise, and defend the same to the extent of its own interests.
Lessor shall have the right, but not the duty at its sole cost and expense to participate in the defense of any claim or
litigation with attorneys of the Lessor's selection without relieving Lessee of any obligations hereunder. Any final
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unappealable judgment rendered against Lessor for any cause for which Lessee is adjudicated liable hereunder shall
be conclusive against Lessee as to liability and amount. Lessee agrees to furnish proper and adequate insurance
protection to Lessor, its agents, officers, and employees against any and all claims against them, which may arise from
Lessee's use and occupancy of and operations at the Airport, to the extent of Lessee's indemnity obligations and herein
before set forth. Lessee's obligations herein shall survive any termination of this Agreement or Lessee's activities on the
Airport.
Article 10
Obligations of Lessor
Except as otherwise specifically provided herein, the Lessor, during the term of this Agreement, agrees to use
its best efforts to maintain and keep the landing field, runways, aprons, taxiways, and all other Airport facilities in a safe,
workable, clean and sanitary condition and in good repair and free from obstruction in accordance with the Lessor's FAA
approved Airport Certification Manual. The Lessor also agrees to the following:
10.1
Lessor covenants and agrees not to enter into any lease, contract, or agreement with any other air freight
operator with respect to the Airport containing more favorable terms than this Agreement, or to grant to any
other air freight operator rights, privileges, or concessions with respect to the Airport which are not accorded to
the Lessee hereunder unless the same terms, rights, privileges, and concessions are concurrently made
available to the Lessee. Lessor may offer, at Lessor’s sole discretion, air freight establishment or development
incentives in accordance with FAA regulations or directives. Said incentives, if offered, will be made available
on a non-discriminatory basis.
10.2
Whenever Lessor requires approval under the terms of this Agreement, such approval shall not be
unreasonably withheld.
10.3
Lessor agrees to be responsible for the plowing of snow on runways, taxiways, common use ramp areas, nonexclusive use parking lots, and public access roads consistent with the priorities established in the Airport
Snow and Ice Control Plan, and as such plan is modified from time to time. Lessor will not plow closer than five
(5) feet from any hangar or building structure.
10.4
Provided that Lessor sells gasoline, Lessor agrees to sell gasoline to Lessee. Lessor will invoice Lessee on a
monthly basis, and Lessee agrees to pay Lessor in accordance with Article 4, Method of Payment. Lessee may
also procure gasoline from other sources. Lessor shall have the right to change fuel prices with each new fuel
delivery. Lessor shall present the new fuel price to Lessee prior to delivery, and Lessee shall make a
determination to purchase fuel at the presented rate.
Article 11
Cancellation by Lessor
The Airport Manager may cancel this Agreement, consistent with Federal Law, upon or after any one of the
following events:
11.1
The filing by Lessee of a voluntary petition in bankruptcy;
11.2
The institution of proceedings in bankruptcy against Lessee and the adjudication of Lessee as bankrupt
pursuant to such proceedings;
11.3
The taking by a court of jurisdiction of Lessee and its assets pursuant to proceedings brought under the
provisions of any Federal Reorganization Act;
11.4
The filing of any lien resulting from any act or omission of Lessee which is not discharged or contested in good
faith by proper legal proceedings within fifteen (15) days of receipt of actual notice by Lessee, unless Lessee
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posts a bond within this time period equal to the amount of the lien;
11.5
The voluntary abandonment by Lessee of its operations at the Airport, except in connection with a force
majeure event, for a period of fifteen (15) days or more;
11.6
The appointment of a receiver of Lessee's assets, or any general assignment for the benefit to Lessee's
creditors;
11.7
The divestiture of Lessee's estate herein by other operation of law;
11.8
The lawful assumption by the United States Government, or any authorized agency thereof, of the operation,
control or use of the Airport and facilities, or any substantial part or parts thereof, in such manner as to
substantially restrict Lessee, for a period of at least sixty (60) days, from its Airport operation;
11.9
Lessee becomes in arrears in the payment of the whole or any part of the amount(s) agreed upon herein for a
period of thirty (30) days after the time such payments become due;
11.10
Lessee willfully falsifies any of its records or figures so as to deprive the Lessor of any of its rights under the
terms of this Agreement; or
11.11
The material default by Lessee in the performance of any agreement required herein, and Lessee's failure to
commence and diligently continue to correct such default within twenty (20) days of written notice, unless a
shorter time is specified in this Agreement; provided, however, that no notice of cancellation, as above
provided, shall be of any force or effect if Lessee shall have remedied the default prior to receipt of the Airport
Manager's notice of cancellation.
In the event of any default by the Lessee, the Lessor shall have the right to declare this Agreement terminated.
In addition to the termination right described in the preceding paragraph, Lessor shall have the following rights and
remedies upon default by Lessee:
11.12
The recovery of any unpaid fees and other payments due and owing at the time of termination, plus any unpaid
fees that would have been earned and other payments that would have been made if the Agreement had not
been breached by Lessee.
11.13
The recovery of any damages, costs, fees, and expenses incurred by the Lessor as a result of the breach of the
Agreement by Lessee.
11.14
The removal of all persons from the Airport, and the removal and storage at Lessee’s expense of all of its
property on the Airport.
11.15
Any other right or remedy, legal or equitable, that Lessor is entitled to under applicable law.
Failure of the Airport Manager to declare this Agreement terminated upon the default of Lessee for any of the
reasons set out above shall not operate to bar or destroy the right of the Airport Manager to cancel this Agreement by
reason of any subsequent violation of the terms of this Agreement. Further, the acceptance of rental or fees by the
Lessor for any period after a default of any of the terms, covenants or conditions by Lessee shall not be deemed a
waiver of any right on the part of the Airport Manager to cancel this Agreement.
Article 12
Cancellation by Lessee
Lessee may cancel this Agreement at any time that it is not in default in its obligations by giving the Airport
Manager thirty (30) days written notice to be served as hereinafter provided after the happening of any of the following
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events materially impairing the conduct of its normal business from the Airport:
12.1
Issuance by a court of competent jurisdiction of an injunction in any way preventing or restraining normal use
of the Airport or any substantial part of it and the remaining in force of such injunction for a period of thirty (30)
consecutive days;
12.2
In the event Lessees’ contract with company they cargo for is terminated.
12.3
The inability of Lessee or its customers to use, for a period of thirty (30) consecutive days, the Airport or any
substantial part of it due to enactment or enforcement of any law or regulation, or because of fire, earthquake
or similar casualty or Acts of God or the public enemy;
12.4
The lawful assumption by the United States Government of the operation, control or use of the Airport or any
substantial part of it for military purposes in time of war or national emergency for a period of at least thirty (30)
days; or
12.5
The material default by Lessor in the performance of any agreement required herein, and Lessor’s failure to
commence and diligently continue to correct such default within thirty (30) days of written notice, unless a
shorter time is specified in this Agreement; provided, however, that notice of cancellation, as above provided,
shall not be of any force or effect if Lessor shall have remedied the default prior to receipt of the Lessee’s
notice of cancellation.
Failure of Lessee to declare this Agreement terminated upon the default of the Lessor for any of the reasons
set out above shall not operate to bar or destroy the right of Lessee to cancel this Agreement by reason of any
subsequent violation of the terms of this Agreement.
Article 13
Waiver of Subrogation
The Lessor and Lessee hereby release each other from any and all responsibility to the other for any loss of
damage to property caused by fire or other peril if the property is insured for such loss or damage in any policy of
insurance, even if such loss or damage is caused by the fault or negligence of the other party or anyone for whom
such party is responsible. Lessor and Lessee agree that to the extent any such policy of insurance provides a right
of subrogation in the insurer, or to the extent a right of subrogation exists independent of such policy, each will
indemnify and hold the other harmless for any loss, claim or expense suffered as the result of any action taken
pursuant to the right of subrogation. To the greatest extent possible, the Lessor and Lessee will, in furtherance of
the intent of this provision, make every effort to obtain from its insurance carrier a waiver of subrogation for the
matters here described in any such policy of insurance.
Article 14
No Waiver of Default
No action whatsoever, except an express written waiver, shall be construed to be or act as a waiver by Lessor
or Lessee of any default by the other in the performance of any of the terms, covenants, or conditions hereof to be
performed, kept, and observed by it. No express written waiver by Lessor or Lessee shall be construed to be or act as a
waiver of any subsequent default by the other in the performance of any of the terms, covenants and agreements
hereof to be performed, kept, and observed by it.
Article 15
Remedies are Cumulative
The rights and remedies hereby created are cumulative and the use of one remedy shall not be taken to
exclude or waive the right to the use of another. Lessor shall have the right to pursue any one or all of such remedies or
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any other remedy or relief that may be provided by law, whether stated in this Agreement or not.
Article 16
Damage to Property of Lessee and Others
Lessor shall have no liability to the Lessee or its sublessees, contractors, guests or invitees for any damage
to their property caused by fire, tornado, earthquake, windstorm or other casualty, not for any damage caused by the
act or omission of a third party.
Article 17
Damage to Premises and Property
by Lessee and Others
If any part of any Airport property is damaged by the act or omission of the Lessee, its agents, officers,
employees or contractors, the Lessee shall pay to the Lessor, within 30 days of a reasonably detailed demand, any
amount that is reasonably necessary to repair or replace the property.
Article 18
Subordination
This Agreement is and shall be subordinate to any existing or future Agreement between the Lessor and the
United States regarding the operation or maintenance of the Airport.
Article 19
Laws of Wyoming Shall Govern/Venue for Disputes
This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of
the State of Wyoming. Any lawsuit related to or arising out of disputes under this Agreement shall be commenced and
tried in the circuit court of Natrona County, Wyoming, and the Lessor and Lessee submit to the exclusive jurisdiction of
the circuit court for such lawsuits.
Article 20
Counterparts
This Agreement has been executed in several counterparts, each of which shall be taken to be an original, and
all collectively but one instrument.
Article 21
Severability
In the event that any provisions herein contained is held to be invalid by any court of competent jurisdiction,
the invalidity of any such provision shall in no way affect any other provision contained herein, provided that the
invalidity of any such provision does not materially prejudice either the Lessor or Lessee in their respective rights and
obligations contained in the valid provisions of this Agreement.
Article 22
Independence of Contract
It is further mutually understood and agreed that nothing herein contained is intended or shall be construed as
in any way creating or establishing the relationship of co-partners between the parties hereto, or as constituting the
Lessee as the agent or representative or employee of the Lessor for any purpose or in any manner whatsoever.
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Article 23
Rights Upon Termination
Upon expiration or sooner termination of this Agreement, Lessee's rights herein shall cease.
Article 24
Misrepresentation and Invalid Provisions
All terms and condition with respect to this Agreement are expressly contained herein, and both parties agree
that no representative or agent of Lessor or Lessee has made any representation or promise with respect to this
Agreement not expressly contained herein.
Article 25
Survival of Obligations/
Successors and Assigns Bound
The Lessee shall be responsible for the obligations in Article 9, Indemnification and Hold Harmless, in
perpetuity. Additionally, any payment obligation and repair obligation that exists as of the termination or
cancellation of this Agreement shall extend until the obligation is satisfied.
All of the provisions, covenants, stipulations and agreements in this Agreement shall extend to and bind the
legal representatives, successors and assigns of the respective parties.
Article 27
Paragraph Headings
All paragraph and subparagraph headings contained in this Agreement are for the convenience in reference
only, and are not intended to define or limit the scope of any provision.
Article 28
Notices
Notices to the Lessor or Lessee provided for herein shall be hand delivered or sent by registered mail, postage
prepaid, addressed to:
Lessor
Lessee
Airport Manager
Casper/Natrona County International Airport
8500 Airport Parkway
Casper, WY 82604-1697
Empire Airlines
Attn: Airport Agreement Administrator
11559 North Atlas Road
Hayden, ID 83835
or to such other addresses as the parties may designate to each other in writing from time to time, and such notices
shall be deemed to have been given when sent.
All payments shall be made payable to Casper/Natrona County International Airport and sent to the attention of
the Airport Manager at Lessor's address stated above.
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Article 29
Closing and Signature
IN WITNESS WHEREOF, the parties have hereunto set their hands this 17th day of June, 2009.
In the Presence of:
Casper/Natrona County International Airport (Lessor)
____________________________ By
______________________________________
Kermit Wille, Airport Board President
In the Presence of:
Empire Airlines (Lessee)
____________________________ By
_____________________________________
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