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Home My WebLink AboutA8953 - SOUTHWEST AIRLINESSECOND AMENDMENT TO AIRPORT USE AND LEASE AGREEMENT THIS SECOND AMENDMENT TO THE PALM SPRINGS INTERNATIONAL AIRPORT USE AND LEASE AGREEMENT ("Amendment"), is made and entered into as of the 1st day of January 2021, by and between the CITY OF PALM SPRINGS, a charter city and municipal corporation organized and existing under the laws of the State of California ("City") and Seu�� e_s� r# .• ., ;, L , a corporation organized and existing under the laws of the State of x.xs ("Airline"). RECITALS 1. Whereas City and Airline are parties to that certain Airport Use and Lease Agreement, dated July 1, 2014 (the "Agreement"), pursuant to which City granted to Airline various rights related to the use of the Palm Springs International Airport for the operation of Airline's air transportation business. 2. Whereas the First Amendment extended the Agreement term from July 1, 2019 through December 31, 2020. 3. Whereas, the Airline and the City mutually desire to extend the term and amend certain other provisions of the Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises in this Amendment, the parties hereto covenant, agree and bind themselves as follows: 1. Section 2.01 Term of Agreement The term of the Agreement: shall be extended from and including January 1, 2021 until June 30112022. 2. Section 22.01 Nondiscrimination and FAA Required Clauses The second paragraph of Section 22.01 of the Agreement is hereby deleted in its entirety and replaced with the following -- "Airline. for itself, personal representatives. successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree as a covenant running with the Premises that: (1) no person, because of actual or perceived race. religion, color, sex. age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis") shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) Airline shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis; (3) as a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Airline certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Airline activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination: rates of pay or other forms of compensation; and selection for training, 5 5 575.3 8 l 60\3342 8344 1 including apprenticeship; and further, that Airline is in full compliance with the provisions of Palm Springs Municipal Code Section 7,09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting; (4) in the construction of any improvements on, over, or under such Premises and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination; and (5) Airline shall use the Premises 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, Part 21, Nondiscrimination in Federally -Assisted Programs of the Department of Transportation -Effectuation of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended." 3. A Imp 'cability. This Amendment is attached to and made a part of the Agreement. In the event of any contradiction or inconsistency between the terms and provisions of this Amendment and the terms and provisions of the Agreement to which it is attached, the terms and provisions of this Amendment shall control and be interpreted in such a manner as to override any provision of the Agreement which would prevent the spirit and letter of the terms and provisions of this Amendment from being given full force and effect. All defined terms not specifically defined in this Amendment shall be given the same meaning as the defined terms in the Agreement. All other terms and conditions contained in the Agreement shall remain unchanged. 4. Joint Authorship. This Amendment has been entered into as an act of free will, without duress, and no presumption of authorship shall attach to same, and any ambiguity in the terms and conditions of this Amendment shall not be attributed to one party over the other. 55575 38160133428344.1 IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above. "CITY" City of Palm Springs By: CV41 AP ROVED BY MY COUN ,J-ks H n C) i44v v �► Il la b% 15 � City Manager APPROVED AS TO FORM: ATTEST: By: By: , Je rey SVBalling bony Meji City Attorney City Clerk AIRLINE: Check one: Cor oration Partnership p — P Corporations require two notarized signatures: One from each of thefollowing: A. Chairman of Board, President, or any Vice President: AND B. Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. BY;/ .ate By. Signature (nota'rized) Signature rized) Name: 12-I-F povi— Title: Name: Title: Managing Director -Airport Affairs 55575 3816093428344.1 CALMOMIA ALL4KNW SA ACKNONILEDGMEW CIVIL CODE § 1180 sF._?erx ,e¢^px'x.�dSsNn iiS �..C�.l�.x`. 1. r. r.�^�_--��,r+,uz ice _u sa. �cce:l:.w-:r...+e`..r._r. r._r. ,•. _..^.._r.q�;;;; a z✓a•ea �, .at .o. A rotary public or other officer ocntplewg t ua aerti5cam verities only the denpry of the ndvdusl who sued the doeatmi to which tits certifieme a sttadw4 and not the tnMYul e = acwsccy. or vafithy of the document State of Cairforma ) county of ) 1071, Ewa Icy appeared before me, Bede Insert Name and True of the Officer erg) Of ) who proved to me on the t>s$ra of sahsfaetory evidence to be the persona) whose name(s) Ware Subscribed to the wdtwn natrument wd acknowledged to me that he/aha they executed the same in hesAmwAhw auftxx=W capacciy =). and that by hralhwAheen srgnature(s) on the matrument the pw3o((3). or the entity upon behalf of which the peraan(s) acted. executed the eratnmient I certify under PENALTY OF PERJURY haler the laws of the Stoma of Califanus Dud the foregoing paragraph is true and corrwL WITNESS my hand and official seal. Signature Srgtastwe of Notary Public Phwe Notary Seat Above OPTIONAL. Though this section is options! camylbfing fhns wdormaborr can deter afteraton of the document or hmdttkW reattadnmennt of tho form to an unintended docunent Deac ipbon of Atmcfaed Docrmaent Tate or Type of Document Document Date. Number of Pages- Signer(a) Other Than Named Above. CgMw t (ies) Claimed by Signer(e) Signers Name: ❑ Corporate Officer — Tdk*). ❑ Partner — ❑ Lunited ❑ General ❑ Individual ❑ Attomey in Fact ❑ Tnaatee ❑ Guardian or Canaenndor n other Signer Is Representing: Signer'a Name: ❑ Corporate Officer — Tdk*): ❑ Partner — D Lmuted ❑ General ❑ Indnndusl ❑ Attomey in Fact ❑ Tnaatee ❑ Guardan of Carxteevafor ❑ Other Signet Is Repreaerbng. 02014 Nabonal NotaryAs3ocnaban • www NnbonalNoImy org • 1-800-LIS NOTARY ( 4M-87&BWT, tlam #5W7 55575 3816003428344 1 PALM SPRINGS INTERNATIONAL AIRPORT AIR SERVICE INCENTIVE PROGRAM PALM SPHINd$ INTERNATIONAL AIRPORT AIR SERVICE INCENTIVE PROGRAM EFFECTIVE MAY 2019 1. PROGRAm GOALS Air service growth and competition at Palm Springs. International Airport (PSP) are important factors that advance- the interests of the City of Palm Springs (City). Airlines incur significant costs when adding service capacity through Increased aircraft frequency to specific new and existing city markets. To assist airports in fostering growth and competition in the City's Metropolitan Statistical Area, the Federal Aviation Administration's 'Air Carrier Incentive Guide Book" recognizes the need for airports to utilize fee waivers, with parameters, to incentivize airlines. This revised PSP Air Service Incentive Program (the "Program") transitions the City's original marketing funding support -based program to an exclusively airport fee waiver program. This Program will increase public and airline Industry awareness of PSP facilities and services, and encourage and promote the expansion of commercial nonstop passenger airline service, both seasonally and year-round, to and from specific target cities. This new Program will allow any airline that provides quallfying-service, whether an incumbent or a new entrant, to receive an abatement of specific PSP airport fees for a period of no longer than one year (12 consecutive calendar months) as is allowable by the Federal Aviation Administration Guide Book on Airline Incentives. . ' : �- r -- This Palm Springs International Airport (PSP) Program is non -discriminatory: -Any airline, - whether operating or intending to operate as a tenant under Signatory or Non -Signatory Use Agreement status at* PSP, can participate"' in *this Program. As is required by the - - Federal Aviation Administration's Airport Improvement Program Grant Assurances for airport sponsors, this Program preserves economic non-discrimination and does not use -- aircraft typeit as a qualifying feature. The incenfWas In this PSP Program apse only from added scheduled airline nonstop flight frequencies to specific new Target Cities. 2, DURATION OF PROGRAM This Program is effective upon the date of approval by the City Council of the City, and will remain in effect Until cancelled by this goveming body. Any eligible airline fee waiver will be provided for a period no longer than one year (12 consecutive calendar months). Recognizing the seasonal nature of the PSP marketplace, and that airlines 'have historically fluctuated flight schedules to coincide with demand, there Is no requirement for an airline to demonstrate new aircraft flight frequency for consecutive months in order to be eligible: to participate in this Program. Each individual month containing new aircraft frequency to a target city, whether during peak season or not, will be considered a Program -eligible month if the year -over -year total destination -specific frequency equates to a net positive increase, and the airline had appropriately enrolled in this Program. A PALM SPRINGS INTERNATIONAL Al RPORT, 340o E. TAHQUITZ CANYON WAY, SUITE 1, PALM SPRINGS, CA 92262 PALM 5PR1NN INTERNATIONAL AIRPORT AIR $EFiyice INCENTIVE PROGRAK month with no net positive increase over the same month in the prior year will neither result in any incentive, nor extend the total Program duration of twelve (12) calendar months. 3. QUALIFYING REQUIREMENTS To qualify for the Program, an airline must provide added scheduled aircraft flight frequency in accordance with one of the following: New ROUTE: An air carrier's (new or Incumbent airline) scheduled flights (regardless of aircraft size) for new service between PSP and any new nonstop target city iden#ified in Table 1 below. "New" service for a particular airline to/from PSP may be service previously provided by that airline at PSP, but not within the last twelve (12) consecutive months. EXISTING ROUTES: An air carrier's (new or incumbent airline) newly scheduled flights (regardless of aircraft size) between PSP and any existing nonstop target city as identified in Table 1 below. OTHER AIRCRAFT FLIGHT FREQUENCY SCENARIos: The City will calculate incentive fee waivers after the end of each month of new activity. Incumbent and new air carriers can earn incentives. For each new air carrier providing nonstop service to a target city previously serviced by an incumbent air carrier, all of the new air carrier's aircraft frequencies to that destination are eligible for the fee waiver for a period not to exceed twelve (12) consecutive months. An incumbent air carrier's flights to existing target cities are eligible for a fee waiver" incentive If -those flights result in a: net Increase for a given month when contrasted. against the same month of the prior year, Should an Incumbent airline serve a target -- city that it did not serve during the last twelve consecutive months, then all frequencies . to that target city shall be deemed n6w service eligible for a fee waiver incentive. 4. SusmnTAL REQUIREMENTS In order to receive PSP Airport Fee Waivers, each airline must do the following for EACH respective qualifying route: • Submit written confirmation of the new or existing nonstop route to a target city that qualifies for a fee waiver, including without limitation clear identification of the schedule of additional flight frequencies. • After PSP verification of submitted documentation, execute a "Memorandum of Agreement," substantially in conformance with the "PSP Airport Air Service Incentive Agreement" attached to and incorporated In this Program as EXHIBIT ,cA PALM SPRINGS INTERNATIONAL AIRPORT, 3400 E. TAHQUITz CANYON WAY, SUITE 1. PALM SPRINGS, CA 92262 PALM SPRINGS INTERNATIONAL AIRPORT AIR SERVICE INCENTIVE PROGRAM TABLE 1 NON STOP TARGET CITIES NEw CITY EXISTING CITY SAN JOSE New YORK LAs VEGAS CHICAGO WASNIN' GTOH.D.C. DALLAS PHILADELPHIA HOUSTON ONNEAPOLIS _Diiioo{T SACRAME_NTO_ TORONTO OAKLAND VANCOUVER MONTREAL DENVER DUBLIN, IRELAND SEATTLE T (AND ANY PRE CLEARED INTERNATIONAL BOSTON CITY) _ATLANTA PORTLAND Los ANGELES NOTE: THESE CITIES ARE SUBJECT TO CHANGE AND WILL BE AMENDED AS NEEDED. 5. DEFINITIONS AND PROVISIONS For purposes of determining the specifics of each qualifying route, the following definitions shall apply. • New City: The route between PSP and another new target city that has not had nonstop scheduled service by any airline within the most immediate past twelve (12) month period. • Existing City: Service route between PSP and target city that currently has nonstop scheduled flights or has had within the last twelve (12) months. • Increased Frequency for Incumbent Air Carrier: The City will calculate the incentive for additional monthly scheduled flight(s), to/from either a new or existing target city, by using the net increase over the same month in the last year. This net increase in frequencies for that month Is eligible for the fee waiver. • Increased Frequency for New Air Carrier: All aircraft frequencies to or/from either a new or existing target city are fee waived within the timeframe not to exceed twelve (12) consecutive months. • Agreement: Any carrier availing itself of the Program will be required to execute a Memorandum of Agreement. • Fee Waiver Incentive Duration: Shall be no more than one calendar year, twelve (12) consecutive months. Fee waiver timeframe for each qualifying new frequency shall commence from the time of the first new flight frequency. The twelve (12) consecutive month period includes all months, whether there are qualifying or non - PALM SPRINGS INTERNATIONAL AIRPORT, 3400 E. TAHQUITZ CANYON WAY, SUITE i, PALM SPRINGS, CA 92262 PALM SPRINGS INTERNATIONAL AIRPORT AIR SERVICE INCENTIVE PROGRAM qualifying months or any combination thereof. PSP will reconcile quafffying flights each month. Fees Waived: PSP Airport Aircraft Landing Fee, Passenger Boarding Bridge/Apron/Hold Room Use Fees, as PSP defines and calculates those fees in accordance with the current PSP Airline Use and Lease Agreement for Signatory or Non -Signatory Airlines. Fee waiver amounts per aircraft movement could vary depending upon the formulation of each fee for a given fisca, year. The City will reconcile all fees for all participating airlines participating in the Program on a monthly basis. 6. ARDITIONAL INFORMATION This airport fee walver-based Program Is consistent with, but distinct from PSP preservation and enhancement of the City's status as a premier tourist destination. PSP intends the Program to augment airport service, promote competition among airlines that serve PSP, and expand the maximum access of the region's citizens to the global aviation system under the Federal Aviation Administration's National Plan of Integrated Airport Systems. PSP also intends that in addition to creating an incentive for airlines to expand scheduled air service at PSP, this Program will also ultimately help drive each airline's decision to maintain and continue to grow this service for the longer term. All airlines are encouraged and welcome to consider opportunities for expanded service and discuss potential applications with the airport. For more Information, please contact Palm Springs International Airport's Executive Director at (760) 318-3901. PALM SPRINGS INTERNATIONAL AIRPORT, 3400 E. TAHQUITZ CANYON WAY, SUITE #, PALM SPRINGS, CA 92262 PALM SPRINGS INTERNATIONAL AIRPORT Alfa SERVICE INCENTIVE PROGRAM EXHIBIT "A" MEMORANDUM OF AGREEMENT This Memorandum of Agreement Is entered into by and between the City of Palm Springs, a California charter city and municipal corporation (City), acting by and through its Executive Director of Aviation, and 5.) k4,- °-5�k &A, A,i (Airline) organized and existing under the laws of the State of Te,.V,@La . City and Airline intend to memorialize their agreement, under the terms of the Palm Springs International Airport Air Service Incentive Program (Program). This Memorandum of Agreement sometimes references Airline and City as the "Parties," and each of them as a "Party." RECITALS A. On ) , the City Council of the City approved this Program in the form attached to this Memorandum of Agreement and incorporated by this reference herein. B. The Parties intend that their performance under this Memorandum of Agreement, consistent with the Program, will augment and enhance Airline's service to and from Palm Springs International Airport (PSP), increase public and airline industry awareness of PSP facilities and services, and promote Airline's competition with other airlines at PSP. AGREEMENT `; n 1.0 Understanding of the Parties. _The Parties, by their signatures to this r Memorandum of Agreement, acknowledge the true and correct introductory paragraph _ and recitals above, inclusive of all definitions and attachments, incorpbrated by this reference herein, as the basis of their entry into this Memorandum of Agreement. The - Parties agree that PSP fee waiver incentives in this Program apply only to new qualifying service as outlined in the Program. The Partie's coricur that Airline's use of'savings based upon the waiver of PSP Fees shall be solely at the discretion of the Airlines. However, City encourages Airline to consider using these savings toward promoting the Airline's PSP service to support the long-term success of the route(s). 2.0 Term. The term of this Memorandum of Agreement as it relates to Airline's service commences upon City verification of Airline documentation of an increased flight frequency that arises from a new or existing nonstop route to a target city that qualifies for a fee waiver (increased Frequency). No incentive to Airline in this Program shall have a duration as to any specific Increased Frequency that exceeds twelve (1 2) consecutive months. 3.0 Termination Prior to Expiration of Term. City may terminate this Memorandum of Agreement at any time, in its entirety or as applied to an individual Increased Frequency, with or without cause, upon thirty (30) days written notice to Airline. Upon receipt of a notice of termination, Airline shall be entitled to any incentive earned PALM SE'RINOs It4TERNAT1oNAI_ AIRPORT, 3400 E. TAHQuF Z CANYON WAY, Surrs 1, PALM SPRINGS, CA M62 . PALM SPRINGS INTERNATIONAL AIRPORT AIR SERVICE INCENTIVE PROGRAM . prior to Issuance of that notice. Likewlse, Aldine may terminate this Memorandum of Agreement at anytime, in its entirety or as applied to an Individual Increased Frequency, with or without cause, upon written notice to the City. 4.0 Miscellaneous 4.1 California Lew. This Memorandum of Agreement shall be construed and interpreted, both as to validity and to performance of the Parties, in accordance with the laws of the State of California. The parties agree that legal actions concerning any dispute, claim, or matter arising out of or in relation to this Memorandum of Agreement shall be Instituted In the Superior Court of the County of Riverside, State of California, or in any other appropriate court in such county, and Airline covenants and agrees to submit to the personal jurisdiction of such court In the event of such action. 4.2 Non -Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Airline, or any successor -in -interest, in the event of any default or breach- by City or for any amount that may become due to the Airline or its successor, or for breach of any obligation of the terms of this Agreement. 4.3 Conflict of Interest. Airline acknowledges that no officer or employee of the City has or shall have any direct or Indirect financial -Viterest In this Memorandum of Agreement, nor shall Airline enter into any agreement of any kind with any such officer or employee during the term of this Memorandum of Agreement, and for one year thereafter. Airline warrants that Airline has not paid or given, and wi:i not pay or give, any third party any money or,.other consideration. in exchange for obtaining this Memorandum,..of Agreement:' �j 4.4 Covenant against Discrimination. In connection with its performance under this Memorandum of Agreement, Airline shall not discriminate against any employee.or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis" j. Airline shall ensure that employees are treated during their employment without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Memorandum of Agreement, and in executing this Memorandum of Agreement, Airline certifies that Its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis In any Airline activity, Including but not limited to the following. employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Airline Is In full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. PALM SPRINGS INTERNATIONAL AIRPORT, 3400 E. TAHQUITZ CANYON WAY, SUITE 1, PALM SPRINGS, CA 92262 PALM SPRINGS INTERNATIONAL AIRPORT AIR SERVICE INCENTIVE PROGRAM �T IN WITNESS WHEREOF, the parties have executed and entered into this -Agreement as of the date first written above. ATTEST: Anthony J)i hd&, CMC, APPROVED AS TO FORM: earn r, rney Signature (notarized) Name: Title: CITY OF PALM SPRINGS, a California charter city and municipal corporation By: _ C �vr�gai APP1 OVEDOYO YCOUWX A8g53 AIRLINE Signature (notarized) Name: /fit' AUU- ( �? 'no e• .] !L , D -&e -/��1� ,•� k f 10..�,a f!flNl�f f!!!!Rf if \!!!!}R!4l4RRs\iRRf \MR1Yf fflllf ff fl Hf \fRR}ffRf \fff}}N!!N\}}!ff Rf ff!!f} f4lN\N!!\!!!f of f ffiNNlffNf fllf tiff f►\4 State of On _ before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) istare subscribed to the within Instrument and acknowledged to me that helsheRhey executed the same In hislhe-r/their authorized' capacity(les), and that by hfslherltheir signature(s) on the instrument the person(a) or the entty upon behalf of which the person(s) acted, executed the Instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true- and correct. WITNESS my hand and official seal. Notary Signature: Notary Seal: State of 11-Z Countycif �r2� On J !�C'f�i'Yt 1J�, 2 before me, personally ap}ieared �(1 k] . t t'jQ, + who proved to rite on the basis gi satisfactory evidence to be the person(s) whose name(s) Isfare subscribed to the within Instrument and acknowledged to me that he/sheAhey executed the same In his/herAheir authorized cepacity(ies), and that by hisRterltheir signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the Instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal Notary Signature: l.-e Notary Seal: '004. CYNTHIA D. COONS Notary Public, State of Texas =�'•, ,� Comm. Expires 46-26-2423 Notary l0 11647446 PALM'SPRINGS INTERNATIONAl1AIRPORT, 3400 E. TAmQUITZ CANYON WAY, SUITE 1, PALM SPRINGS, CA 92262 t- PALM SPRINGS INTERNA110MLAIRPORTAIR SERVICE INMNTNE PROGRAM 4.5 Integrated Agreement, Amendments, Authority. This Memorandum of Agreement contains all of the agreements of the Parties regarding the Program, and supersedes all other such written agreements. No amendments or other modifications of this Memorandum .of Agreement shall be binding unless through written agreement by all Parties. Each of the persons executing this Memorandum of Agreement on behalf of one of the Parties warrants that they are duly authorized to execute this Memorandum of Agreefient, and that by their execution of this Memorandum of Agreement, the Parties are formally bound to the provisions hereof. .p0mumlyno YA 031lOMM SIGNATURES F0UOW t+Ilwa.:4 +,k�nnr,♦,4.wf.RMN..' .N, ,.{ PALM SPRINGS INTERNATIONAL AIRPORT, 3400 E. TAHaurrz CANYON WAY, SUITE 1, PALM SPRINGS, CA 92262