No person engaged in aeronautical activities on the airpark may access the airport from any portion of the airpark, unless: a) a valid and current airport access agreement is entered into between the city and the owner of airpark property upon which the person conducts such activities; b) all access fees due and owing pursuant to the airport access agreement are current and paid in full, and the agreement is not otherwise in breach; c) the owner of the airpark property, and the owner's tenants, licensees, heirs and assigns are in compliance with all applicable requirements of the airport access agreement and this title; d) the person obtains and maintains a valid commercial aeronautical activities permit for any commercial aeronautical activity engaged in by the person that benefits from, relies upon, or utilizes airport/airpark access. An airport access agreement shall be subject to the following:
A. Access Fee: An airport access agreement shall require the airpark property owner to pay an airport access fee in an amount determined by the city. The access fee shall be no less than an amount which in the sole discretion of the city, upon consultation with the FAA, is determined to be sufficient to prevent economic discrimination to on airport aeronautical businesses and to make the airport as self-sustaining as possible under the circumstances.
1. The amount of the airport access fee may be tied to or be dependent upon one or more on airport fees, and thus may fluctuate in proportion to changes in airport fees.
2. If during the term of the airport access agreement, a new fee is imposed by city ordinance applicable to any commercial aeronautical activity upon the airport, the person who entered into the airport access agreement shall be required to pay the same fee for similar activities carried on upon airpark property, which shall constitute an additional airport access fee.
3. An airport access fee shall not be imposed for that portion of airpark property that is not developed in support of aeronautical activities, nor shall an airport access fee be imposed for undeveloped airpark property or airpark property developed for nonaeronautical uses, or for use as roadways, walkways, or green space. An airport access fee shall apply to any automobile parking used in support of aeronautical activities.
B. Term: An airport access agreement shall have a fixed term not to exceed twenty (20) years, and shall be renewed for an additional ten (10) year renewal term unless either party to the agreement gives written notice prior to the end of term of its intent not to renew. However, the airport access fee amount provided for in the agreement, including any formula from which the airport access fee is derived, shall be subject to revision and amendment by the city every ten (10) years during the term of the agreement.
C. Restrictive Covenants: An airpark property owner entering into an airport access agreement may be required to record restrictive covenants against the title of the property imposing essential elements and requirements for airport/airpark access consistent with the airport access agreement and this title to ensure that subsequent interest holders in the property, including tenants, are bound by and have record notice of the airport access agreement and the airport/airpark access requirements of this title.
D. Tenants: A tenant of an airpark property owner shall not be required to pay an additional airport access fee for airport/airpark access, provided the property owner has paid such airport access fee pursuant to an airport access agreement. Although an owner may contractually obligate a tenant to pay airport access fees due and owing on the owner's behalf, the owner shall remain primarily liable to the city for payment of all airport access fees.
E. Grant Assurances: An airport access agreement shall be subordinate and subject to any and all past and future grant assurances accepted by the city under the federal airport improvement program or similar grant program.
F. Assignment: An airport access agreement shall not be assigned without the prior written approval of the city.
G. Off Airpark Access: An airport access agreement shall not grant or permit airport access to off airpark property via the airpark.
H. Mandatory Provisions: An airport access agreement shall be subject to and shall contain the following provisions, or similar substitute provisions approved by the city attorney:
1. The agreement shall be subordinate to the provisions of any existing or future agreement between the city and the United States, 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 expenditures of federal funds for the development of the airport.
2. The airpark property owner shall protect, defend and hold the city and its officials, employees, agents and volunteers completely harmless from and against any and all liabilities, losses, suits, claims, judgments, fines or demands arising by reason of injury or death of any person or damage to any property, including all reasonable costs for investigation and defense thereof (including, but not limited to, attorney fees, court costs and expert fees), of any nature whatsoever arising out of or incident to this agreement and/or the use or occupancy of the owner's property or the acts or omissions of city's officers, agents, employees, contractors, subcontractors, licensees or invitees, regardless of where the injury, death or damage may occur, unless such injury, death or damage is caused by the sole negligence of the city. The city shall give the owner reasonable notice of any such claims or actions. The owner shall also use counsel reasonably acceptable to city in carrying out its obligations hereunder. The provisions of this subsection shall survive the expiration or early termination of this agreement. In carrying out any of the provisions herein, or in exercising any power or authority granted to owner, there shall be no liability upon any official of the city, its authorized assistants, consultants or employees, either personally or as officials of the city, it being understood that in such matters they act as agents and representatives of Ogden City Corporation. It is further understood and agreed that the city assumes no responsibility for any damages or losses that may occur to the owner's property, except the obligation that the city will not wilfully, intentionally or negligently damage the property of the owner.
3. The owner agrees to comply with provisions of this title, and as it may hereafter be amended, and with implementing administrative orders as they may hereafter be adopted or amended. The owner further agrees that more than three (3) violations of this title during any three (3) month period by owner or tenants, and their agents or employees; or any other pattern of violations that manifests reckless disregard for the health, safety and general welfare of the public and/or airport users shall be a material breach which may terminate the agreement at the option of the city. The city shall not exercise this option until it has notified the owner and given the owner a reasonable opportunity to retrain employees, notify tenants or otherwise demonstrate that owner and tenants, and their employees and agents can and will conform to this title. In addition to the above penalties, this agreement may be canceled by the city if the owner fails to pay, when due, the whole or any part of the amounts agreed upon for fees and charges and such default continues for thirty (30) days after the city has demanded payment in writing.
4. It is understood and agreed that the owner is an independent contractor and not an agent or employee of the city, and the city is an independent contractor and not an agent or employee of the owner with regard to its acts or omissions hereunder.
5. The city or a designated representative may enter the owner's facility or property on the airpark at reasonable times and for reasonable purposes without prior notice.
6. There is hereby reserved to the city, its successors and assigns, for the use and benefit of the public a right of flight for the passage of aircraft in the airspace above the surface of the owner's property subject to this agreement, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, not known or hereafter used for navigation of or flight in the air, using said airspace or landing at, taking off from or operating on the airport.
7. The owner expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object nor permit the growth of any tree on the owner's property subject to this agreement exceeding the obstacle identification surfaces as specified by FAR part 77. In the event the aforesaid covenant is breached, the city reserves the right to enter upon the land leased hereunder and to remove the offending structure or object and cut the offending tree, all of which shall be at the expense of the owner.
8. To the extent owner or its tenant operates any commercial aeronautical activities on airpark property, the owner agrees to operate the property for the use and benefit of the public and to furnish such activities and services on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge fair, reasonable and not unjustly discriminatory prices for each unit or service; provided, however, that the owner may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar types of price reductions to volume purchasers.
9. The owner, for himself, his heirs, 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 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 program or activity is extended, or for any other purpose involving the provision of a similar service or benefit, the owner shall maintain and operate such facilities and services in compliance with all other requirements imposed 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 and any provisions of said regulations as may in the future be amended.
10. The owner, for himself, his 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 no person on the grounds of sex, race, color, creed, national origin or disability shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of said facilities, that in the construction of any improvements on, over or under such land and the furnishings of services thereof, no person on the grounds of sex, race, color, creed, national origin or disability shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination; that the owner 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, and such provisions of said regulations as may in the future be amended.
11. That in the event of a breach of any of the nondiscrimination covenants pursuant to part 21 of the regulations of the office of the secretary of transportation, the city shall have the right to terminate this agreement.
12. It is clearly understood and agreed by the owner that no right or privilege has been granted which would operate to prevent any person, firm or corporation operating aircraft on the airpark from performing services on its own aircraft with its own regular employees (including, but not limited to, maintenance and repair) that it may choose to perform.
13. It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right.
14. The city reserves the right to further develop or improve the airport as it sees fit, regardless of the desires or views of the owner and without interference or hindrance from owner.
15. The city reserves the right, but without obligation to owner, to maintain and keep in repair the landing areas of the airport and all publicly owned facilities of the airport, together with the right to direct and control all activities of owner in this regard.
16. During the time of war or national emergency, city shall have the right to lease the landing area of the airport or any part thereof to the United States government for military or naval use and if such lease is executed, the provisions of this instrument, insofar as they are inconsistent with the provisions of the lease to the government, shall be suspended.
17. The city reserves the right to take any action it considers necessary to protect the aerial approaches of the airport against obstruction, together with the right to prevent lessee from erecting, or permitting to be erected, any building or other structure on or adjacent to the airport or airpark which, in the opinion of the city, would limit the usefulness of the airport or constitute a hazard to aircraft.
18. The city reserves the right to temporarily close the airport or any of the facilities thereon for maintenance, improvement or for the safety of the public.
(Ord. 2005-45, 7-19-2005)