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HomeMy WebLinkAbout1994-069 Agrmt - Eagle FlyersSPECIAL PURPOSE FIXED BASE OPERATOR AGREEMENT FOR THE ASHLAND MUNICIPAL AIRPORT CITY OF ASHLAND, (CITY) 20 E. Main St, Ashland, Oregon 97520 (503) 482-3211 FAX: (503) 488-5311 Date of this agreement: ¶ 2. Term of lease: One year ¶ 2. Commencement date: Aug. 1, 1994 ¶ 4. Purpose: Category G. Aircraft, Engine, Propeller and Accessory Maintenance as described in the minimum standards. ¶ 9. Payment: $27 per month OPERATOR: Eagle Flyers, Inc. Address: P.O. Box 3152 Ashland, OR 97520 Telephone: (503) 482-5657 Recital B. Requirements waived: Paragraphs 1, 3 and 4 of Section II of the minimum standards. ¶1. Description of premises: 407 Dead Indian Memorial Hwy. Hangar # T-2 Ashland, OR 97520 Special Purpose Fixed Base Operator Agreement made on the date specified above by the CITY OF ASHLAND ("City") and the person named above as OPERATOR. RECITALS: A. Operator desires to become a fixed base operator in order to conduct a service at the Ashland Municipal Airport ("Airport"). B. Section 2 of Category D of the "Minimum Standards at Ashland Municipal Airport, Ashland, Oregon" adopted by the City Council on January 4, 1990, as amended, (further referred to in this agreement as "the minimum standards") require that a fixed base operator: "Lease from the City sufficient land on which to locate all required improvements, including aircraft tie downs and automobile parking, and provide (for the convenience of passengers) a waiting area, rest rooms, public telephone, etc. in a building or in space rented from the City." Because no land is currently available for additional fixed base operators, City is unable to lease property to Operator for Operator's service. City has the power to waive this standard when such waiver is in its best interest and the waiver would not be discriminatory to those operations at the Airport. City finds that waiving this standard is in its best interest and that the waiver is not discriminatory to operations at the Airport and by entering into this agreement makes such waiver. In addition, the minimum goods, services and facilities specified above, and otherwise Page 1-AIRPORT LEASE-FBO {p:airport\harring.lse)(July 21, 1994) required by Section II of the minimum standards, are waived. O. Oity and Operator desire, however, that Operator establish the service at this time with the understanding Operator will lease property and provide all facilities required by the minimum standards when such property is made available by the City. 1. Description of leased premises. City shall lease to Operator as a Fixed Base Operator a part of the Ashland Municipal Airport, an area ("the premises"), when available at some point in the future, along with ingress and egress to the premises. The description and rent for the premises shall be as mutually agreed upon by the City and Operator when the City, in its sole discretion, determines an area is available for lease. If the City and Operator are unable to agree as to the description and rent within 60 days of the date City notifies Operator that an area is available, then this agreement shall automatically terminate on the sixtieth day following such notice. 1.1. Lease agreement. If an agreement is reached within such 60 day period, then at such time the parties shall enter into a new lease agreement incorporating the description and rent and the terms of this agreement and the terms specified on the attached Exhibit A. This agreement shall terminate upon the execution of the lease described above. 1.2. Airport available to others. The balance of the Airport is used for general aviation aeronautical activities, and is available on an equal basis to qualified persons, firms and corporations who qualify as "Fixed Base Operators", or "Specialty Operators" at the Airport and under separate leases. 2. Term. The term of this agreement is for the number of years specified above, commencing at 12:01 A.M. on this date. It is agreed that the parties will, prior to the expiration of this agreement, discuss an extension of this agreement or renewal for an additional five years if the parties can agree upon the terms and conditions for the additional five-year period. If the parties are not able to agree upon an extension no later than 120 days before the expiration of the original term period, then the agreement shall terminate as stated above and at the end of the original five years. 3. Purpose. The Operator shall provide a service at the Airport solely for the uses and purposes of conducting the business of a fixed base operator as further specified above. 3.1. Compliance with minimum standards. Except as waived in Recital B above, Operator shall comply with the minimum standards as they now exist or as they may be changed in the future. 3.2. Noise Impact. Due consideration for the noise impact on the community surrounding the Airport will be given by the Operator in the selection of aircraft and related activities, all in accord with the laws, rules and regulations and ordinances of the City of Ashland as they now exist or as they may be changed in the future. Page 2-AIRPORT LEASE-FBO {p:arpor~\harrino.~.e)(Uuly 21, 1994) 3.3. Conflicting Standards. In the event the above standards conflict with the provisions of the City or other applicable local, state or Federal regulatory agency, the most restrictive standard shall be applied. 4. Facilities Development. The City has the right to further develop and improve the Airport, its property, improvements and future facilities, including hangar construction as the City deems appropriate to the public interest and shall have no responsibility to the Operator for any loss of revenue which might be caused by such development or improvement. 5. Public Benefit. The Operator agrees to conduct its business for the use and benefit of the public and to make available to the public on fair and reasonable terms all of its services at reasonable prices so as to result in a reasonable profit to the Operator. 6. FAA Exclusive Rights Prohibition. Nothing contained in this agreement shall be construed to grant or authorize the granting of exclusive rights within the meaning of Section 308(a) of the Federal Aviation Act of 1958 as amended. 7. Insurance. Operator shall obtain and maintain continuously in effect at all times during the term of this agreement, at Operator's sole expense, the following insurance: 7.1. Comprehensive insurance. Comprehensive general liability insurance protecting City and its officers, agents and employees against any and all liabilities that may allegedly in any way relate to the operation by Operator, this insurance to be in the minimum amount of $500,000, combined single limit coverage. Such limit shall automatically increase in the event of any change in the provisions of ORS 30.270, or in the event these limits are found to be not totally applicable to a city. 7.2. Additional insureds. All policies shall include the City, its officers, commissions, elected officials, employees and agents as additional insureds. 7.3. Primary insurance. The insurance shall be considered primary to any other insurance or self-insurance of the City. 7.4. Insurance certificate. A certificate evidencing such insurance coverage shall be filed with the City prior to the effective date of this agreement, and such certificate shall provide that such insurance coverage may not be canceled or reduced or changed in any way adverse to the City without at least 30 days prior written notice to the City. The policy shall be continuous until canceled as stated above. If such insurance coverage is canceled or changed, Operator shall, not later than 15 days prior to the termination or change in the insurance coverage, file with the City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. In the event Operator shall fail to furnish the City with the certificate of insurance required, City may secure the required insurance or self-insure at the sole cost and expense of Operator, and Operator agrees to reimburse City promptly for the cost, plus ten percent of the cost for City administration. Page 3-AIRPORT LEASE-FBO (.:airport\harring.lse)(Uuly 21, 1994) 8. Indemnification. Operator shall keep, indemnify and defend and hold harmless City, its officers, agents and employees, from and against any and all claims, demands, suits, judgments, costs, and expenses, including attorney's fees asserted by any person or persons, including agents or employees of the City or Operator, by reason of death or injury to persons or loss or damage to property that allegedly results from Operator's operations, or anything done or permitted by Operator under this agreement, except for the extent attributed to acts or omissions of City of its officers, agents or employees. 9. Payment by Operator. Operator agrees to pay to the City during the term of this agreement, the sums and amounts listed above. Operator agrees to pay all sums due without notice by check payable to the City of Ashland, delivered or mailed to the Finance Department, City Hall, 20 East Main Street, Ashland, Oregon 97520. A delinquency charge of 1.5% per month shall be added to payments required by this agreement which are more than ten days delinquent. 10. Compliance with laws. The Operator shall comply with all State and Federal rules, including but not limited to, the effluent standards or prohibitions established under Section 307(a) of the Clean Water Act for Toxic Pollutants. 11. Federal preeminence. All rights, privileges and liabilities imposed by this agreement are subject and subordinate to any conditions, restrictions, limitations, rules, regulations or future requirements for modification of this agreement, by any agreement or contract pertaining to the Airport between the United States Government or any other department or agency of either the United States Government or the State of Oregon. 12. Minority Business Plan. The Operator agrees to the terms and conditions of the City's adopted Minority Business Plan currently in effect with the FAA and to be amended from time to time as required by the FAA. 13. Termination. This agreement shall be terminated upon execution of a lease by the parties as provided in paragraph 1 and may be terminated upon proper notice 90 days in advance of such termination date, and upon the following conditions: 13.1. Termination by Operator. This agreement shall be subject to termination by Operator in the event of any one or more of the following events: 13.1.1. The abandonment of the Airport as an airport or airfield by the City. 13.1.2. The default by the City in the performance of any of the terms, covenants or conditions of this agreement, and for the failure to continue for a period of 30 days after receipt of notice from Operator concerning the default, provided that if the remedy takes longer than 30 days, then the term of notice shall be so extended. 13.1.3. Damage to or destruction of all or a material portions of the Airport, and which are necessary for the operation of Operator's business, and election by City not to replace such improvements within six months after destruction. Page 4-AIRPORT LEASE-FBO (p:airport~harrino.~=o)(July 21, 1994) 13.1.4. The lawful assumption by the United States, or any authorized agent of the operation, control, or use of the Airport, or any substantial part or parts, in such a manner as to substantially restrict Operator from conducting business operations for a period in excess of 90 days. 13.2. Termination by City. This agreement shall be subject to termination by City in the event of any one or more of the following events: 13.2.1. Failure to pay the basic or percentage fee or failure to pay any money due to the City as set forth in this agreement. 13.2.2. The default by Operator in the performance of any of the terms, covenants or conditions of this agreement, and the failure of Operator to remedy or undertake to remedy, to City's satisfaction, such default for a period of 30 days after receipt of notice from City to remedy the same. 13.2.3. The filing of a voluntary petition in bankruptcy, including a reorganization plan, or filing in Chapter 11 of the Bankruptcy ACt, and general or other assignment for the benefit of creditors, or as adjudicated as bankrupt or if a receiver is appointed for the property or affairs of Operator. 13.2.4. The failure to conduct the business or to perform any duty as required in section 5. 14. Affirmative Action Program. The Operator assures that it will undertake an affirmative action program as required by 14 CFR Part 152, sub-part E, to insure that no person shall, on the grounds of race, creed, color, age, national origin or sex, be excluded from participating in any employment activities covered in 14 CFR, Part 152, sub-part E. The Operator assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by the sub-part. The Operator assures that it will require that its covered sub-organizations will provide assurances to the City that they similarly will undertake affirmative action programs and that they will require assurances from their sub-organizations as required by 14 CFR, Part 152, sub-part E to the same effect. 15. Public Facilities. The Operator shall also have a non-exclusive right to use, in common with others, all public airport facilities and improvements of a public nature which are now, or may in the future be connected with, appurtenant to, landing, taxiing, parking areas, and other public use facilities. 16. Closing Airport. The City may choose to do construction work or maintenance work on portions of the Airport and accordingly the City may, when masonably necessary, close the Airport so that the Operator will be required to temporarily suspend activities, and will not have ingress and egress to its operation. Page 5-AIRPORT LEASE-FBO {p:airport\harring.lse)(July 21, 1994) BY Title CITY OF ASHLAND City Recorder ~ State of Oregon County of Jackson On this 21st day of July, 1994, before me personally appeared David L. Harrington and satisfactorily proved to me to be the signer of the above instrument. ,,z~.~ OFFICIAL SEAL NANCY E q O'"' t,,..-i,,,~v .... , ',.t-'~ ,..,,,, ~ M~L~.,,, ,,,~ ,..~,,,: ..... ~' ',:'SL? ~tJ Notary Pub,Y~i c Page 6-AIRPORT LEASE-FBO ~p:.irport\h..ino.~.el(July 21, 1994) EXHIBIT A ADDITIONAL TERMS TO BE INCORPORATED INTO FUTURE LEASE 1. Lighting. The Operator shall install lighting fixtures on the premises necessary to its operation and to protect the safety of guests, patrons, and employees. Lighting fixtures shall conform to the guidelines for lighting fixtures. The City shall review and approve lighting fixtures, location, intensity and illuminating effects of the light fixture(s) to ensure that it presents no hazard to Airport operations. 2. Graphics and Signs. All graphics and signs on the premises shall be consistent with the objectives and conform to the regulations for graphics and signs as contained in the rules, regulations, and ordinances of the City of Ashland as they now exist or may be amended in the future, and as accepted by FAA requirements. 3. Additional responsibilities of Operator. Operator further agrees to: 3.1. Keep the premises in a neat and orderly manner, free of offensive or dangerous materials or conditions. 3.2. Pay all utility costs. 3.3. Not sublease all or any portion of the premises. 3.4. Not fuel aircraft or store fuel on the premises. 3.5. Make an irrevocable election (binding on the Operator and all successors in interest under this agreement) not to claim depreciation or investment credit with respect to any property financed with tax-exempt obligations of the City (including all property used by the Operator under this Agreement); (2) the Operator certifies to the City that the term (as defined in 168(i)(3) of the Code) is not more than 80 percent of the expected economic life of the property used by the Operator under this Agreement (as determined in Section 147(b) of the Code); and (3) the Operator acknowledges that it has no option to purchase any such property. 3.6. Certify that it will not use any part of the hangars financed with proceeds of any tax-exempt obligations issued by the City for office space, except for office space that is de minimis in size and cost and that is directly related to its day-to-day operations at the Airport as required by Section 142(b)(2) of the Code. 3.7. Not use or permit the use of the premises as any lodging facility, any retail facility (including food and beverage facilities) in excess of a size necessary to serve passengers and employees at the Airport, as any retail facility (other than parking) for passengers or the general public located outside the terminal, as an office building for individuals who are not employees of the City, or as any industrial park or manufacturing facility. No part of the premises financed with any portion of the proceeds of any tax-exempt obligations issued by the City shall be used to provide any airplane, skybox 7 of 2-EXHIBIT A ~i~ ,~-/-/~ or other private luxury box, health club facility, a facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off-premises as prescribed by Section 147(e) of the Code. 4. Removal of Property. 4.1. Subject to paragraph 4.2 below, upon termination of this agreement, Operator, at its sole expense, shall remove from the premises temporary structures, signs, trade fixtures, furnishings, personal property, equipment and materials owned by Operator and which Operator was permitted to install or maintain under the rights granted under this agreement. If Operator shall fail to do so within ten days, City may, at its option, effect such removal or restoration at Operator's expense, and Operator agrees to pay City such expense promptly upon receipt of a proper invoice. Any improvements not removed by Operator pursuant to this paragraph shall become the property of City without any right of Operator to compensation or reimbursement, except as provided in paragraph 4.2 below. 4.2. At any time three months prior to the termination date, City shall have the option to purchase, on such termination date, all permanent improvements on the premises at an agreed price. If no agreement can be reached, the purchase price shall be the fair market value to be determined by agreement of two MAI appraisers, one chosen by each party. If the two appraisers cannot agree upon a fair market value, they shall choose a third MAI appraiser. The determination of fair market value by a majority of the three appraisers shall be final and binding upon the parties, provided, City may elect not to purchase such improvements. All fees of arbitration shall be paid by the party appointing such arbitrator. All other fees and expenses of the arbitration shall be shared equally by the parties. 8 of 2-EXHIBIT A NEW BU~[NE~ Aviation Minimum Standards: PW Directors Modifications The modifications presented were based on Grants Pass' standards. We need to add a new definition "Operator" and Category N. Hall noted that this was a first draft, and he expects more work to be done on the proposal. Need more work defining temporary operations. Hall reviewed remainder of proposal. Insley reported Smith was concerned about issues, and asked Mills and Smith to work with Hall. Mills needs some sort of consensus. Yeamans suggested that the concept was that the temporary operator was occasional. Insley stated because of hopes for future development we need to be careful setting any new standards. Hall recommended it not be made too weak. Mills recommended it not be too restrictive. Katzen doesn't want loop holes. Mace suggested defining temporary operator by how many days worked in a month, with a maximum number of days in a year. If exceeded then operator is no longer occasional, temporary or itinerant. DeBoer recommended eliminating crop dusting (refilling). USFS does their seeding from our airport on oQcasion, and consensus was not to restrict their activities. Golden recommended eliminating crop dusting for "commercial purposes. Yeamans wondered if outside flight instructors would be affected. It was considered that this would not. Hall asked to add Skinner to the subcommittee. Harrinqton: Waiver of Minimum Standards Dave Harrington's request for a waiver of some of the minimum FBO Standards for a maintenance and repair operation was presented and discussed. Commission requested Harrington work out a lease with staff, and submit it to Airport Commission. Mace moved that Airport Commission waive appropriate categories 1,3, and 4, and negotiate fee and ground lease, and include a requirement to construct a hangar "within a reasonable time". The agreement is to be valid for one year. Yeamans seconded the motion, and it passed unanimously with DeBoer abstaining due to a declared_ conflict of interest~ (Commissioner Katzen departed: 1:47.) Pilot's Association Report Mace reported that John Yeamans is now President of the Airport Pilot's Association. Airport Appreciation Day 1994 was set for May 22. Airport Manaqer/FBO ReDort Skinner reported that heat was started [Jan. 4] in the maintenance hangar. Beginning [Jan. 5] the entire airport will be serviced to connect to natural gas. skinner reported on business activities.