HomeMy Public PortalAboutDon Bailey 2-13-09Proposed MYL TTF Agreement Jan 2009BOMTHROUGH THE FENCE
AIRPORT ACCESS AGREEMENT
This AGREEMENT is entered into as of ______________ ____, 2009 (“Effective Date”) by and between
The City of McCall, an Idaho Municipal Corporation of the State of Idaho (“City”) and Airport Ventures, LLC and McCall Aviation Partners, LLC (collectively referred to as “TTF Licensee”).
RECITALS
The City is the legal owner of certain real property known as McCall Municipal Airport (“Airport”), as depicted in Exhibit “A”.
TTF Licensee is the owner of private land adjacent to
the Airport, as more particularly described in Exhibit “B” attached hereto and made a part hereof by this reference (the “Private Land”).
TTF Licensee desires to access the Airport
from the Private Land in private aircraft and commercial aircraft.
NOW, THEREFORE, in consideration of the mutual promises and upon the terms and subject to the conditions set forth
herein, the parties agree as follows:
AGREEMENT
1. Rules and Regulations. The Minimum Standards for Commercial Operations and Private Users of the McCall Municipal Airport, dated
August 12, 1999 (“Minimum Standards”) and Chapter 6 of the City Code, Title 3, Zoning Ordinance, and any other regulations and ordinances now legally in effect, or as they may be hereafter
reasonably and legally amended or adopted in the future, that are applicable to McCall Airport tenants and transients, whether civil or government, shall apply to the TTF Licensee.
2. Grant
Assurances. The TTF Licensee, per this Agreement, is subject to all present and future grant assurances and federal property conveyance obligations made between the City and the Federal
Aviation Administration (FAA). This includes, but is not limited to, safe operation and equitable compensation for use of the airport.
3. Access to Airport. The City of McCall hereby
grants to the TTF Licensee non-exclusive access to the Airport for private and commercial aircraft at the location designated in Exhibits “A” and “B” attached hereto and made a part
hereof by this reference. Any costs associated with construction and maintenance of said access point shall be paid for by the TTF Licensee. Any construction on the Private Land shall
be completed in accordance with the Minimum Standards and the applicable City Codes. Access shall not be allowed from any portion of the Private Land which is not, at that time, annexed
into the City and zoned for airport or aviation use, and which does not, at that time, have approval for the development of the Private Land (see the City Code, Title 3). Access to
the airport from any residential use is expressly prohibited. Access to the airport for any use which would
require FAA Part 139 certification is expressly prohibited.
Access is granted to the TTF Licensee for the use and development as is generally depicted in the Project Site Plan, Exhibit
“C”, attached hereto and made a part of this Agreement. Note that the Exhibit is an example of a typical layout for this type of facility; the actual configuration and design may be
different from what is currently shown and must be approved by the City before any building permit may be issued.
4. Expiration Date. The Expiration Time (fixed contract period) for
this Agreement shall be for a period of twenty (20) years from the “Effective Date”, provided, however, that the TTF Licensee is not in default of this Agreement.
Renewal Option. As
long as the TTF Licensee is not then in default of this Agreement, this Agreement may be extended by the TTF Licensee for four (4) additional terms of five (5) years each. Each extension
shall be upon the same terms and conditions as are set forth in this agreement except that the Access Fee in section 8 below may be adjusted by City Resolution which takes into account
any changes in the Project Site Plan, adjacent properties, or unforeseen financial conditions. The TFF Licensee shall provide written notice to the City of its request to extend at
least nineyy (90) days prior to the expiration of the then existing term.
Security and Gates. The TTF Licensee shall be responsible for the costs of installing and maintaining all
security measures and means of access at the access point(s) shown on Exhibits A and C, including, but not limited to, fences, gates and taxiways, in accordance with FAA and Transportation
Security Agency (TSA) requirements, as they may be amended from time to time, and to prevent inadvertent access to the Airport property at any time.
Conditions and Restrictions. The TTF Licensee’s rights hereunder to access the Airport shall be subject to the following conditions:
TTF Licensee
shall comply with all applicable present and future:
rules, regulations, and other requirements of the FAA and TSA or any successor agencies; and
laws of the State of Idaho and of
the United States of America, including without limitation, statutes, rules, regulations, ordinances and codes; and
County and City laws, rules, regulations, ordinances, and codes.
All
plans, designs and specifications for security measures and means of access, shall be subject to TSA prior review and approval, as may be required by the TSA from time to time;
The
TTF Licensee shall be responsible for assuring that traffic and activities relating to access and security construction do not interfere with the normal day-to-day operations of the
Airport, do not create a safety hazard, and do not result in unreasonable “wear and tear” on improved areas of the Airport, as defined in the Minimum Standards.
All of the Private Land
must be located within the City limits and must be zoned as Airport (AP); see City Code, Title 3, Chapter 6.
All of the Private Land which may be required for the proposed relocation
of the parallel
taxiway and/or future expansion of the runway or taxiways as defined in the 2007 McCall Municipal Airport Master Plan Update must be reserved and dedicated for this use. As land for
this purpose may be purchased by the City, the Access Fee defined below will be adjusted accordingly.
The access points as shown on Exhibit C to the taxiway may be required to be changed
in the future; any cost for doing so will be at the expense of the TTF Licensee.
The City may at any time inspect the TTF property and improvements as may be required to assure compliance
with this Agreement.
Access Fee. Upon execution of this agreement, TTF Licensee shall pay to City the sum of $5,000 as and for the first year access fee. The access fee for the second
year will be $15,000. Thereafter, the fee will be calculated by applying the following rates:
Land: $0.02/sq. ft. x 1,029,395 sq. ft. $ 20,588
Buildings: $0.15/ sq. ft. x 154,000
sq. ft. $ 23,100
said fee to be adjusted by inflation (as set forth below) each October 1st beginning October 1, 2009. The $0.15 per square foot (building footprint) charge for buildings
shall be applicable upon the issuance of a City Building Permit for each building. Said fees shall be payable on an annual basis in advance on October 1st. Each year the annual access
fee will be adjusted by the change in the CPI-West Urban (base year 1982-84). Note that the square footage amounts shown were derived from the TTF Project Site Plan, Exhibit C, data.
The amounts will be adjusted to actual values as the project is completed in various phases over time; for example, the actual net Private Land area may be greater than shown as the
need for additional land for a new taxiway may be less than the 200 additional feet shown on the Project Site Plan Exhibit C.
Note: “Year” in this context means the fiscal year of
the City, beginning October 1 and ending September 30.
Additional Fee Collection. The TTF Licensee shall also collect and remit to City, by the fifthteenth (15th) of each month, all
applicable landing fees, fuel flowage fees, aircraft parking fees, and other concession fees as may be applicable by regulation, rule, or ordinance, including but not limited to car
rent fees, catering fees, ground vehicle parking fees, and other percentage of gross sales fees paid by on-airport operators in the previous month. Any FBO granted access by this agreement
shall meet all the requirements required of on-airport FBO’s. All such additional Fees shall be at parity with any existing on-airport FBO; in addition, any TTF FBO, in order to come
onto the Airport to service on-airport tenants, must meet all of the requirements the on-airport FBO is required to meet.
Late Charges. Any Access Fee not paid within 30 days of the
due date shall be deemed late and, in addition to the Access Fee due, TTF Licensee agrees to pay (i) a late charge equal to 18% of the Access Fee then due, and (ii) interest on the Access
Fee at the rate of 18% per annum, and accrued monthly until paid in full. Any fee, which is due and unpaid at the expiration, termination, or cancellation of this Agreement, shall continue
to be an obligation of TTF Licensee notwithstanding such termination or cancellation.
Commercial Activities. All commercial activities within the Private Land will conform to City
of McCall and FAA Minimum Standards, Rules and Regulations, and ordinances now in effect, or as they may be reasonably and legally amended or adopted in the future. Any commercial activity
on the Private Land, or accessing the Airport from the Private Land, shall be subject to all normal and applicable City approval, permits, or license requirements for such activity.
Commercial activity in this case excludes commercial passenger service which requires FAA Part 139 certification.
Insurance. At all times during the term of this Agreement, including
any extensions thereof, TTF Licensee shall procure and maintain insurance against the hazards and liability in the amounts hereinafter set forth and shall provide the City with a certificate
of such insurance naming the City as an additional insured:
All Risk Insurance in Connection with Construction. Before commencement of any construction or demolition on or related
to the access granted hereunder the TTF Licensee shall procure and shall maintain in force until the completion of the work “All Risk” insurance in a form reasonably satisfactory to
City, covering all risks of physical loss or damage to any property in an amount of not less than $1,000,000.
Public Liability Insurance. Comprehensive broad form general public liability
and aviation liability insurance covering loss or damage resulting from accidents or occurrences on or about or in connection with the access granted hereunder or the TTF Licensee’s
use of the Airport, with personal injury, death and property damage combined single limit liability of not less than $5,000,000 for each accident or occurrence for commercial operators,
should commercial operations permit be allowed, and $1,000,000 for private hangar owners.
13. General Indemnification. The TTF Licensee hereby indemnifies and holds the City, its elected
officials, and employees harmless from and against all liability for injuries to persons or damage to property caused wholly or in part by use of the access granted hereunder.
Assignment.
This Agreement shall, except as otherwise provided herein, be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Neither this Agreement nor
any right granted hereunder shall be assignable or otherwise transferable in whole or in part without the prior written consent of the City, which consent shall not be unreasonably withheld,
conditioned or delayed, in which case a new Agreement must be negotiated and approved by the City and the FAA.
Non-responsibility of City for Airport Closures. The City shall not be
responsible for airport closures or the inability to operate specific aircraft at any time.
Default. In the event the TTF Licensee, its successors, assigns or subsequent owners of
the Private Land or any other person acquiring an interest in the Private Land, fails to faithfully and materially comply with all of the terms and conditions included in this agreement,
such failure to comply will be deemed a default hereunder. In that event, City shall have the following options:
This agreement and the commitments contained herein may be terminated
if the City provides written notice of the TTF Licensee’s default and the TTF Licensee fails to cure such default within thirty (30) days, subject to extension as provided below, after
mailing or delivery of said notice.
Enforcement of this agreement may be sought in an action at law or in equity in the Valley County, Idaho, District Court.
A waiver by the City of
any default by the TTF Licensee of any one or more of the covenants
or conditions hereof shall apply solely to the breach waived and shall not bar any other rights or remedies of the City or apply to any subsequent breach of any covenants or conditions.
Notwithstanding anything to the contrary herein, in the event of a material default of the agreement, the parties agree that the City and/or the TTF Licensee shall have thirty (30)
days after delivery of notice of such default to correct the same prior to the non-defaulting party’s seeking of any remedy provided for herein; provided, however, that in the case of
any such default which cannot with diligence be cured within such thirty (30) day period, if the defaulting party shall commence curing the same within the thirty (30) day period and
prosecute the curing of same with diligence and continuity, then the time within which such default may be cured shall be extended for such period as may be necessary to complete the
curing of the same, but in any event not to exceed (6) months; and provided further, however, no default by a subsequent owner of a portion of the property shall constitute a default
by the TTF Licensee for the portion of the property still owned by the TTF Licensee.
In the event the performance of any obligation to be performed hereunder by any party hereto is
delayed for causes that are beyond the reasonable control of the party responsible for such performance, which shall include, with limitation, acts of civil disobedience, strikes or
similar causes, the time for such performance shall be extended by the amount of time of such delay.
Should the TTF Licensee fail to abide with the provisions of this Agreement, then
this Agreement shall be held in default and subject to termination, and access to the City Airport shall be denied, and all current TTF fees shall become a lien on the real property
of the TTF land and improvements under this Agreement.
In the event the City or any of its successors, assigns or subsequent owners of the Airport or any other person acquiring an interest
in the Airport, fails to faithfully and materially comply with all of the terms and conditions included in this agreement, such failure to comply will be deemed a default hereunder.
In the event of such default, if not cured within thirty (30) days of written notice of default, the TTF Licensee may terminate this agreement or pursue all other rights and remedies
available at law or in equity.
The City shall have the express right to amend or terminate the Access Agreement to ensure continued compliance with all grant assurances and federal property
conveyance obligations.
General Provisions. The parties hereto agree to the following general provisions:
Further Documentation. The parties hereto agree to execute any and all documents
advisable and/or necessary to effectuate the terms and intent of this Agreement.
Binding. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and assigns.
Invalidity of Provisions. If any provision of this Agreement as applied to either party or to any circumstance shall be adjudged by a court to be void and unenforceable,
the same shall in no way affect any other provision of this Agreement, the application of such provision in any other circumstances, or the validity or enforceability of the Agreement
as a whole.
Modification. This Agreement shall not be modified by either party by oral representation made before or after the execution of this Agreement. All modifications must
be in writing and signed by the parties.
Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original Agreement, and all of which shall constitute one Agreement as of the
Effective Date
Time of Essence. Time is of the essence for the performance of each and every covenant and the satisfaction contained in this Agreement.
Attorney’s Fees. In the event
any action is brought to enforce or interpret any of the terms and provisions of this Agreement, the “prevailing party” in such action shall be entitled to recover, as an element of
costs of suit and not as damages, reasonable costs and expenses, including but not limited to taxable costs and a reasonable attorney’s fee. The “prevailing party” shall be the party
entitled to recover his costs of the suit, regardless of whether such suit proceeds to final judgment. A party not entitled to recover his costs shall not be entitled to recover attorney’s
fees. No sum for attorneys’ fees shall be counted in calculating the amount of a judgment for the purposes of determining if a party is entitled to recover costs or attorneys’ fees.
Construction.
This Agreement shall not be construed against the party preparing it, but shall be construed as if all parties prepared this Agreement, and in accordance with the laws of the State
of Idaho. Jurisdiction shall be Valley County, Idaho.
Miscellaneous. All negotiations are merged into this Agreement. This Agreement constitutes the entire understanding of the parties
concerning the subject of this Agreement. This Agreement shall constitute a binding obligation between the parties and shall be applicable beyond the term of this Agreement.
Costs
and Expenses. Each of the parties shall pay all cost and expenses incurred or to be incurred by it in negotiating and preparing this Agreement and in closing and carrying out the transactions
contemplated by this Agreement.
Headings. The headings of the paragraphs and subparagraphs of this Agreement are included for purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
Gender. Any reference to he, she, or it shall not be binding as to gender, but shall be construed and interpreted to mean he,
she, or it as appropriate in connection with the correct gender.`
Incorporation of Recitals. The Recitals are hereby incorporated in this Agreement by this reference.
Authority to
Execute. The individuals executing this Agreement on behalf of a corporation, partnership, trust, or other entity, hereby represent and warrant that they are duly authorized to do so
on behalf of such entity, and that all corporate, partnership, trust or other entity requirements have been fully complied with including such resolutions, voting, or agreements as may
be required to enter into this Agreement and to make this Agreement a binding obligation of such entity.
Facsimile Copies. Facsimile executed copies of this Agreement shall be deemed
an original
copy. Any party may rely upon the facsimile copy of the original executed Agreement, which may be executed in counterparts. The parties agree to exchange fully executed original copies
by mail within five (5) days after signing, provided that said exchange or the failure to exchange originals shall in no way be construed as voiding or negating use of the facsimile
copies as originals.
Notices. All notices permitted or required under this Agreement shall be deemed given upon (i) personal delivery (ii) actual receipt of notice by the party to
whom such notice was directed, or (iii) forty eight (48) hours after having been deposited in the United States mail, certified, postage prepaid, with a second copy sent by regular first
class mail and addressed to the appropriate party, at the address provided below or such other address as may hereafter be given by one party to the other party.
In Witness Whereof,
the Parties have executed this Agreement as of date first above written.
CITY:
The City of McCall, Valley County, Idaho
By: _____________________________ Mailing Address:
City
of McCall
Date: ____________________________ 216 East Park Street
McCall, ID 83638
TTF LICENSEE:
Airport Ventures, LLC
By: _____________________________ Mailing Address:
Airport
Ventures, LLC
Date: ____________________________ 101 Capitol Boulevard, Suite 305
Boise, Idaho 83702
McCall Aviation Partners, LLC
By: _____________________________ Mailing Address:
McCall
aviation Partners, LLC
Date: ___________________________ PO Box 1028
Riverside, CA 92502
Exhibits:
A. City Airport Layout Plan, Sheets 1 and 2
B. TTF Property, Sheets 1 and 2
C. TTF Project Site Plan
EXHIBIT A
EXHIBIT A
(Enlarged view)
EXHIBIT B
EXHIBIT B
Note: The conceptual layout for a future passenger terminal would be located on City owned property and is not a part of this TTF Agreement.
EXHIBIT C