# 0

"0: : lj.S. Department

**d~** Transpoftation Federal Aviation Ac;lministration

William White, Esq. Office of Airport Compliance and Field Operations

BYRNE, KNUDSEN, & WHITE, LLP 1120 Lincoln Street, Suite 1300 Denver, Colorado 80203 Brian A. Magoon, Esq. ROBINSON WATERS & O'DORISIO, PC 1099 18th Street, Suite 2600 Denver, Colorado 80202 Robert J. Hill, Esq. Acting Montrose County Attorney 161 South Townsend Avenue Montrose, Colorado 81401 Re: FAADocketNo.l6-08-0l Dear Messrs. White, Magoon & Hill: 800 Independence Ave., S.W. Washington, D.C. 20591

Enclosed is a copy ofthe Director's Determination in accordance with 14 CFR §16.31 with respect to the above referenced Complaint. Based onthe record inthis proceeding regarding Montrose County and the Montrose County Building Authority's alleged unreasonable denial ofaccess, unjust economic discrimination and granting ofan exclusive right at Montrose Regional Airport, the Federal Aviation Administrationfinds that the County and the Building Authority are not in violation ofthe Federal obligations or Federal law, as raised bythe Complainant JetA way Aviation, Inc. Accordingly, the Complaint is dismissed. The reasons for this decision are set forth inthe enclosed Director's Determination. Sincerely,

Randall S. Fiertz Director, Office ofAirport Compliance

and Field Operations EnclosureFAA DocketNo. 16-08-01 Director's Determination
UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. JetAway Aviation, Inc. COMPLAINANT 

### v. Montrose County, Colorado and Docket No. 16-08-01 the Montrose County Building Authority RESPONDENT

DIRECTOR'S DETERMINATION

I. INTRODUCTION This matter is before the Federal AviationAdministration (FAA), Director ofthe Office of Airport Compliance and Field Operations, to investigate pursuantto the Rules of Practice for FederallyAssistedAirportEnforcement Proceedings found inTitle 14 Code ofFederal Regulations (CPR), Part 16. JetAway Aviation (JetAway/Complainant) filed this formal Complaint pursuantto 14 CPR Part 16 againstthe Board ofCounty Commissioners (BOCC), Montrose County, Colorado andthe Montrose County Building Authority (County/Respondent/Sponsor), which owns and operates the Montrose Regional Airport (Airport) inMontrose County, Colorado. The Complainant alleges that the Respondent is inviolation ofits Federal grant assurances 22, Economic Nondiscrimination; and 23, Exclusive Rights by allegedly favoring the incumbent full-service FBO, 1 Jet Center Partners (JCP) and disfavoring JetAway in a manner that unreasonably denies JetAway's aeronautical access to the Airport andgrants a prohibited exclusive right to JCP. [FAA Exhibit 1, Item 1, pp. 1-2] JetAway and the Respondent were parties to a previous Part 16 proceeding. [See JetAway Aviation LLC v Board ofCountv Commissioners, Montrose Countv. Colorado, FAA DocketNo. 16-06-01, (November 6, 2006) (Director's Determination) and FAAExhibit 1, Item 3, exh. A] (2006 JetAway DD) Complainant states that "two years have now passed

... and the County has continued its pattern ofdelay and refusal to negotiate with JetAway in goodfaith with respectto JetAway's proposal to provide FBO services and sell aviation fuel onthe Airport." [FAA Exhibit 1, Item 1, p. 3]

1A fixed-base operator (FBO) is a commercial entity providing aeronautical services such as fueling, maintenance, storage, ground and flight instruction, etc., to the public. [FAA Order 5190.6A, Airport Compliance Requirements, October 2, 1989, Appendix 5.] Page 1 of50FAADocketNo. 16-08-01 Director's Determination

The Respondent denies these claims. Specifically, the Respondent denies that itis violating grant assurance 22. [FAA Exhibit 1, Item 3, p. 8] The County denies that it is violating grant assurance 23 or49 U.S.C. §§ 40103(e) and 47107(a)(4), stating that ithas identified a site available onthe Airport which may be leased for FBO operations in accordance with the Director's comments inthe 2006 JetAway DD. [FAA Exhibit 1, Item 3, p. 4] [See Also FAA Exhibit 1, Item 3, exh. A, p. 35] Based onthe Director's review and consideration ofthe evidence submitted, the administrative record designated as FAAExhibit 1, the relevant facts, and pertinent law and policy, the Director concludes, as set forth herein, thatthe Respondent is currently not in violation ofgrant assurances 22, Economic Discrimination or 23, Exclusive Rights.


### II. PARTIES Montrose Regional Airport (Airport) is a public-use airport owned by Montrose County and operated bythe Montrose County Board ofCounty Commissioners (BOCC), Montrose County, Colorado. The Montrose County Building Authority is the owner ofthe land and included as a co-sponsor ofthe Airport, having signed AlP grant agreements. [FAA Exhibit 1, Item 4, p. 1] Montrose Regional Airport is a primary commercial service airport. FAArecords indicatethe planning and development oftheAirporthasbeen financed with funds provided bythe FAAunderthe Airport Improvement Program (AlP) authorized bythe Airport and Airway Improvement Act of 1982, as amended, 49 U.S.C. § 47101, etseq. [See FAA Exhibit 1, Item 18] The Complainant, JetAway Aviation leases land from One Creative Place, LLC. JetAway may access the Airport (including the taxiing ofaircraft through the airport boundaries), pursuant to the powers granted by Montrose County in a specific 'through the fence agreement'2 assigned to One Creative Place and its tenants, titled "Agreement Authorizing Off-Airport Operations at Montrose Regional Airport." (Off-AirportAgreement) [FAA Exhibit I, Item 1, exh. 2] JetAway does business at the Airport andprovides several aeronautical services. [See 2006 JetA way DD; FAA Exhibit I, Item 3, exh. A, pp. 2 & 4] However, One Creative Place and JetAway have common ownership. According to the

**Com~lainant's** FBO proposal and revised draft settlement agreement, dated November 28, 2007 , StephenS. Stuhmer offers himselfon the signature line as a principle ofJetAway Aviation, One Creative Place LLC and KMTJ Fuel LLC, located at One Creative Place, Montrose, Colorado. [FAA Exhibit 1, Item I, exhs. 6 & 7] JetAway states, in its Reply, "JetAway Aviation, LLC and One Creative Place, LLC are two separate legal entities

...

2 The FAA uses the term 'through-the-fence' operationto refer to an operation that involves the movement ofaircraft to and from the airfield to a location not owned or controlledbythe airport sponsor. Such au operation may be commercial ornon-commercial. A "through-the fence" (TTF) operation may range from only aircraft storage to a full-service fixed-base operation offering the into-plane sale ofaviation fuels. 3 In this case, JetAway alleges that the County's failure to accept this November 28, 2007 settlement agreement establishes the County's violation ofthe grant assurances, as discussed herein. Page 2 of50FAADocketNo.l6-08-0l Director's Determination
The two limited liability companies presently do have common ownership

...." [FAA Exhibit 1, Item 5, pp. 33-34] Inthe 2006 JetAway DD, the Director stated that JetAway filed an action in Montrose County District Court, "to determine the extent ofservices that maybe provided to the general public under the Off-Airport Agreement." [FAA Exhibit 1, Item 3, exh. A, p. 6] In its Findings ofFact, Conclusions ofLaw and Order, that Court ordered, "Jetaway can self-fuel aircraft but cannot fuel any other aircraft. Any airplane to be self-fueled must be owned and titled to One Creative Place, LLC." [FAA Exhibit 1, Item 5, exh. 60, p. 40] It appears that JetAway and/or KMTJ Fuel have the right to selffuel aircraft titled to One Creative Place, LLC. Throughout the multiple courtpleadings, the parties andthe court refer to the plaintiffs as JetAway, stating, "One Creative Place, LLC, JetAway, LLC and KMTJ Fuel, LLC (collectively referred to as "JetAway")." [FAA Exhibit 1, Item 5, exh. 60, p. 1] The Director adopts the Montrose County District Court's practice to refer to One Creative Place, LLC, JetAway, LLC and KMTJ Fuel, LLC, collectively as "JetAway."

III. PROCEDURAL IDSTORY and BACKGROUND Complainant's Part 16 Procedural History On January 10,2006, JetAway filed formal Complaint, FAA DocketNo. 16-06-01, against the County with the FAA under 14 CFR Part 16. (2006 JetAway Complaint) [FAA Exhibit 1, Item 3, exh. A, p. 7] On November 6, 2006, the FAA issued a Director's Determination for FAA DocketNo. 16-06-01 (2006 JetAway DD) [JetAway Aviation LLC v Board ofCounty Commissioners. Montrose County, Colorado, FAA DocketNo. 16-06-01, (November 6, 2006) (Director's Determination) and FAAExhibit 1, Item 3, exh. A], finding thatthe County was not currently in violation ofits grant assurances. (2006 JetAway DD) The FAA also offered to assist in dispute resolution through mediation. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 35] FAA engaged inmediation withbothparties beginning on March 6, 2007. [FAA Exhibit 1, Item 1, page 7-8] The FAA mediation ended onNovember 19,2007. [FAA Exhibit 1, Item 1, page 6] The County terminated settlement negotiations by letter dated December 5, 2007. [FAA Exhibit 1, Item 1, exh. 8] OnJanuary 25,2008, JetAway filed this Part 16 Complaint, FAA DocketNo. 16-08-01. [FAA Exhibit 1, Item 1] FAA issued its Notice ofDocketing, dated February 12,2008. [FAA Exhibit 1, Item 2] On March 26, 2008, the Respondent filed its Answer and Motionto Dismiss and an errata onApril30, 2008. [FAA Exhibit 1, Items 3 & 4]

Page 3 of50FAADocketNo. 16-08-01 Director's Determination
On July 14,2008, JetAway filed their Reply to the Respondent's Answer and Motionto Dismiss. [FAA Exhibit 1, Item 5] OnAugust 15,2008, the Respondent filed its Rebuttal to the Complainant's Reply. [FAA Exhibit 1, Item 6] Inthe fall of2008, the parties continued negotiations in an attempt to settle their dispute. [FAA Exhibit 1, Item 17] The parties moved to supplement the record with additional pleadings, with evidence, several times through March 3, 2009. [FAA Exhibit 1, Items 7- 12, 14-16] The FAA acknowledged the parties' attempts and pleadings, eventually extending the due date ofthe issuance ofthe Director's Determination to June 30, 2009. [FAA Exhibit 1, Items 13, 17, 18] Factual Background Many ofthe documents comprising the record for tills Complaint consist ofpleadings submitted in court proceedings in other venues, including Colorado State Court and United States District Court, where action is still pending. Also, as stated, JetA way has filed a previous formal Part 16 Complaint on similar grounds. The parties submit extensive draft and final plarming documents, some withFAA-approval and some without. The parties submit opposing technical studies regarding the layout and operation ofthe Airport. Finally, JetAway submits documents associated withnegotiations betweenthe parties in FAA-sponsored mediation, prior to and after the filing ofthe extant 2008 JetAway Complaint. In its Complaint, JetAway states: "the background has been stated inparties' pleadings and the 2006 JetAway DD in FAA DocketNo. 16-06-01, which JetAway incorporates by reference." [FAA Exhibit I, Item 1, p. 2] OnAugust 23, 2001, the County entered into an "Agreement Authorizing Off-Airport Operations" (Off-Airport Agreement) with several entities that controlledproperty adjacent to the Airport. This adjacentproperty, known as "the Park," is on the northern boundary ofthe Airport betweenthe runways. The Off-Airport Agreement specifies that any successor in interest to any ofthe Park owners "shall be entitled to all rights and responsible for all liabilities under tills Agreement." It contains a covenant specifying that "tills Agreement, and the obligations and benefits ofthe parties provided herein, shall be covenants running with the land, and shall [be

## Jbinding upon and inure to the benefit ofthe parties herein, and their respective heirs, successors, and assigns." [FAA Exhibit 1, Item I, exh. 2, p. 9] [2006 JetAway DD, FAA Exhibit I, Item 3, exh. A, p. 4] OnAugust 4, 2003, the County adopted minimum standards and requirements for the provision ofcommercial aeronautical services at the Airport (2003 Minimum Standards). [FAA Exhibit I, Item 1, p. 9 & exh. 9] At the time, a full-service, County-owned, fixedbase operator- MTJ Air Services- served the Airport. The fixed-base operator was
Page 4 of50FAADocketNo. 16-08-01 Director's Determination
located onthe south end ofthe apron, west ofRunway 13/31. [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 4] In 2004, another entity- One Creative Place, LLC- purchased property withln the Park and succeeded to rights under the Off-Airport Agreement. The County executedthe Assignment ofthe Off-Airport Agreement in October 2004, effectively giving One Creative Place the rights under the original August 23, 2001, Agreement Authorizing OffAirport Operations. [FAA Exhibit 1, Item 1, exh. 2] One Creative Place owns off-airport land and facilities and leases certain facilities to several tenants engaged in various business activities. JetAway Aviation is one ofthe tenants ofOne Creative Place. This allowed JetAway to conduct "through-the-fence" aeronautical activities atthe Airport. [2006 JetAway DD, FAA Exhibit 1, Item 

### 3, exh. A, p. 4] In 2005, the County decided to privatize fixed-base operations and issued a Request for Proposals (RFP) seeking fixed-base operators that complied withthe Montrose Regional Airport Minimum Standards. The County issued the RFP on April!, 2005. [FAA Exhibit 1, Item 1, exh. 13] Two entities submitted proposals in accordance with the County's RFP and the minimum standards. One was the Complainant, JetAway Aviation; the other was Jet CenterPartners (also known as Black Canyon Jet Center or JCP). [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 4] OnAugust 15, 2005, the County selected the JCP proposal for negotiation. JetAway's proposal was not selected. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 4] On November 7, 2005, JetAway entered into a noncommercial Land Lease Agreement with the County for airport ramp space. The term ofthe land lease was for 25 years and the total area ofthe leased premises was 272,508 square feet. This area, pursuant to the Land Lease Agreement, was not intendedfor fixed-base operator activities andwas designated "forthe parking and moving ofaircraft and for no other purpose." [FAA Exhibit 1, Item 1, exh. 1] [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 4] On December 5, 2005, the County amended its minimum standards for land and improvements. With tills amendment, the County increased its minimum land requirements for a fixed-base operation to 350,000 square feet with 250,000 square feet allocated as ramp. It also increased the minimum standards for improvements to require at least 27,500 square feet to be designatedfor fixed-base operator activities. Previously, the Airport's Minimum Standards for the Provision of CommercialAeronautical Services provided: (1) the minimum land to be leased for a fixed base operation shall be 125,000 square feet, and (2) building improvements shall be permanent in nature and shall contain at least 15,000 square feet for fixed-base operations. The change inthe minimum standards was adopted in ResolutionNo. 80-2005 ofthe Montrose County Board of County Commissioners dated December 5, 2005. [FAA Exhibit 1, Item 1, exhs. 20 & 21] [2006 JetAway DD, FAA Exhibit 1, Item 

### 3, exh. A, pp. 4-5] Also on December 5, 2005, as a result ofthe August 15, 2005 selection ofthe JCP proposal for FBO services, the County entered into an FBO agreement with JCP. The
Page 5 of50FAADocketNo. 16-08-01 Director's Determination
initial term was twenty years with options to extend and rights offirst refusal at the end of the options, connnencing on January 4, 2006. [FAA Exhibit 1, Item 1, exh. 19] OnDecember 9, 2005, JetAway submitted an FBO proposal to the County and requested that the County accept its proposal at the next Board ofCounty Commissioners meeting to be held onDecember 19, 2005. This proposal was for JetAway to become a second fixedbase operator. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 5} OnDecember 20, 2005, the Countynotified JetAway that consideration ofJetAway's proposal hadbeenpostponed due to specific concerns withthe existing agreement authorizing off-airport operations. The County also notedthat it needed to understand the functional use ofthe existing off-airport facility, review the proposed fixed-base operation improvements interms ofthe Airport's master plan, review the fixed-base operator proposal relative to VOR 4 restrictions, determine whetherto issue a request for proposals, and provide other commissioners an opportunityto participate inthe evaluation process. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 5] OnDecember 30, 2005, the County requestedthe FAAto review and comment onthe OffAirport Agreement inrelation to the County's FAA grant assurances. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 5] OnJanuary 4, 2006, JCP beganproviding fixed-base operator services, including the sale ofaviation fuel. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 6] Also, on January 4, 2006, JetAway and One Creative Place filed a Complaint for Declaratory Judgment inMontrose County District Court. The action was filed to determine the extent ofservices that may beprovided to the general public under the OffAirport Agreement as well as the 2004 Assigrunent ofthat Agreement. KMTJ Fuel, LLC, an affiliate orrelated entity ofOne Creative Place and JetA way, also filed inMontrose CountyDistrict Court seeking declaratory reliefto perform off-airportthrough-the-fence fixed-base operations, including fueling. [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 6 and Item 3, exh. E] The County filed an action for Injunctive Reliefagainst JetAway, One Creative Place, and KMTJ Fuel, LLC, requesting the Courtto enjointhose entities permanently from offering any services onthe off-airport propertythat are not permitted by the Off-Airport Agreement. JetAway andthe County's cases both address the same central issue, which is the extent ofservices that JetA way and other Park owners and tenants may provide to the general public onthe off-airport property under the Off-Airport Agreement. [2006 JetAway DD, FAA Exhibit 1, Item 3, exh. A, p. 6] As stated above, the County did not accept JetAway's December 2005 proposal to become a second FBO on the Airport at its location adjacentto the through-the-fence access point. Therefore, on January 10, 2006, JetA way filed its 2006 formal Complaint, FAA Docket No. 16-06-01, against the County with the FAA under 14 CPR Part 16 alleging the County

4 A VORis a ground-based navigational aid. Page 6 of50FAADocketNo.l6-08-0l Director's Determination

had granted a prohibited exclusive rightto JCP byfailure to act onJetAway's proposal. (2006 JetAway Complaint) [FAA Exhibit 1, Item 3, exh. A, p. 7] Inthe County's February 2006 motion for a temporary restraining order, the County requested, among otherthings, thatthe Court enjoin JetAway from fueling aircraft and providing fixed-base operator services. The Courtheld a hearing onthe motion on February 15 and 17, 2006, and issued an Order on February 17. The District Court for Montrose County, inresponse to a request for a temporary restraining order, issued an Order onAprillO, 2006, whichwas effective as ofFebruary 17, 2006. The Court was requested, 

### inter alia, to restrain JetAway and its affiliates from providing fixed-base operator services at Montrose, and from interfering withJCP's FBO services. The Court reviewed the Off-Airport Use AgreementbetweenJetAway andthe County and found that JetAway was precluded from fueling any aircraft that are not owned by JetAway. As a result, the Courttook the positionthat JetAway could do what it didbefore, but could not add fueling and fixed-base operator services notcovered bythe Off-Airport Agreement. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, p. 6] The Court issued an Ordertemporarily restraining JetAway from fueling to preserve the status qno. Additionally, the Court issued an Order onApril!!, 2006 consolidating the pending cases, permitting intervention, and denying a stay ofthe proceedings. [2006 JetAway DD, FAAExhibit 1, Item 3, exh. A, page 6] On August 5, 2006, JetAway requested a lease ofthe South Tract adjacentto its off-airport parcel consisting of 187,395 square feet. [FAA Exhibit 1, Item 1, exh. 25] InNovember of2006, the Court issued a clarifying Orderthat addedto and clarified the temporary restraining order. This Order prohibited JetAway from advertising services that ithad notbeen authorized bythe Authority to provide. JetAway continuedto advertise itselfas anFBO and use the AvFuellogo. JetAway was found to be in contempt ofcourt regarding its advertising practices, and a remedial contempt order was issued. [FAA Exhibit 1, Item 5, exhibit 60, p. 19] OnMarch 6, 2007, the parties andthe FAA commenced mediation. The process was conducted throughthe FAA's Office ofthe ChiefCounsel, Administrative and Alternative Dispute ResolutionDivision. [FAAExhibit 1, Item 3, exh. F] It was not part ofthe Part 16 process. The FAA's participation inthe mediationwas governed by an agreement signed bythe mediator and the parties inMarch 2007, which states, "mediationis a confidential process." [FAA Exhibit 1, Item 3, exh. F, para. 5] The agreement also states, "noparty shall be bound by anything said or done at the mediationuuless a written settlement is reached and executed by all necessary parties." [FAA Exhibit 1, Item 3, exh. F, para. 6] OnNovember 16,2007, the County submitted its fmal settlement agreementto JetAway, which was rejected. [FAA Exhibit 1, Item 1, exh. 5] JetAway responded with its version ofa settlement agreement onNovember 28, 2007, whichthe County rejected. [FAA Exhibit 1, Item 1, exh. 6] The County terminated settlementnegotiations by letterto JetAway onDecember 5, 2007. [FAA Exhibit 1, Item 1, exh. 8]
Page 7 of50FAADocketNo. 16-08-01 Director'sDetermination

OnJune 30, 2008, the DistrictCourt, Montrose County, Colorado issued its "Findingsof Fact, Conclusions ofLawand Order,"that consolidatedandruled onthe three separate lawsuits. TheDistrictCourt orderedthatJetAway canself-fuel its aircraft but cannot fuel
any other aircraft. 

### Inaddition, any self-fueling must complywiththe Minimum Standards, mustbefrom apumpwith a meter system able to accuratelycalculatethe fuel flowage, andis subjectto theuniform fuel flowage fee establishedbythe County. The Court also found that JetAway canprovidetowing, crewandpassengerlounge facilities, public restrooms andtelephone, loading andunloading, hangar storage, and aircraft maintenance. Althoughthe Orderpermits JetAway to conductthese FBO activities, it
must complywiththe Airport'sMinimum Standards. The Court also saidtbat JetAway
must apply and payfor an accesspermit. Uponapplicationandpaymentoftbe fee, the Countyis obligatedto execute a writtendocument establishing and grantingthe access right as a propertyright appurtenantto JetAway's off-Airportparcel. The Court also terminatedthe Land LeaseAgreement.5 [FAAExhibit 1, Item 5, exh. 60, pp. 40-42]

Thepartiescontinuednegotiations inthe fall of2008 in anattemptto settletheirdispute,
buttheir efforts were not successful. [FAA Exhibit 1, Item 17] The parties eachmovedto supplementtherecord withadditional evidence several times throughMarch 3, 2009.



### IV. ISSUES The Complainantstates that, "The Countyhasunjustlydiscriminated against Complainant JetAway and granted exclusive rights to JetCenterPartners inviolation ofGrant Assurances 22 and 23."6 [FAAExhibit 1, Item 1, p. 21] InJetAway's 30 counts, within

two broad allegations,7 itraisestheissues of the grantingofan exclusiverightto JCP by

means ofland leases withJCP and by means ofuureasonable terms imposedupon JetAway'splanto offercommercial services, including aeronautical fueling; and the unjust economic discrimination againstJetAwaybyallegedpreferenceto JCP. JetAway
alsoraises issues oferrors inthe County'sAirport LayoutPlaninitsReply [FAAExhibit 1, Item 5, p. 55] andquestions Rights andPowers granted to JCP inthe form ofa right of
first refusal term inJCP'slease. [FAA Exhibit 1, Item 1, p. 27] Consideringthe above,
the FAAhas determinedthat the following issuesrequire analysis inorderto provide a completereviewofthe Respondents' compliancewithapplicable Federal lawandpolicy:

5 JetAway enteredmtothe Montrose Regional Airport Land Lease Agreement on November 7, 2005. The

use ofthe ramp area premises was limited to parking and movmg ofaircraft, and FBO services were not permitted.

The Complainantcites the applicable Federal law. (FAAExhibit I,Item 1, p. 2]

7 The burden ofprooflies with the Complamants. Complamants who file 1mder 14 CFR Part 16 shall provide a concise but complete statement ofthe facts relied upon to substantiate each allegation. [See 14
CPR § 16.23(b)(3)] Complainants will not be deemed to meet this burden simply because they have submitted volumes ofpages ill exhibits ifthey have fitiled to explain how the individual exhibits support specific allegations. [SeeM. Daniel Careyand CliffDavenportv. Afton-LincolnCountyMunicipalAir;port

JomtPowers Board, FAADocketNo. 16-06-06, (January 19, 2007) (Director'sDetermination), page 55]

Page 8 of50FAA DocketNo. 16-08-01 Director's Determination
1. Whether the County has violated grant assurance 5, PreservingRights andPowers. 2. Whether the County has violated grant assurance 29, AirportLayoutPlan. 3. Whetherthe County has granted an exclusive right for the use ofthe Airport in violation ofgrant assurance 23, Exclusive Rights, 49 U.S.C. § 40103(e) and 49 U.S.C. 

### § 47107(a)(4) bymeans ofland leases to Jet Center Partners (JCP). 4. Whether the County's actions withregard to JetAway's proposal for a FBO business at the Airport constitute the constructive granting ofan exclusive right by means ofan unreasonable denial in violation ofgrant assurance 23, Exclusive Rights, 49 U.S.C. 

### §40103(e) and 49 U.S.C. 

### § 47107(a)(4). 5. Whetherthe County has provided more favorable treatment to JCP with regard to retail aircraft services in a manner that unjustly discriminates against JetAway in violation ofFederal grant assurance 22, Economic Nondiscrimination, 49 U.S.C. § 47107(a).


### V. APPLICABLE FEDERAL LAW AND FAA POLICY The Federal role in civil aviationhas been augmented byvarious legislative actions that authorize programs for providing Federal funds to local communities for the development ofairport facilities. In each such program, the airport sponsor assumes certain obligations to maintain and operate its airport facilities safely and efficiently and in accordance with specified conditions. Commitments assumed by airport sponsors in grant agreements are important factors in maintaining a high degree ofsafety and efficiency in airport design, construction, operation and maintenance, as well as ensuring the public reasonable aeronautical access. Title 49 U.S.C. § 47101, etseq., provides for Federal airport financial assistance for the development ofpublic-use airports underthe Airport Improvement Program (AlP) established bythe Airport and Airway Improvement Act of 1982, as amended. Title 49 U.S.C. 

### § 47107, et seq., sets forth assurances to which an airport sponsor agrees as a condition ofreceiving Federal financial assistance. Upon acceptance ofan AlP grant, the assurances become a binding contractual obligationbetweenthe airport sponsor and the Federal government. The assurances made by airport sponsors in AlP grant agreements are important factors in maintaining a viable national airport system. Airport Sponsor Assurances As a condition precedent to providing airport development assistance under the Airport Improvement Program, 49 U.S.C. 

### § 47107, etseq., the Secretary ofTransportation and, by extension, the FAA mustreceive certain assurances from the airport sponsor. Title 49 U.S.C. § 47107(a) sets forth the statutory sponsorship requirements to which an airport sponsor receiving Federal financial assistance must agree.
Page 9 of50FAADocketNo. 16-08-01 Director's Determination

The FAA has a statutory mandate to ensure that airport owners comply withthese sponsor assurances.' FAA Order 5190.6A, Airport Compliance Requirements (FAA Order 5190.6A), issued on October 2, 1989, provides the policies andprocedures to be followed bythe FAA in carrying out its legislatively mandated functions related to Federally obligated airport owners' compliance with their sponsor assurances. The FAA considers it inappropriate to provide Federal assistance for improvements to airports where the benefits ofsuch improvements will not be fully realized due to inherent restrictions on aeronautical activities. The following grant assurances are relevantto this Complaint: Grant Assurance 5,PreservingRights andPowers Grant Assurance 5, PreservingRights andPowers, implements the provisions ofTitle 49 U.S.C. § 47107, and requires, inpertinent part, that the sponsor ofa Federally obligated airport: "

...will not take orpermitany action which wouldoperate to deprive itof any of the rights and powers necessary toperform any or all of the terms, conditions, and assurances in the grantagreement without the written approval of the Secretary, andwill actpromptly to acquire, extinguish or modifYany outstanding rights or claims of right of others which would interfere with suchperformance by the sponsor. This shall be done in a manner acceptable to the Secretary. " The Order describes the responsibilities under Grant Assurance 5 assumed by the owners ofpublic-use airports developed with Federal assistance. Among these is the responsibility for enforcing adequate rules, regulations, or ordinances as are necessary to ensure the safe and efficient operation ofthe airport. [See FAA Order 5190.6A, Sec. 4-7 & 4-8.] Grant Assurance 22,EconomicNondiscrimination The owner ofany airport developed withFederal grant assistance is required to operate the airport for the use and benefit ofthe public. Federal grant assurance 22, Economic Nondiscrimination, (Assurance 22) deals with boththe reasonableness ofairport access andthe prohibition ofadopting unjustly discriminatory conditions as a potential for limiting access. Assurance 22 ofthe prescribed sponsor assurances implements the provisions of49 U.S.C. 

### §47107(a)(l) through (6), and requires, inpertinent part: [The airport owner or sponsor] will make the airport available as an airport for public use on reasonable terms andwithout unjust discrimination to all types, kinds andclasses of aeronautical activities, including commercial aeronautical activities offeringservices to thepublic at the airport. [Assurance 22(a)]

8 See, e.g., the Federal Aviation Act of 1958, as amended and recodified, Title 49 U.S.C. §§ 40101,40113,

40114, 46101,46104,46105,46106, 46110; and the Akport and Airway Improvement Act ofl982, as amended andrecodified, Title 49 U.S.C. §§ 47105(d), 47106(d), 47107(k), 47107(1), 47111(d), 47122 Page 10 of50FAADocketNo. 16-08-01 Director's Determination
Each fixed-based operator at the airport shall be subject to the same rates,fees, rentals, andother charges as are uniformly applicable to all other fixed-base operators makingthe same or similar uses of such airport andutilizing the same or similar facilities. [Assurance 22(c)] The sponsor may establish such reasonable, andnot unjustly discriminatory, conditions to be met byall users of the airportas may be necessary for the safe and efficient operation of the airport. [Assurance 22 (h)] The sponsor mayprohibit or limitanygiven type, kind or class of aeronautical use of the·airport if such action is necessary for the safe operation of the airport or necessary to serve the civil aviation needs of thepublic. [Assurance 22(i)] Subsection (h) qualifies subsection (a), and subsection (i) represents an exceptionto subsection (a) to permit the sponsorto exercise control ofthe airport sufficient to preclude unsafe and inefficient conditions that would be detrimental to the civil aviation needs of the public. In all cases involving restrictions on airport use imposed by airport owners for safety and efficiency reasons, the FAA will make the final determination onthe reasonableness of such restrictions whenthose restrictions deny or limit access to, oruse of, the airport. [FAA Order 5190.6A, Section 4-8] Grant Assurance 23,ExclusiveRights Federal grant assurance 23, Exclusive Rights, (Assurance 23) implements the provisions of 49 U.S.C. §§ 40103(e) and 47107(a)(4), and requires, in pertinent part, that the owner or sponsor ofa Federally obligated airport:

...willpermitno exclusive right for the use of the airport by anypersonsproviding, or intending toprovide, aeronautical services to thepublic.... It fUrther agrees that it will not, either directly or indirectly, grant orpermitanyperson,firm, or corporation, the exclusive right at the airport to conduct any aeronautical activities. [Assurance 23] While public-use airports may impose qualifications and minimum standards uponthose who engage in aeronautical activities, FAAhas takenthe position that the application of any unreasonable requirement or any standardthat is applied in anunjustly discriminatory manner may constitute the constructive grant ofan exclusive right. Courts have found the grant ofan exclusive right where a significant burden has beenplaced on one com,retitor that is not placed onanother. [See e.g. Pompano Beach v FAA, 774 F2d 1529 (11 Cir, 1985)] An owner or sponsor is underno obligation, however, to permit aircraft owners to introduce onto the airport equipment, personnel, orpractices which wouldbe unsafe, unsightly, detrimental to the public welfare, or whichwould affect the efficient use of airport facilities. [FAA Order 5190.6A, Section 3-9 (e)]

Page 11 of50FAADocketNo.16-08-0l Director's Determination
The FAAhas updated exclusive rights guidance inFAA Advisory Circular 150/5190-6 Exclusive Rights at Federally-ObligatedAirports, January 4, 2007, stating: An exclusive rights violation can occur through the use of leases where,for example, all the available airport landand/or facilities suitable for aeronautical activities are leasedto a single aeronautical serviceproviderwho cannotput it intoproductive use within a reasonableperiodof time, thereby denying other qualified parties the opportunity to compete to be an aeronautical serviceprovider at the airport. An airport sponsor's refusal topermita single FBO to expandbasedon the sponsor's desire to open the airport to competition is not a violation of the grantassurances. Additionally, an airport sponsor may exclude an incumbent FBO fromparticipating under a competitive solicitation in order to bring a secondFBO onto the airport to create a more competitive environment. [Excusive Rights AC, Section 1.3(b)(3)] Grant Assurance 24, FeeandRentalStructure Grant assurance 24, Fee andRentalStructure, addresses fees the owner or sponsor levies on airport users in exchange for the services the airportprovides. Title 49 U.S.C. § 47107(a)(13) requires, inpertinent part, thatthe owner or sponsor ofa Federally obligated airport "will maintain a schedule ofcharges for use offacilities and services at the airport that will make the airport as self-sustaining as possible underthe circumstances existing at the airport." Grant assurance 24 satisfies the requirements of§ 47107(a)(13). It provides, inpertinent part, thatthe owner or sponsor ofa Federally-obligated airport agrees to establish a fee and rental structure that will make the airport as self-sustaining as possible underthe circumstances existing attheparticular airport, taking into account such factors as the volume oftraffic and economy ofcollection. This sponsor will maintain a fee and rental structure consistent with assurances 22, Economic Nondiscrimination, and 23, Exclusive Rights. The intent ofthe assurance is for the airport operator to charge fees that are sufficient to cover as much ofthe airport's costs as is feasible. Moreover, the Order states that the owner or sponsor's obligation to make an airport available for public use does not preclude the owner or sponsor from recovering the cost ofproviding the facility. The owner or sponsor is expected to recover its costs through the establishment offair and reasonable fees, rentals, or otheruser charges that will make the airport as self-sustaining as possible underthe circumstances existing at the particular airport. [See FAA Order 5190.6A, Section4-14(a).] Grant Assurance 29,AirportLayoutPlan Grant Assurance 29, AirportLayoutPlan (ALP), implements the provisions of49 U.S.C. § 47107(a)(16) byrequiring an airport sponsor to keep up-to-date the ALP. Specifically, Grant Assurance 29 requires the airport sponsor to show onits ALP the boundaries ofthe airport and all proposed additions thereto, the location and nature ofall existing and
Page 12 of50FAA DocketNo. 16-08-01 Director's Determination proposed airport facilities and structures (such as runways, taxiways, aprons, terminal buildings, hangars and roads), and the location ofall existing and proposed nonaeronautical uses. Airport layout plans and amendments, revisions, ormodifications thereto, are subject to the approval ofthe FAA. Whatthis means from a practical standpoint is that an airport sponsor must not make orpermit any changes or alterations inthe airport or any ofits facilities which are not in conformity with the airport layout plan. The FAA mayrequire elimination, relocation or mitigation ofany change to the airport that is not approved by the FAA onthe ALP and that adversely affects the safety, utility orefficiency ofany Federally improved property. Airport Agreements Granting "Through-the-Fence" Access The Federal obligationto make an airport available for the use and benefit ofthe public does not impose any requirement to permit access by aircraft from adjacent property. 9 However, there are times whenthe sponsor will enter into an agreement that permits access to the airfield by aircraft based onland adjacent to, but not a partof, the airport property. This type ofan arrangement has frequently been referred to as a "through-thefence" operation eventhough a perimeter fence may notbe visible. Because through-the-fence arrangements canplace an encumbrance upon the airport property and reduce the airport's ability to meet its Federal obligations, as a general principal the FAA does not support agreements that grant access to the public landing area by aircraft stored and serviced off-site on adjacent property. The existence ofsuch an arrangement could conflict withthe sponsor's Federal obligations unless the sponsor retains the legal right to require the offsite property owner or occupantto conform in all respects to the requirements ofany existing or proposed grant agreement or Federal property conveyance obligation. [FAA Order 5190-6A, Section 6-6] The development ofaeronautical enterprises on land off-airport and not controlled by the sponsor can create problems. For example, it canresult in an economic competitive advantage for the "through-the-fence" operatorto the detriment ofon-airport tenants. To equalize this imbalance, the sponsor should obtain from any off-airport enterprise or entity a fair return for its use ofthe airfield by assessing access fees from those entities having "though-the-fence" access. The airport sponsormust not discriminate against those aeronautical users withinthe airport. However, the airport may also charge any fee it sees fit to those outside the airport. In addition, the airport sponsor is entitledto seekrecovery ofinitial and continuing capital and operating costs ofproviding a public use airfield. Moreover, special safety and operational requirements should be incorporated into any access

9 See FAA Order 5190.6A, Section 6-6(a). Based onthis, an all-port sponsor may simply deny "throughthe-fence" access ifit so chooses. Since federal obligations do notrequire that access be grantedunder these circumstances, users having access to the airport under a

**'~hrough-the-fence"** agreement are not protectedbythe airport sponsor's federal obligations to the FAA. Page 13 of50FAADocketNo. 16-08-01 Director's Determination agreement to ensure that the through-the-fence access does not complicate the control of vehicular and aircraft traffic or compromise the security ofthe airfield operations area. [FAA Order 5190-6A, Section 6-6] Finally, the existence ofan arrangement granting access to a public landing area from offsite locations contrary to FAArecommendations shall be reported to the FAA along with details onthe circumstances. Ifthe FAA determines thatthe existence ofsuch an agreement circumvents the attainment ofthe public benefit for whichthe airport was developed, the owner ofthe airport will be notifiedthat the airport may be inviolation of its agreements with the Govermnent. [FAA Order 5190-6A, Section 6-6] The FAAAirport Compliance Program The FAA discharges its responsibilities for ensuring airport owners' compliance with their Federal obligations through its Airport Compliance Program. The FAA's airport compliance efforts are based onthe contractual obligations an airport owner accepts when receiving Federal grant funds or the transfer ofFederal property for airport purposes. These obligations are incorporated in grant agreements and instrmnents ofconveyance in order to protectthe public's interest in civil aviation and to ensure compliance with Federal law. TheFAA Airport Compliance Program is designed to ensure the availability ofa national system ofsafe and properlymaintained public-use airports operated in a marmer consistent withthe airport owners' Federal obligations and the public's investment in civil aviation. The Airport Compliance Program does not control or direct the operation ofairports. Rather, itmonitors the administration ofthe valuable rights pledged by airport sponsors to the people ofthe United States in exchange for monetary grants and donations ofFederal property to ensure that the public interest is being served. FAA Order 5190.6A sets forth policies and procedures for the FAA Airport Compliance Program. The Order is not regulatory and is not controlling with regard to airport sponsor conduct. Rather, it establishes the policies and procedures to be followed by FAApersonnel in carrying out the FAA's responsibilities for ensuring airport compliance. It provides basic guidance for FAApersonnel in interpreting and administering the various continuing commitments made to the United States by airport owners as a condition ofreceiving a grant ofFederal funds or the conveyance ofFederal property for airport purposes. The Order analyzes the various obligations set forth inthe standard airport sponsor assurances, addresses the nature ofthose assurances, addresses the application ofthose assurances inthe operation ofpublic-use airports, and facilitates interpretation ofthe assurances by FAA personnel. The FAA Compliance Program is designed to achieve voluntary compliance with Federal obligations accepted by owners and/or operators ofpublic-use airports developed with FAA-adrninistered assistance. Therefore, in addressing allegations ofnoncompliance, the FAA will make a determination as to whether an airport sponsor is currently in compliance withthe applicable Federal obligations. Consequently, the FAA will consider the successful action by the airport to cure any alleged orpotential past violation of
Page 14of50FAADocketNo.l6-08-0l Director's Determination applicable Federal obligation to be grounds for dismissal ofsuch allegations. [See e.g. Wilson Air Center v. Memphis and Shelby County Airport Authority, FAA DocketNo. 16-99-10, (August 30, 2001) (Final Decision and Order)] Enforcement procedures regarding airport compliance matters may be found at FAA Rules of Practice for FederallyAssistedAirportEnforcementProceedings (14 CFR Part 16). These enforcement procedures were published in the Federal Register (61 FR 53998, October 16, 1996) and became effective onDecember 16, 1996.


### VI. ANALYSIS AND DISCUSSION This Complaint is primarily an allegation that Montrose County has granted an unlawful exclusive right to the Airport's FBO, Jet Center Partners (JCP), by the circumstance ofthe Airport layout and land leases (allegation A, counts 1-5, 8, 9) and by the intent to deny access to others by means ofunreasonable terms (allegationA, counts 6 & 7). Also, JetAway alleges thatthe County has failed to accommodate JetAway's proposed FBO business plan at its preferred airport location (Airpark adjacent location) to such an extent as to unjustly discriminate against JetAway (allegationB). [FAA Exhibit 1, Item 1, p. 2] The County states: The County sought to accommodate JetAway 's request by resolving the through-thefence issues andwithout exposurefor the County's residents andthe expense of further litigation. The County was unable to do so. By identifYing andmaking available the 9. 612-acre site, the County is confirming itsposition from the onset: There is no exclusive right. [FAA Exhibit 1, Item 3, pp. 4-5] The allegations, arguments and evidence in this case are extensive and complex. The parties dispute each others' facts and question each others' motives, evidence and experts. Also, the parties have been engaged in extensive litigation in state court and United States District Court. [See FAA Exhibit 1, Item 1, exh. 3 and Item 6, exh. QQ, p.3] JetAway filed a Formal Part 16 Complaint in2006 with similar allegations to the extant Complaint. The Directordismissed that Complaint onNovember 7, 2006. [FAA Exhibit 1, Item 3, exh. A] The Directorunderstands that the Complainant and the Respondent may be expecting the FAA to find facts onvarious questions indirectly related to matters under FAA'sjurisdiction. However, as is appropriate for a FAA Part 16 investigation, the Director must focus on questions ofthe Respondent's compliance with its grant assurances and Federal law. We will find facts relevant when theypertainto the question ofthe Respondent's compliance with its Federal obligations, relying onFAA law, policy and Part 16 precedent.

Page 15 of50FAADocketNo.l6-08-0l Director's Detennination
Motions and Preliminary Matters 

### Motion to Dismiss: BuildingAuthority The Complainant, JetAway, included the Montrose County Building Authority as a named-respondent in this case. JetA way hadnot includedthe Building Authority in its 2006 JetAway Complaint. In correcting an original error inits Answer, the Respondent admits that the Montrose County Building Authority has signed grant agreements, and accepted the associated grant obligations as the owner ofthe Airport property. [FAA Exhibit 1, Item 4] Therefore, the FAA simply accepts thatthe Montrose County Building Authority and Montrose County are co-sponsors ofthe Airport and will simply refer to them, collectively, as the Respondent, County or Sponsor. The County moved to dismiss the Montrose County Building Authority from the Complaint, because JetAway had not specifically engagedthe Building Authority in informal resolution. JetAway andthe County have an extensive record ofattempts to resolve this ongoing dispute, including the prior 2006 JetAway Complaint and FAA-sponsored mediation. While the parties may continue to argue the importance ofthe relationship between Montrose County andthe Montrose County Building Authority, it is the Director's viewthat JetAway's ongoing dialogue with airport management is sufficient for purposes ofconducting informal resolution. The County's motionto dismiss the Montrose County BuildingAuthority is denied. 

### Motion to Dismiss: Confidentiality The County moves to dismiss the Complaint because JetAway violated the confidentiality ofthe FAA -sponsored mediation in its pleadings. Participation inthe mediation was governed by an agreement signed bythe mediator and the parties inMarch 2007, which states, "mediationis a confidential process." [FAA Exhibit 1, Item 3, exh. F, para. 5] The agreement also states, "no party shall be bound by anything said or done at the mediation unless a written settlement is reached and executed by all necessary parties." [FAA Exhibit 1, Item 3, exh. F, para. 6] The mediation is separate and apart from this Part 16 proceeding. Inthis case, JetAway has provided a snapshot inthe form ofJetAway's November 2007 Settlement Offer. [FAA Exhibit 1, Item 1, exh. 5] The County responds with a motionto dismiss the Complaint. The County's motionto dismiss the Complaint over confidentiality breaches ofthe mediation is denied. The mediation does not control the Part 16 proceedings. Nevertheless, the confidentiality ofthe mediation has been breached and the documents are now in the public domain. As such the Director will considerthe documents inthis proceeding.

Page 16 of50FAADocketNo. 16-08-01 Director's Determination
Motions to SupplementRecord Each ofthe parties has submitted Motions to Supplementthe Record. Complainant filed multiple motions to supplementthe record with additional exhibits and two responses which included additional exhibits. [FAA Exhibit 1, Item 7 (Exhibit 73), Item 8 (Exhibits 74 and 75), Item 12 (Exhibit 76), Item 14 (Exhibit 76(a), and Item 16 (Exhibit 77)] Respondent filed multiple motions to supplement the record withmultiple exhibits. [FAA Exhibit 1, Item 9 (Exhibits TT, UU, VV, WW, XX), Item 11 (Exhibits YY and ZZ), and Item 15 (Exhibit AAA)] The Director issued two orders acknowledging the parties' multiple filings to supplement therecord. [FAA Exhibit I, Item 13 and Item 17] Clearlythis extensive number ofsupplemental filings is highly unusual in a Part 16 proceeding. Nonetheless, motions are the appropriate means to make application for an order or ruling not otherwise specifically provided for inthe regulation. [See 14 CPR 

### § 16.19(a)] The requisite procedural requirements have beenmet. The Director has reviewed the filings and will permitthe parties to supplementthe record with the requested exhibits. Accordingly, the exhibits contained inthe supplemental filings, including motions and answers, will be considered bythe Director inthis determination and are included inthe Index ofthe Administrative Record. Proprietary Rights, Federal Obligations andNegotiations One ofthe key fundamental principles at issue here is the proprietary rights ofan airport sponsor. This was at issue inthe 2006 JetAway DD. Succinctly, Federal obligations limit a sponsor's proprietary rights, but do not eliminate them. [See, Kent J. Ashton and Jacquelin R. Ashton v. Citv ofConcord, North Carolina, FAA DocketNo. 16-02-01 (Director's Determination Issued August 22, 2003) (Final Agency Decision Issued February 27, 2004) Ashton III, DD, p. 27] One example ofwhere an airport sponsor may exercise its proprietary rights is to protect itselfas a going concern inthe face oflitigation. 10 Another way inwhich an airport sponsormay exercise its proprietary rights is to pursue a range ofaeronautical services to serve the needs ofthe aviation community. 11 A third way in which an airport sponsor may reasonably exercise its proprietary rights is to plan for the long-term development,

10 InKent J. Ashton and Jacquelin R. Ashton v. Citv ofConcord, FAADocket No. 16-02-01 (Director's DeterminationIssued August 22, 2003) (Final AgencyDecision IssuedFebruary 27, 2004), the Director acknowledges, "it is the Complainants' right topursue complaints and protecttheir interest (however) it is the Respondent's right toprotect itself from thepossibility of future costly and frivolous litigation." Continuing, the Director found that an Airport sponsor: "

... was notobligatedto expose itself tofUture lawsuits by entering into a business agreement with (Complainant). Given (Complainant's)prior history of lawsuits andFAA complaints,plus a threat of future litigation" [See, Ashton III DD, Page 27] 11 In SelfServe Pumps v Chicago Executive Airport, FAA DocketNo. 16-07-02 (Director's Determination Issued March 17, 2008), the Director stated, "Clearly, the Airportmanagementbelieves that its bundling of associatedservices with the sale of fuel serves the interests of thepublic in civil aviation. This is its primary mission.
... In the end, the evidencepresentedby the Complainant is insufficient to eclipse the Airport'sproprietary discretion to make managementdecisions in the bestaeronautical interests of the public, balancedwith the best business interests of theAirport as a going concern. " [SSPumps, DD, p.25] Page 17 of50FAA DocketNo. 16-08-01 Director's Determination marketing and layout ofits airport to ensure its utility and self-sustainability. 12 Finally, an airport sponsor may exercise its proprietary rights to protect itselfas a going concernby limiting, mitigating or eliminating aeronautical access from adjacent off-airport property 'through-the-fence.' 13 

### In some cases, a sponsor's Federal obligation under grant assurance 5, PreservingRights andPowers, might prevent a sponsor from accommodatingthe wishes ofa particular on-airport, or through-the-fence proponent. The negotiations in the FAA-sponsored mediation were not a negotiation ofthe County's state ofcompliance with its Federal obligations or part ofthis Part 16 proceeding. The FAAhad not found the County to be innon-compliance withits Federal obligations. [FAA Exhibit 1, Item 3, exh. A] The Directorhas already observed that the County might be able to structure some kind of an agreement or agreements atthe Airport to allow JetAwayto sell fuel in a manner within the bounds ofits Federal obligations. The Director stated: Additionally, the Director believes that all of the issues in this case can be resolved informally in a manner consistentwith the County's Federal obligations. Since both the County andJCP have statedthat an additional FBO at theAirport isfeasible, that itappears thatS1.(/ficient airportpropertyisavailable to accommodate a second FBO, andthe County appears to have concludedon March 20, 2006 that JetAway's proposal meets allMinimum Standards, successful resolution appears to be possible. [FAA Exhibit 1, Item 3, exh. A, p. 35] However, the Director also stated:

... the Federal obligation to make an airportavailablefor the use andbenefit of the public does not impose any requirement topermitaccess by aircraft from adjacent property andthe airport sponsor may,from FAA'sperspective, simply deny

"through-theftnce" access 

### if itso chooses. Basedon this, Complainant's right to provide anyservices from its off-airport location is not a matterprotectedby the County's Federal obligations. Additionally, the Off-AirportAgreement can lead to violations of the airport's Federal obligations. [FAA Exhibit 1, Item 3, exh. A, p. 13] In addition,the Director statedother options, bypointing out that an "aerial view and the Airport Layout Plan clearly showthat there are potential locations for FBO facilities at the Airport in addition to JCP, albeit the area may not be adjacent to JetAway's current off-airport facilities
..... The fact that potential locations for FBO operations are not located next to JetAway's current off-Airport facility should not be an issue since JetAway

12 In Thermco Aviation v Los Angeles, FAA DocketNo. 16-06-07 (Final AgencyDecision Issued December 17, 2007), the Associate Administrator states: "The very nature of lease agreements is that they are for a definite term, so that bothparties may changeplans andarrangements to suit their respective interests. Federal obligations do notpreventthis sponsor from exercising such change

... In fact, the terms

**~f**the lease agreement are theprimaryprotection of tenants for continuedoccupancy of a leasehold, not the grant assurances." [Thermco, FAD, p. 27] "See 2006 JetAway DD. Page 18 of50FAADocketNo. 16-08-01 Director's Determination has argued that its proposed on-Airport proposal is independent from its off-airport operations." [FAA Exhibit 1, Item 3, exh. A, p. 35, fu. 302] [See Also FAA Exhibit 1, Item 1, exh. 12, p. D.13, exh. 17, p. 2, exh. 26 and Item 5, exh. 53 & exh. 43, pp. E.13 & E.l7] The FAA has found in SantaMonicaAirport Association (SMAA), Krueger Aviation, and Santa MonicaAir Center v. County ofSantaMonica, FAA DocketNo. 16-99-21 (February 4, 2003), that: "A sponsor is notrequiredto develop any andallparcels of land in a manner consistentwith the wishes of any oneparty, but rather may exercise its proprietary rights and powers to develop andadminister the Airport's land in a manner consistentwith thepublic's interest." [SMAA FAD, 16-99-21, p. 19] Thus, the Director's guidance to the parties in the prior 2006 DD is informative here and clarifies the bounds ofthe County's Federal obligations and the County's proprietary rights. OtherDisputes Between the Parties The point ofthe FAA-sponsoredmediation was to determine whetherthe two parties, JetAway and Montrose County, could come to terms on their specific interests and goals. The process was conducted throughthe FAA's Office ofthe ChiefCounsel, Administrative and Alternative Dispute Resolution Division. [FAA Exhibit 1, Item 3, exh. F] Itwas not part ofthis Part 16 proceeding. The Director notes that the extensive record inthis case clearlydemonstratesthatthe Complainant'sprimary intent inthe mediation, the two FAA formal Part 16 complaints and its litigation against the County is to establish a full-service FBO facility, vending fuel, inthe vicinity ofits existing infrastructure onthe off-airport property known as the Park. [See Procedural History and Background, and Findings ofFact] The FAA does not arbitrate ormediate negotiations through a formal Part 16 proceeding. Nor does the FAA enforce lease terms betweenparties to an agreement. Rather, the FAA enforces contracts between an airport sponsor and the Federal government. [See AmAv v. Maryland AviationAdministration, FAA DocketNo. 16-05-12, (March 20, 2006) (Director's Determination), p.23] State courts are the appropriate place for the disposition ofdisputes ofcontracts and performance undercontracts. Airport sponsors are free to include terms ofperformance in agreements, such as leases. As discussed above, and in the 2006 JetAway DD, airport sponsors are bound by Federal obligations regarding reasonableness, non-discrimination and exclusive rights as applied to on-airport aeronautical users. But even with on-airport users, the FAA does not adjudicate questions ofdefault under leases agreed to byparties. [FAA Exhibit 1, Item1, exh.l] 14 In fact, JetAway has been aggressive in state and Federal courts to protect its rights under its agreements. [See FAAExhibit 1, Item 6, exh. QQ, p. 3] Forexample, two agreements
14 Penobscot Air Service v. Knox County, FAADocketNo. 16-97-04 (September 25, 1997) (Director's Determination) (Penobscot), the FAA sunnnarizedthis long-standing concept: TheAgencymade it clear that, "Thepurpose of the grant assurances is toprotectthepublic interest in the operation of Federally obligatedairports. Thepurpose is not toprovide alternative orsupplemental rights to those normally available to commercial tenants in disputes with their landlords, i.e. negotiation or commercia/litigation under applicablestate andlocalla:ws

.... " [Penobscot at page 24, citingto Sky East Services. Inc. v. Suffolk County, Complaint Nos. 13-88-06 and 13-89-01] Page 19 of50FAA DocketNo. 16-08-01 Director's Determination between JetAway andthe County have been litigated: the Off-Airport Agreement [FAA Exhibit 1, Item 1, exh. 2] and the non-commercial Land Lease Agreement. [FAA Exhibit 1, Item 1, exh. 1 

## J The findings ofthe state court appear well-supported by evidence and appear to address issues properly before a state court. The court's Findings Fact, Conclusions ofLaw and Order (Montrose Court Order), dated June 30,2008, states: The [Off-AirportAgreement is ambiguous because it is susceptible to two reasonable interpretations. Specifically, Section 3(g) can be interpreted, as argued by the County, thatJetAway can only engage in services expressly allowed under the agreement. On the other hand, as arguedbyJetAway, Section 3(g) can be interpretedas allowingJetAway to offir anyservices not expresslyprohibited. [FAA Exhibit 1, Item 5, exh. 60, p. 26] As stated, this contract dispute is withinthejurisdiction ofthe state court. Itis proper for the state court to interpret the meaning ofthe terms ofthe Off-Airport Agreement. JetAway's rights to conduct commercial activities that involve the transit ofaircraft 'through-the-fence' ofthe Airport may be protected bythe Off-AirportAgreement, butnot the County's Federal grant assurances. With regard to JetAway's rights to provide commercial services under the Off-Airport Agreement, the Montrose Court Order found: The [Off-Airport Agreement] specifically lists the sale of aircraft foe!,flight training [with exceptions

### Jandaircraftrentals or charters as additional FBO services that areprohibited. Therefore, Jetaway cannot offer these services without express approval from the County. [FAA Exhibit 1, Item 5, exh. 60, p. 27] Withregard to JetAway's noncommercial Land Lease Agreement (LLA), the Montrose Court Order found: The LLA specifies that the leased premises is for theparkingandmoving of aircraft and for no otherpurpose, andthat the LLA does notcreate any additional rights or diminish any existing rights under the [Off-Airport Agreement]

...

The County also argues thatJetaway breachedthe lease by using the leasedarea for FBO operations. The Court agrees. It is undisputed thatJetawayfueled airplanes on the leased premises after entering into the LLA. Although Jetaway initially argued ithada right under the [Off-Airport Agreement] tofuel airplanes once fueling services wereprivatizedat theAirport, it later withdrew that argument. Jetaway now concedes that it hadno right tofuel airplanes without the County's approval. Fueling is an FBO service. The LLA specificallyprohibits engaging in FBO services on the leased premises. Therefore, Jet away breachedthe LLA in this regard. The County is entitledto terminate the lease for this breach. In conclusion, the LLA can berescinded for a mutual mistake of facts. The LLA can be terminated by the County for Jetaway's breach infueling airplanes on the leased premises. [FAA Exhibit 1, Item 5, exh. 60, pp. 30-32]

Page 20 of50FAADocketNo.16-08-0l Director's Determination
The Court did order that, "The Land Lease Agreement is terminated." [FAA Exhibit 1, Item 5, exh. 60, p. 41] So, JetAway has no on-airportpresence. Also, as stated, JetAway's noncommercial Land Lease Agreement never allowed for the conduct of commercial operations onthe Airport. [FAA Exhibit 1, Item 1, exh. 1, p. 2] Issue 1 Whether the County has violated grant assurance 5,PreservingRights andPowers. In addition to the proprietary rights and powers reserved to an airport owner, grant assurance 5 prohibits the airport sponsor from giving awayrights andpowers it needs to control and operate the airport. It obligates the sponsorto retain financial and legal control ofairport property to ensure the airport's continued operation as an airport. Two ways in which an airport sponsor might intentionally or unintentionally cede rights and powers is by allowing through-the-fence aeronautical access as discussed herein and by granting rights offirst refusal. 

### An airport sponsor can protect its rights and powers by limiting, mitigating or eliminating the through-the-fence agreements and by negotiating away rights offirst refusaL In some circumstances, an airport sponsor's Federal obligations may require such action. The FAA did express concern overthe Off-Airport Agreement 

### in the 2006 JetAway DD, stating that the Off-Airport Agreementprovides perpetual access and benefits to any successor in interest withoutproviding any controls for the County to negotiate with prospective successors and redefme the terms ofthe agreement. [2006 JetAway DD, pp. 20-21] Inthat determination, the Director did not find the issue rose to a level of noncompliance with grant assurance 5, PreservingRights andPowers, under the circumstances existing at the Airport. The Director is reassured by the Montrose Court Order, discussed above, providing clarity to the limitations ofthe Off-Airport Agreement and by ensuring that commercial aircraft fueling cannot occur onthe noncommercial Land Lease byterminating JetAway's on-airport leasehold. 15 From the record, it appears that important financial considerations from the Off-Airport parties have yet to be resolved. These fmancial concerns are important in regard to the County's obligationto protect its on-airport aeronautical service providers from unjust economic discrimination under grant assurance 22, EconomicNondiscrimination; and to pursue a fmancially self-sustaining rate structure under grant assurance 24, Fee andRental Structure. Grant assurance 24 obligates the airport sponsorto maintain a fee and rental structure thatwill make the airport as self-sustaining as possible under the particular circumstances existing at that airport. [See Applicable Law andPolicy, above] The record reflects some informationrelevant to the County's obligationto impose a fee and rental structure that will make the Airport as self-sustaining as possible under the circumstances. The 2006 JetAway DD notes that JetAway hadnotpaid any fees to the

15 In addition, the Montrose Court Order also eliminated JetAway's ability to advertise that it sells aviation fuel. [FAA Exhibit I, Item 5, exh. 60, p. 42] Page21 of50FAADocketNo. 16-08-01 Director's Detennination County for its access to the Airport, except for a $250 access pennit fee. In the 2006 JetAway DD, the Director noted that the "disparity in [fixed-base operator] fees could affect the Airport's ability to be self-sustaining, in violation ofgrant assurance 24, Fee and Rental Structure." [2006 JetA way DD, p. 21.] Furthermore, the Montrose Court Order observed the following: JetAway never obtainedan accesspermit from the County. Itsposition regarding this issue is inconsistent. On the one hand, JetAway maintains that nobody ever brought the need for an accesspermit to its attention, even though the requirement of an accesspermit is explicitly addressed in the OAA [Off-Airport Agreement]. It has also argued that the OAA itself was the accesspermit. Recently, JetAwtzy tendered to the County $250 for the access fee (the amount specified in the OAA). The County didnotaccept thefee because of this litigation. JetAway never received an accesspermit or an assignment of one from STW [the prior holder ofthe OAA). The County'sposition regarding an accesspermit is also somewhat inconsistent
... [FAA Exhibit 1, Item 5, exh. 60, p. 5] Also in the Montrose Court Order, the Court resolved the issue by ordering: JetAway must apply and ptzy for an accesspermit. Upon application andpayment of the fee, the County is obligatedto execute a written document establishing and granting the access right as aproperty right appurtenant to JetAway's off-Airport parcel. [FAA Exhibit 1, Item 5, exh. 60, p. 29] An annual access fee of$250 appears to be too lowinproportionto the level ofthroughthe-fence business activity and is insufficient to meet the Airport's Federal obligations under grant assurance 24, Fee andRentalStructure, under the circumstances existing at this Airport. However, the record inthis case is insufficientto determine thatthe County has failed to exercise an optionto limit, mitigate or extinguish the Off-Airport Agreement contraryto grant assurance 24. Since grant assurance 24 regards financial selfsustainability, the costs associated with generating appropriate revenue or limiting access is a relevant 'particular circumstance existing at the Airport.' In any event, that is notthe allegation made bythis Complainant. Rather, JetAway states, "The County executed a lease agreement with JCP that contains an option and right offirst refusal." [FAA Exhibit 1, Item 1, p. 27] The JCP Lease does include the following provision: I.03 Rightof FirstRefusal. After the completion of the extended term of the Agreement, theparties will in good faith negotiate mutually agreeable terms for the continued lease andoccupancy of the leased properties andimprovements described herein. However, 

### if mutually agreed upon terms have not been reachedand County has a bonafide written offer from anotherparty itdesires to accept, County can do so 

### if it

firstprovides to Operator the right to continue the agreement by matching the terms of the bonafide written offir. [FAA Exhibit 1, Item 1, exh. 19] The County states that "The right offirst refusal, however, is open ended.... Ifthe [FAA

### J notifies the County

... thatthere is a grant assurance issue with the optionto extend orthe Page 22 of50FAADocketNo. 16-08-01 Director's Determination right offirst refusal

... the County will notify JCP that the offending provisionmust be rectified." [FAA Exhibit 1, Item 3, pp. 29-30] JetAwaypresents this allegation as circumstantial evidence ofthe County's alleged intent to grant an exclusive right to JCP. However, that allegation is inapt and not supported, as discussed below in Issue 3. FAA observes that sponsors might over-grant rights out ofa lack ofdiscipline orforesight, or because theyhad previously over-granted rights to another operator in another agreement. A through-the-fence agreement is an example ofwhere an airport sponsor may have over-granted rights to an airport user. A right offirst refusal for future occupancy ofthe same leasehold is generally ofgreater concernbecause it might limit an airport sponsor's ability to change the use ofproperty in the future, when the public's interest in aviation may demand some other use. This is potentially a violation ofgrant assurance 5. However, the facts in this case are far too speculative for a fmding ofnon-compliance in related to grant assurance 5. To avoid future problems, the County is well advised to negotiate the elimination ofthe right-offirst refusal provision in its existing leases, including the JCP Lease. Considering the above, the Director finds that the County is not in violation ofgrant assurance 5, PreservingRights andPowers. Issue 2 Whether the County has violated grant assurance 29,AirportLayoutPlan. An Airport Layout Plan is a scaled drawing ofexisting and proposed land and facilities necessary for the operation and development ofthe airport. It represents an understanding between the airport owner and the FAA regarding the current and future development and operation ofthe airport. FAA approval ofAirport Layout Plans assists to ensure that federally funded airport development will be safe, useful and efficient. JetAway raises an allegation ofthe County's violation ofgrant assurance 29,AirportLayout Plan, in its Reply. JetAway states: It now appears thatRespondents have also violated GrantAssurance 29 by manipulating the AirportLayoutPlan andconstructing an aircraftparking apron andaccess road for JCP that are notshown as existing orproposed improvements on the AirportLayoutPlan that was in effect when the County made those improvements. [FAA Exhibit 1, Item 5, p. 6] Inits Rebuttal, the County moves to dismiss this allegation, stating that JetAway has not complied with Part 16 requirements for pre-complaintresolution (14 CPR§ 16.21). [FAA Exhibit 1, Item 6, p. I0] Also, inits Answer, the County characterizes the Airport Layout Plan (ALP) process and its significance to compliance. Airport Layout Plans can be

Page 23 of50FAADocket No. 16-08-01 Director's Determination updated at anytime, easily resolving mistakes or omissions. 16 [FAA Exhibit 1, Item 6, pp. 8-9] The FAArecognizes an airport's planning process is dynamic, not static Inits Complaint, and inmore detail inits Reply, JetAway relies heavily on allegations of manipulation ofthe County's airport planning processes. This elevation ofthe planning process is inappropriate. For example, in its Complaint, JetAway focuses inproperty 'identified' for FBO purposes on various draft and final planning documents to form the basis for concluding that the County has granted an exclusive right to JCP, by leasing all 'identified' FBO parcels to JCP. [FAA Exhibit 1, Item I, p. 22] This is a misapplication ofthe role ofthe planning process and the standards for compliance. Montrose County Airport Management correctly states the appropriate role ofthe ALP: It is common for airports to regularly update andreviseALPs basedon changes at the airport. The FAA does not have to approve specific FBO locations andFAA approval of anALP does not require an airport to locate FBO facilities at such locations as may be designated on theALP orprohibit the airport from later changing its designatedsite to another location. [FAA Exhibit 1, Item 6, exh. GG, exh. 5, p. 2] This understanding ofthe need to engage in ongoing planning, in consultationwiththe FAA, recognizes that we expect airport management pursue its Federal obligations and its proprietary interests in an environment ofchange. The Director points to Pacific Coast Flyers, Inc. v. County ofSan Diego, FAA Docket No. 16-04-08 (July 25, 2005) (Director's Determination) (]'acific Coast). InPacific Coast, the complainant alleged that the sponsor's airport developmentplans discriminated against small piston aircrafttypes byreducing accessibility through leasehold development in favor of jetaircraft. [Pacific Coast, DD, p. 32] Specifically, Pacific Coast states: The Director recognizes that the current [Master Plan]for [the Airport], as the County's "vision" for thefuture of the airport, plays a role in its decision-making process, and for development of the airport. Having saidthat, the Director also notes that deviating from the [Master Plan}, to accommodate changing airport conditions or new requirements, is not onlypermissible, but may be necessary and expected. [Pacific Coast, DD, p. 35} A typical violation ofgrant assurance 29 would be more akin to a refusal to cooperate with the FAA on an ongoing planning process, or refusing to mitigate a significant problem arising from an un-planned circumstance at an airport upon a demand from the FAAto do so. InPacific Coast, the Director acknowledgedthat deviation from an airport plan may be necessary and expected. Conversely, the Director has found that refusal to alter an ALP as a means to deny any access may be a violation ofa grant assurance. In Gate 9 v

16 The FAA has previously statedthat it is commonpractice for the FAAto accept interim updates to the ALP, resulting in a 'pen and ink' notation on an existing, approved ALP. @ocaAviation v. Boca Raton AirportAuthority, FAA Docket No. 16-00-10 (March 20, 2003) (Final Decision and Order), p. 24, fu. 80. (Boca). Page24of50FAA DocketNo. 16-08-01 Director's Determination
DeKalb County. FAA DocketNo. 16-05-13 (February 1, 2006) (Director's Determination) (Gate 9), the Director stated: The FAAfully expects thatpursuit of aeronautical development would reasonably includepursuing any necessary andappropriate alteration or addeddetail to an AirportLayoutPlan.

.... Infact, the airport layoutplanningprocess is a tool in planning for appropriate development to meet aeronautical demand

... The Director's role in determining compliance is to determine whether or nota sponsor has aprogram inplace that reasonably adheres to its Federal obligations. While a sponsor is not obligatedto agree to a specific leaseproposal, a sponsor is responsiblefor exercising its rights and powers to be responsive to aeronautical demandtoprovide aeronautical facilities in a manner that is consistentwith its Federal obligations 17 [Gate 9 DD, p. 14) The Director also notes here thatMontrose County is not simply citing its ALP as prohibiting it from accommodating JetAway and walking away, as was the case in Gate 9. Instead, the County 

### has engaged in extensive discussions with JetA way to attempt to accommodate JetAway's preferred location for an FBO, despite a problematic throughthe-fence access point. It has cited actual reasons for not preferring the FBO alternatives at JetAway's location and it has offered an alternative location. 18 The County sunnnarizes its reasons, stating that it
wants anyJetAway FBO operation [to be) on theAirport and itwants the throughthef'ence issues of the Off-AirportAgreement createdbyJetAway, resolvedand addressed. The County submits it is acting consistently with the Director's Determination in DocketNo. 16-06-01. Basedon feasibility studies conductedby the County's expertandthe unjustly discriminatory effect of the Off-Airport Agreement for the on-airport commercial aeronautical activities, the County has identifieda secondFBO location. It is clear from the Director's Determination that an on-airport, non-adjacentsite is acceptable. [FAA Exhibit 1, Item 3, pp. 37-38) It is JetAway thathas constructedthis red herring. JetAway holds this perceptionthatthe ALP process mandates that the County must accept JetAway's off-airport parcel, because it was once depicted on an ALP as a potential future location for an FBO. This is clearly not the case andthe Director believes itis again important to stress that an airport's planning process is dynamic, not static. Considering the above, the Director grants the County's motion to dismiss the allegation ofthe violation ofgrant assurance 29,AirportLayoutPlan. The County's planning has been consistentwiththe requirement that airport development be safe, useful and efficient.

17 The Directordistinguishes the extant case from Gate 9 bynoting that DeKalb did not cite an airport benefit obtainedby adhering to its ALP, nor did itprovide any reasonable option for access and the FAA had independent knowledge ofstymied aeronautical development at DeKalb's airport. 18 This alternative location has in fact been 'identified' in part in draft planning documents submittedto the recordby JetAway, and had beennoted by the Director in the 2006 JetAway DD at fu. 302. See FAA Exhibit I, Item I exh. 12, p. D.l3, exh. 17, p. 2, exh. 26 and Item 5, exh. 43, pp. E.l3 & E.l7. Page 25 of50FAA DocketNo. 16-08-01 Director's Determination
Issue 3

Whether the County has granted an exclusive right for the use ofthe Airportin violation ofgrant assurance 23,

### ExclusiveRights, 49 U.S.C. 

### § 40103(e) and 49 U.S.C. 

### § 47107(a)(4) by means ofland leases to Jet Center Partners (JCP). Specifically, in its Complaint, JetAway alleges that the Respondenthas granted exclusive FBO rights to JCP in conscious and intentional violation ofthe guidance contained in AC No. 150/5190-6 and FAA Order 5190.6A19 [FAA Exhibit I, Item I, p. 22] JetAway presents nine (9) counts ofthe granting ofan exclusive right. UnderIssue 3, we examine the allegations associated withthe express granting ofan exclusive right by the leasing of available property to JCP, counts 1-5, 8 & 9. Counts 6 & 7 are discussed underIssue 4. 

### Express ExclusiveRight CountI 'Identified' on-Airport FBO parcels In its Complaint, JetAway alleges, "The County has leased all Airport land identified for FBO locations to JCP." [FAA Exhibit 1, Item 1, p. 22] The County answers that the allegation is untrue, stating, "the Airport has a 418,698 square-foot on-Airport site identified and available." (the "9-acre Site) [FAA Exhibit 1, Item 3, p. 28 and exh. D] Also, in its Answer, the Countymoves to dismiss the allegation thatthe County has granted an exclusive right, stating:

...as contemplated in the Director's Determination in DocketNo. 16-06-01, the County has identifiedandmade availablefor leasing for FBO operations a 418, 698 square foot on-Airport site [9-acre Site] which is not adjacent to JetAway 's throughthe-fence operation. 

## Jf JetAway wishes to lease this site for FBO operations, the County will issue an RFP. [FAA Exhibit 1, Item 3, p. 4] JetAway contradicts its own argument, stating, "At all times relevant there has been and presently is sufficient landavailable onAirport for a second FBO as the Director notedin his Determination inFAA DocketNo. 16-06-01." [FAA Exhibit 1, Item 1, p. 18] JetAway also states: Land is andhas been available on theAirport for a secondFBO, as the Director noted in his Determination, andthe most logicalparcel of landfor the FBO- now that the County has leasedall available land on the westside of Runway 13131 to

19 The Advisory Circulars aud Orders do not impose Federal obligations. Rather Federal law, graut assurauces and quitclaim deeds impose obligations. FAA Orders provide guidauce to FAA employees in carrying outtheirjobs audresponsibilities. Advisory circulars provide advice to a sponsor in complying with the Federal obligations. The Exclusive Rights AC provides basic informationpertaining to the Federal Aviation Administration's (FAA's) prohibition on the grauting ofexclusive rights at federallyobligated airports. This AC provides guidauce on how au airport sponsor can comply with the statutory prohibition onthe grauting ofexclusive rights. [See AC 150/5190-6 (1. Purpose)] Page 26 of50FAADocketNo.16-08-01 Director's Determination JCP, including both FBOLocations One and Two20

- is the South Tract [on-airport parcel adjacent to the through-the-fence access point] which is adjacent to [JetAway's off-airport parcel and hangar]. [FAA Exhibit 1, Item 1, p. 43] Furthermore, as stated above, JetAway submitted evidence with its Complaint and Reply that shows general aviation development consistentwith an FBO on or near the 9-acre Site. See FAA Exhibit 1, Item 1 exh. 12, p. D.13, exh. 17, p. 2, exh. 26 and Item 5, exh. 43, pp. E.13 & E.l7. This alternative location was evident to the Director inthe 2006 JetAway DD. [See 2006 JetAway DD, page 35, at

### fn. 302] See map ofAirport at FAAExhibit 2. Also JetA way misapplies FAApolicy andprecedent to the standard ofcompliance with regardto exclusive rights. As stated above, "identification" ofparcels for FBO-use is not necessarily relevantto an allegation ofthe granting ofan exclusive right. As cited above from Pacific Coast, planning documents do not necessarily prevent an airport sponsor from pursuing alternative airport benefits or the public's aeronautical interests. Rather, the County is using its planning process to explicitly identify a sitethat is fully onthe Airport. Also, the County is not simply pointing to its ALP, and no other reason, to not favor JetAway's preferred FBO site that is associated with a through-the-fence access point. JetAway's citation ofits submitted planning evidence is contradictory and its application ofthe standard ofcompliance is inapt. Consequently, JetAway's arguments do not survive the County's explicit offering and identification ofan alternate FBO site (9-acre Site). To be in compliance withthe grant assurances, it is not necessary for the County to accept JetAway's most convenient or "preferred" or "logical" parcel on the airport for JetAway's purposes. Moreover, the County has not leased all land, as recognized by the Director in the 2006 JetAway DD and the parties 

### invarious pleadings in this proceeding. Suitability ofidentified Airport FBO parcels The Director notes that JetAway did not raise the issue ofthe 'suitability' ofthe 9-acre Site or any other alternative parcel at the Airport in its Complaint. However, the County may have first raised its willingness to offerthe specific 9-acre Site for FBO development in its Answer. [FAA Exhibit 1, Item 3, p. 2] Therefore, in orderto assist the parties in understanding the role ofcompliance, the Director will address the extensive argument between the parties over the suitability ofthe 9-acre Site as opposedto JetAway's preferred FBO location, adjacent to the through-the-fence access point and JetAway's existing off-airportparcel and hangar.

20 With regard to the so-called FBO Locations I & 2 that comprise JCP's leasehold on the west side ofthe Airport and cited byJetAway, the County denies specifically that it "designated areas as FBO Location I andFBO Location 2. These are designations createdby JetAway." [FAAExhibit 1, Item 3, p. 21] The FAA adds that a draft Master Planning document (Working Paper Three) dated March 2005 and submitted by JetAway in its Complaint depicts both JetAway-designated FBO Locations 1 & 2 as a "Potential Site for FBO Facilities (Hangar, Auto Parking, Aircraft Parking, Office, ETC.)," not 'Sites.' Working Paper Three was drafted prior to JetAway's 2006 Complaint. Itcontemplates that the south end ofthe west side of runway 13/31 could be one FBO. Currently that is the case. JCP's leasehold is relatively cohesive inthe SW quadrant ofthe Airport. [FAA Exhibit 1, Item 1, exh. 12, p. D.13]
Page 27 of50FAADocketNo.l6-08-0l Director's Determination

In its Reply, JetAway initially makes an admission about a potential FBO site, which can be described as against its interest, stating: The County has in fact leased allAirport land identifiedin theAirportMaster Plan andAirportLayoutPlan for FBO locations to JCP. The County does not deny that fact. The County merely argues that the Master Plan andAirportLayoutPlan are notrelevant andthat ithas now identifieda new FBO site on the south endof the Airporteast ofRunway 13131 (the 9-acre Site). This site is, however, marginally suitable for an FBO at best..

.. But the County cannot seriously deny that it has leasedallAirport landto JCP that is suitable for an FBO. [FAA Exhibit 1, Item 5, p. 21] JetAway questions the 'credentials and integrity' ofone ofthe County's airport consultants with regard to the County's assertionthat the 9-acre Site is a suitable site for an FBO. [FAA Exhibit 1, Item 5, pp. 21-23] Inreply, JetAway hires its own consultant, Stantec Consulting, Inc. to compare the 9-acre Site to JetAway's preferred FBO location. [FAA Exhibit 1, Item 5, p. 23] JetAway characterizes its own consultant's fmdings in its Reply, stating: Stantec concludes that the 9-acre site 

### is marginallysuitable for an FBO, and theproposedJetAway site is clearly thepreferredlocation.... The 9-acre site is truly marginal for FBO operations andwouldcreate serious safety issues at the Airport

.... The County has indeed leased all of the Airport land that is suitablefor an FBO to JCP in violation of its Federal GrantAssurances. [FAA Exhibit 1, Item 5, pp. 23-24] In fact the Stantec Report states: The 9-Acre andJetAway FBO Sites have been reviewed forphysical capacity, operational andsafety-relatedconcerns. Both sites can meet the minimum standards of the airport for an FBO

... Basedon the overall factors, including sqfety andoperations, the JetAway FBO Site is thepreferredlocation for thefollowing reasons:

From an air side access standpoint, the JetAway site is centrally located off the main runway for Montrose RegionalAirportwith very short taxi distances. The 9- Acre site is currently verypoorly located for safe access from Runway 17/35 and for Runway 31 arrivals. Safo access to the airfield is a significant issue for an FBO operation. The JetAway site isfar superior in overall air side access. Landside access to the JetAway site is already establishedand is operational. The 9-Acre site will require a considerable amount of investment to construct the roadway andutility systems to the site, alongwith clean-up of the entrancefor businesspurposes. [FAA Exhibit 1, Item 5, exh. 68,p. 1 0]

Page 28 of50FAADocketNo.l6-08-01 Director's Determination

In its Rebuttal, the County comments onthe Stantec report, stating: The County notes the comments of the StantecReport on thepotential operational issues for the 9. 612 acres. There is, however, aprotocol for operating on afield with no control tower. Every commercial airliner usingRunway 17135 crosses Runway 13131. 

## If JetAway foeledthe commercial airlines, itsfuel trucks wouldhave to cross Runway 13131. 

## If aircraft crossingRunway 13/31 was a significantsafety issue, the FAA wouldrequire theAirportto close the runway or builda taxiway aroundthe runway.

The Stantec report states that the location designated byJetAway is thepreferable FBO location. The County, however, has no intention of relocating Taxiway FP; thepreliminary estimate of the expense is $1,555,000.00

... or to otherwise impair the ability to extend Taxiway E to the north, merely to accommodate JetAway's through-the-fence FBO operations. Anyaccommodation of JetAway 's through-thefence FBO operations wouldcreate even more grantassurance issues
... [FAA Exhibit 1, Item 6, pp. 17-18] Also, Stantec states its preference for the JetAway FBO Site with regardto the 9-acre Site, because the 9-acre Site is not immediately available to accommodate larger aircraft. However, onthe same page ofthe follow-up letter, Stantec characterizes the current JetAway site geometry, stating: [the] distancefrom the centerline of Taxiway E to theproperty line or the existing building face [ofJetA way's existing hangar is] approximately 83feet, or 46.5 feet short of the requireddistancefor anAirportDesign Group IVtaxiway OFA (larger aircraft). TaxiwayE is designated on the signedALPas a Group IVtaxiway. Remedies are to move Taxiway E topreserve Group IVdesignation, process a modification to standard for a modified Group IIIdesignation (smaller aircraft), or reclassify the taxiway as a Group II taxiway (even smaller). [FAA Exhibit 1, Item 5, exh. 73, p. 2] Stantec offers a downgrade to a Group II taxiway as an option for the JetAway site for the future, and observes that the 9-acre Site is planned to have Group II standards, as well. [FAA Exhibit 1, Item 5, exh. 73. p. 2] Inthe case ofthe 9-acre Site, the Director observes that plans can change and new infrastructure can be builtto meet actual needs ofthe user's aircraft. Also, inthe case ofthe JetA way site, infrastructure can be removed and replaced and enhanced, or downgraded. These are alljudgments that an airport sponsor should make to pursue the public's aeronautical interests in its airport and to prudently manage the sponsor's resources and manage risk.

21 Taxiway E is thetaxiway immediately adjacent to JetAway's existing off-airport hangar. TaxiwayE provides airport access to all through-the-fence users ofthe Airport. Page 29 of50FAADocketNo.16-08-01 Director's Determination The County answers by stating: The County, however, does not have an obligation to grantJetAway an FED operation at the location dictated byJetAway, on the terms dictated byJetAway and withoutan RFPprocess. JetAway does nothave the right to substitute its site selectionjudgment for that of the County. The County's obligation is to ensure that JetAway has access to theAirport to conduct commercial aeronautical activities. The County has satisfiedthis obligation bydesignating the 9.612 acre site as a secondFBO location. [FAA Exhibit 1, Item 6, p. 4] The Part 16 process is notthe appropriate venue to redraft or update an ALP. Furthermore, the Complainant, JetAway carries the burden ofproofofa grant assurance violation. To succeed inits allegation that the County has granted an express exclusive right, JetAway must showthat there isno other available and suitable site for an FBO at the Airport. Before the County's explicit offering ofthe 9-acre Site inits Answer, JetAway had stated: Landis andhas been available on theAirport for a secondFBO, as theDirector notedin hisDetermination, andthe mostlogicalparcelof land for the FBO

... is the South Tract [on-airportparcel adjacentto the through-the-fence access point] which is adjacent to [letA way's off-airportparcel and hangar]. [FAA Exhibit 1, Item 1, p. 43) Withregard to the potential operations ofthe FBO sites, JetAway questions the safety of the typical route ofaircraft from the most active runwayto the 9-acre Site, requiring runway crossings. However, here the FAAis unconvinced thatthe 9-acre Site's location onthe airfield is so 'unsafe' as to make the site unsuitable. And in fact, Stantec only makes that statement conditionally and in comparison to the JetA way Site. In a follow-up letter to JetAway, Stantec states, "The 9-acre Site is unsuitable for FBO purposes ifthe following is considered: The development and operation ofthe 9-acre Site versus the JetAway FBO Site potentially introduces significant safety andoperational issues." [FAA Exhibit 1, Item 5, exh. 73, p. 2] The County equates this taxi route, objected to by JetAway, to the need for JetAway's ground vehicles to cross the same runway to get to the Airport's terminal area, associated with JetAway's preferred site. This also raises the issue ofvehicle incursions. The County observes thatregular movement ofground vehicles across a runway also potentially introduces significant safety and operational issues. [FAA Exhibit I, Item 6, pp. 17-18) The FAAis very concerned about the prevalence ofvehicle andpedestrian incursions onthe airfield. The County sites Roadhouse Aviation v Tulsa, FAADocket No. 16-05-08 (June 26, 2007) (Final Decision and Order) (Roadhouse), quoting: The exclusive rightsprohibition does notguarantee an airport user the right to acquire a specificpiece of privateproperty, or access to a specific location on the airport. It does ensure that airport users have the right to access the airport to conduct commercial aeronautical activities. [Roadhouse, FAD, p. 23)
Page 30 of50FAADocketNo. 16-08-01 Director's Determination

The FAAnotes that the final FAA-approved ALP, prepared by Barnard Dunkleberg & Co. (the County's existing airport planner/consultant) depicts the 9-acre Site as available for an FBO location. [FAAExhlbit 1, Item 9, exh. VV] JetAway's argument regarding the County's leasing ofall land 'identified' or 'suitable' for anFBO location is inconsistent, unconvincing, and fails to prove thatthe County's Federal obligationrequires it to accept JetAway's preferred location as an FBO site. ExpressExclusiveRights Counts 2-5 JetAway cites circumstances ofthe Airport and actions ofthe County to show alleged intent to grant an exclusive right in support ofits allegation: Count 2. The County has leasedmoreAirport land to JCP than required for itFBO. Count 3. The County has leasedAirport landto JCP without any immediate need for the landbeingdemonstrated anddocumented byJCP, andthatJCP will not be able toput intoproductive use within a reasonableperiodof time. Count 4. The County executeda lease agreement with JCP that contains an option and right of first refosal. Count 5. The County has manipulatedthe Minimum Standards toprotectJCP's exclusive rights andinterests. JetAway presents these additional arguments as circumstantial evidence in support ofits central allegation that the County has leased all parcels 'identified' for FBO-use to JCP. JetAway cites FAA Order 5190.6A incorrectly, herein. FAA Order 5190.6A is internal FAA guidance. [See Applicable Law and Policy Section, above} Itinstructs FAA employees as to the ways in which an airport sponsor might intentionally or uuintentionally grant an exclusive right. It does not create separate prohibitions. Inany case, this circumstantial evidence is belied bythe County's offer ofthe 9-acre Site for FBO use, as discussed above. The FAA does not accept the premise that the County has forfeited its ability to accommodate a second FBO at the Airport. Counts2 & 3 Withregard to counts 2 and 3, the Director notes that these are not independent allegations ofa granting ofan exclusive right. JetAway states: The County has leasedmoreAirport landto JCP than required for its FBO
.... The County has leasedAirport land to JCP without any immediate need for the land being demonstrated anddocumented byJCP, andthatJCP will not be able toput intoproductive use within a reasonableperiodof time. [FAA Exhlbit 1, Item 1, pp. 24 & 26]

Page 31 ofSOFAADocketNo. 16-08-01 Director's Determination The County generally denies all ofthe allegations, stating: JetAwayprovides no evidence thatJCP leases more landthan it requires. That is really a subjective determination byJCP.
.. .. The County'sperception is thatJCP needs the land it is leasing. SecondJetAway requested513,513 in its [2005 FBO Proposal]. In its identicalDecember 2005 andNovember 2007proposals [FBO proposal and settlement proposal], it requested459,903 square foet for the onAirportsite. [FAA Exhibit 1, Item 3, p. 28] Also,the County cites FAA Part 16 precedent. InBisti Aviation v Farmington, FAA Docket No. 16-07-10 (December 4, 2007) (Director's Determination) (Bisti), the Director stated: Respondent correctly identifies that it is not requiredunder the Federal grant obligations to independently assess whether a tenant'sproposal for future leased property is factual or immediately neededby theproponent toprovide aeronautical services. No grant assurance specifically requires that a demonstrated immediate need beproven before an airport approves an assignmentof a lease. [Bisti, DD, p. 18} As stated, JetAway's extensive arguments regarding the size, layout, improvements, financing andprocess ofJCP's leasehold are not sufficientto establish the grant ofan exclusive right when the County does have the capacity to accommodate a second FBO on the Airport and has offered the 9-acre Site. Even ifthe FAA accepts the facts regarding JCP's use ofits leasehold, the County was not grant-obligated to require JCP to demonstrate an immediate need for the property it was leased for its FBO operations. While JetAway elevates language in Order 5190.6A to a level comparable to the County's grant assurance obligations; this is not accurate. Nonetheless, JetAway has made no showing that the County leased more Airport land to JCP thanrequired for its FBO. JetAway has also failed to showthat the County has leased Airport land to JCP without any immediate need for the landbeing demonstrated and documented byJCP, and that JCP will not be able to put into productive use within a reasonable period oftime. Count4 With regard to count 4, this right offirst refusal is not for additional property that could be used for a competitive FBO, butrather an option for extension ofa leasehold for currently occupied property. It does notremove property otherwise currently available for a second FBO. [FAA Exhibit 1, Item 1, exh. 19] Based uponthe Director's analysis inIssue 1, JetAway's allegationthat granting an option and right offirst refusal to JCP is a prohibited exclusive right is wrong. Even ifthe FAA accepts the facts regarding JCP's right offirst refusal, the FAA cannot conclude that the County has granted an exclusive right. The right offirst refusal at issue here is related to future occupancy ofa current leasehold andnotrelated to the leasing ofall suitable parcels onthe airport.

Page 32 of50FAA DocketNo. 16-08-01 Director's Determination
CountS JetAway states, "The County has manipulated the Minimum Standards to protect JCP's exclusive rights and interests." [FAA Exhibit 1, Item 1, p. 27] Again, count 5 does not stand on its own as a grant assurance violation, because as JetAway admits "land is and has been available onthe Airport for a second FBO, as the Director noted inhis Determination

..." [FAA Exhibit 1, Item 1, p. 43] JetAway goes onto opine that, 

### "the most logical parcel ofland for the FBO

- now that the County has leased all available landonthe west side ofRunway 13/31 to JCP, including both FBO Locations One and Two22

- is the [on-airport parcel adjacentto the through-the-fence access point] which is adjacent to [JetAway's off-airportparcel]." [FAA Exhibit 1, Item 1, p. 43] The Respondent goes onto state that, "

...the area designated by JetAway as FBO Location 1 does not satisf'y even the minimum land area under the oldMinimum Standards (125,000 sq. 

### ft)." [FAA Exhibit 1, Item 3, page 21] JetAway's 2005 FBO proposals and its November 2007 settlement offerupon which itis basingthis Complaint request no less the 450,000 sq. 

### ft. ofon-Airport leasehold. [FAA Exhibit 1, Item 5, p. 30] JCP's successful 2005 FBO proposal requested 300,000 sq. 

### ft. [FAA Exhibit 1, Item 1, exh. 14, p. 1 0] The record shows that bothFBO proposers requested no less than 300,000 sq. 

### ft. ofonAirport leasehold and up to over 500,000 sq. 

### ft. So, it is reasonable for the Countyto raise its minimum square footage requirementto a mid-point of350,000 sq. 

### ft. This is what the County did when it adopted its 2005 Minimum Standards. [FAA Exhibit 1, Item 1, exh. 21] Furthermore, the property onthe west side ofthe south end ofrunway 13/31 (now occupied by JCP) does not appearto be large enough to accommodate two FBOs ofthe smallest size requested. JetAway submits evidence in its Complaintthat shows the leaseholds inthat quadrant to add up to only 436,280 sq. 

### ft. [FAA Exhibit 1, Item 1, exh. 29] It appears prudentthat the County, at the time, negotiated with JCP to occupy a reasonably compact and contiguous FBO facility, smaller than any on-airport leasehold that JetAway has ever requested from the County. JetAway's inference, in hindsight, that the southwest quadrant could have been expandedto shoe-hom intwo FBOs of350,000 sq. 

### ft. eachis unsupported and rejected. [FAA Exhibit 1, Item 5, exh. 73 & Item 7]

22 With regard to the so-called FBO Locations I & 2 that comprise JCP's leasehold onthe west side ofthe Airport and citedbyJetAway, the County denies specificallythat it "designated areas as FBO Location I andFBO Location 2. These are designations createdby JetAway." [FAA Exhibit I, Item 3, p. 21] The FAA adds that a draft MasterPlarming document (Working Paper Three) dated March 2005 and submitted by JetAway in its Complaint depicts both JetAway-designated FBO Locations I & 2 as a

**"Potential~** for FBO Facilities (Hangar, Auto Parking, Aircraft Parking, Office, ETC.)," not 'Sites.' Working Paper Tbree was drafted prior to JetAway's 2006 Complaint. It contemplates that the south end ofthe west side of runway 13/31 couldbe one FBO. Currently that is the case. JCP's leasehold is relatively cohesive in the SW quadrant ofthe Airport. [FAA Exhibit 1, Item 1, exh. 12, p. D.l3] In any case, it is JetAway, not the County orthe FAA, that applies such importance to the details ofdraft planning documents. The FAA does not see such importance or relevance.
Page 33 of50FAA DocketNo. 16-08-01 Director's Determination
Even ifthe Director assumes the facts presented byJetAway under count 5, they do not add up to a grant assurance violation. Rather, the facts show that the County was being responsive to the stated square footage needs ofresponders undertheir RFP. At worst, it might reveal an interest to prevent a competing leaseholder from blocking the on-airport FBO's potential contiguous growth inthe southwest quadrant ofthe Airport. In SelfServe Pumps v Chicago Executive Airport, FAADocketNo. 16-07-02 (Director's Determination Issued March 17, 2008), the Director stated, "motive alone is insufficient for a finding ofan exclusive right or grant assurance violation." [Self-Serve Pumps, DD, p. 31] As previously stated, the fact that the County is notproviding a parcel to JetAway, which inJetAway's opinion, is the most convenient, logical or preferred does not necessarily meanthat the County is manipulating the Minimum Standards to protect JCP. OtherExclusiveRightsArguments 8 & 9 JetAway makes observations to support its circumstantial case against the County by citing language in Federal law and policy including a specific exceptionprovided by the law. Count 8. The only exceptionthatwould allowJCP to provide exclusive FBO services at the Airport does not apply in these circumstances. [FAA Exhibit 1, Item 1, p. 47] Count 9. The County's grant ofexclusive rights to JCP has enabled JCP to charge inflated prices to the detriment ofthe public and the County. [FAA Exhibit 1, Item 1, p. 48] Regarding count 8, as cited byJetAway, Federal lawhas always provided an exception to the prohibition ofthe granting ofan exclusive right. The law states: Apersonproviding, or intending toprovide, aeronautical service to thepublic will not be given an exclusive right to use the airport, with a rightgiven to only one foced-base operator toprovide services atan airportdeemednot to be an exclusive rightif-

(A) the right wouldbe unreasonably costly, burdensome, or impractical for more than one fixed-base operator toprovide the services; and (B) allowing more than onefixed-base operator toprovide the services would require reducing the space leased under an existing agreement between the one fixed-base operator andthe airport owner or operator. [49 U.S.C 47107(a)(4)] The County concedes the pointto JetAway, stating, "there is no exception that allows [the County] to deny a second FBO

... Further, the County has not and will not deny a second FBO operation onthat basis." [FAA Exhibit 1, Item 3, pp. 39-40] Accordingly, as to count 8, there is no grant assurance violation as the County has committed to permit a competing FBO to locate on the Airport and specifically onthe 9 acre parcel. Regarding count 9, JetAway states, "One ofthe many results ofthe County's

... [alleged] refusal to allow JetAway to compete with JCP atthe Airport is that JCP is able to charge inflated fuel prices." [FAA Exhibit 1, Item 1, p. 49] JetAway provides no evidence in its Complaint ofhigh fuel prices at the Airport. The County answers that it "monitors the fuel prices at the regional airports and has not found any facts or evidence to support Page 34 of50FAA DocketNo. 16-08-01 Director's Determination JetAway's claim that JCP's fuel prices are higher than all regional airports." [FAA Exhibit I, Item 3, p. 40] JetAway supplies evidence in its Reply, presenting an Aimav.com internet page showing thatjet fuel prices atthe Airport in the May-July 2008 timefrarne are more expensive thanmost airports within the 65 miles, but less expensive than, or competitive with, prices at Telluride Regional Airport, Grand Junction Regional Airport and Garfield County Regional Airport. [FAA Exhibit I, Item 5, exh. 71] JetAway's evidence ofhigh fuel prices atthe Airport does not convince the Director that the County has granted an exclusive right. The evidence is not conclusive withregard to a finding ofthe granting ofan exclusive right. Considering that the evidence shows that Grand Junction's prices are higher and that many ofthe airports with seemingly lower fuel prices list only one fuel provider at the airport in question undermines the relevancy ofthe evidence. Also, the FAA has noted the existence ofrelatively high fuel prices at airports with more than one fuel retailer, and has recognized that an airport sponsor has many options to monitor and address high fuel prices.23 However, comparatively higher fuel prices may signal to a sponsorthat it should pursue competition. Issue 3 Conclusion For the reasons discussed herein, the Director finds that the County has not granted an exclusive right by means ofits FBO leases, or inthe marmer by which it has identified FBO locations onthe Airport, or by the suitability ofthose locations. The County is under no obligationto accept JetA way's opinion ofthe most convenient or "preferred" or "logical" parcel onthe Airport for JetAway's business interests. The County has offered a specific 9-acre Site expressly for FBO development. As stated by the County, the County retains the proprietary right and responsibility to plan for the future ofthe Airport. The County'sproprietary rights do include the protection ofthe County from legal liability, litigation costs, and the loss ofrights and powers by means ofa problematic through-thefence agreement. Finally, as stated, JetAway's off-airport business interests are not protected by the County's Federal obligations. JetAway is equivalentto any proponent of a second FBO at the Airport andis subjectto the reasonable planningjudgments ofthe County as to where such FBO may be located. Considering the above, the Director finds that the County is not inviolation ofgrant assurance 23, Exclusive Rights, by means ofthe distribution ofAirportparcels suitable for FBO activities.

23 SelfServe Pumps states, "High foe/ prices or highprofitmargin are notsufficient to make afinding that an airportsponsor is non-compliant. TheAirportmay,justly, choose to take any of several actions to address fuelprices
. ... The Complainant's argument that market conditions

... require [the sponsor] to accede to the Complainant's specific businessplan

... is unconvincing. " [SelfServe Pumps. DD, p. 30) Page 35 of50FAADocketNo. 16-08-01 Director's Determination
Issue 4 Whether the County's actions with regard to JetAway's proposal for a FBO business at the Airport constitute the constructive granting ofan exclusive right by means of an unreasonable denial in violation ofgrant assurance 23, Exclusive Rights, 49 U.S.C. § 40103(e) and 49 U.S.C. § 47107(a)(4). Count 6. The County has imposed unreasonable requirements onJetAway as a condition to any consideration ofJetAway's FBO proposals. [FAA Exhibit 1, Item 1, page 30] Count 

### 7. The County has imposed unreasonable and discriminatory requirements for an FBO agreement with JetAway. [FAA Exhibit 

### 1, Item 

### 1, page 

### 39] Airport sponsors are prohibited by grant assurance 22 from imposing unreasonable restrictions and from unjust economic discrimination against aeronautical service providers proposing to operate aeronautical businesses. In the past, the FAAhas found that unreasonable restrictions, delay orunjust discrimination could constructively grant a prohibited exclusive right. Generally, however, the Director considers these allegations under grant assurance 22 as a test for unreasonable terms, as a prerequisite for the finding ofa constructive grant ofan exclusive right. 24 Also, as discussed above, these are positions considered bythe parties in confidential mediation (some ofwhich JetAway admits hadbeenresolved). As the Director noted above, the confidentiality ofthe mediationhas been breached and the documents, including the proposed settlement agreements are now inthe public domain. Nonetheless, the Director will not opine onthe parties' conduct, positions, or alleged FBO restrictions because these negotiations were not part ofthis Part 16 proceeding, butrather involved an ongoing exchange ofproposals and counter-proposals in mediation. JetAway admits and acknowledges this. The analysis and discussion, however, under Issue 

### 4 herein, will attemptto provide clarity in regard to the County's obligations under grant assurances 22 and 23. JetAway states, "the County has never really consideredthe actual FBO agreements proposed by JetAway, and has insisted onunreasonable conditions and concessions from JetAway, One Creative Place and their individual owners." [FAA Exhibit 1, Item 1, p. 30] The County states that it does have reasonsfor declining to pursue JetAway's preferred location ofits FBO, stating that the County:
wants anyJetAway FBO operation [to be] on the Airport and itwants the throughthe-fence issues of the Off-AirportAgreement createdbyJetAway, resolvedand addressed. The County submits it is acting consistently with the Director's Determination in DocketNo. 16-06-01. Basedonfoasibility studies conductedby the County's expert andthe unjustly discriminatory effect of the Off-Airport Agreement for the on-airport commercial aeronautical activities, the County has identifieda secondFBO location. It is clear from the Director's Determination that an on-airport, non-adjacentsite is acceptable. [FAA Exhibit I, Item 3, pp. 37-38]

24 See SelfServe Pumps, FAA DocketNo. 16-07-02 p. 28. Page 36 of50FAADocketNo.16-08-0l Director's Determination As discussed above, the Director fmds that the operational and feasibility issues, cited by the County, do not obligate the County to consider JetAway's preferred FBO locationto the exclusion ofthe County's preferred FBO location. But, in additionto the County's legal and FAA compliance concerns, mentioned above, the County also cited financial concerns, stating: The County sought to accommodate JetAway 's request by resolving the through-thefence issues andwithout exposure for the County's residents andthe expense of forther litigation. The County was unable to do so. By identifYing andmaking (llJailable the 9.612-acre site, the County is confirming itsposition from the onset: There is no exclusive right. [FAA Exhibit 1, Item 3, pp. 4-5] The County's proprietaryrights allow it to provide a competitive FBO opportunity in a mannerthat protects the County from legal liability and cost, and that protects its ability to continue as a going concem.25 As stated, the County's grant assurances do notrequire it to acconunodate JetAway's preferred location onthe Airport. The County has reasonto prefer a locationthat is not adjacent to the through-the-fence access point, like JCP's FBO location. JetA way has demonstrated a record oftransgression with regard tofueling, trespassing,26 adhering to the Minimum Standards, and advertising services itis prohibited from offering. Afterthe Respondent took action to protect its proprietary rights and seek a legal injunction against JetAway, JetAway ignored the Court's temporary restraining Order and was found to be incontempt. [See Montrose Court Order, FAAExhibit 1, Item 5, exh. 60] Whether or notJetA way's off-Airport interests are protected by contract, they are not protected bythe County's grant assurances. But the County's grant assurances do protect its on-Airport tenants. Admittedly, this affects the County's decision-making with regard to potential airporttenant proposals and JetAway's proposal to be adjacent to its throughthe-fence operation and off-Airport customers. Other

### than the County's original consent to the Off-Airport Agreement, this situation is not ofthe County's making. Entities wishing to conduct conunercial aeronautical activities are wise to make arrangements to lease airport property, reasonably offered by an airport sponsor, and should not seek special access to off-airport operations or customers, since those operations orcustomers are notprotected by the sponsor's grant assurances. The evidence inthe record shows that

25 In SelfServe Pumps v Chicago Executive Airport, FAA Docket No. 16-07-02 (Director's Determination Issued March 17, 2008), the Director stated, "In the end, the evidencepresentedby the Complainant is insufficient to eclipse theAirport'sproprietarydiscretion to make management decisions in the best aeronautical interests of thepublic, balancedwith the best business interests of theAirport as a going concern." [SSPumps, DD, p.25] 

### ''In late February/early March of2006, JetAwaybegan excavation onAirportproperty withoutthe County's permission. Atthe County's direction, JetAway ceased construction and filled the area thathad been excavated. However, JetAway then filed a third lawsuit, seeking an injunction against the County in orderto continue construction on the EastRarup Area ofthe Airport's property. In November of2006, the District Court ofMontrose County denied JetAway's request, concluding that JetAway "didnothave a probability of success on the merits." [FAA Exhibit 1, Item 5, exhibit 60, p. 23] Ina decision dated June 30, 2008, the District Court ofMontrose County found that JetAwaytrespassed on County property when it directed workers to begin construction without the County's permission. [FAA Exhibit I, Item 5, exhibit 60, p. 32] Page 37 of50FAA Docket No. 16-08-01 Director's Determination One Creative Place and JetAway have common ownership. The evidence in the record also shows that One Creative Place LLC and KMTJ Fuel LLC, are located atthe same location, One Creative Place, Montrose, Colorado. Accordingly, the County may consider JetAway, One Creative Place and KMTJ Fuel as one entity?7 JetAway presents 11 sub-counts, alleging that the County has insisted onunreasonable terms or conditions upon JetAway's preferred FBO location, its future construction and operation that is adjacent to its off-airport location, and the through-the-fence access point. [FAA Exhibit l, Item 1, pp. 30-47] JetAway's Off-AirportInterests andEntities are notProtectedby the GrantAssurances In sub-counts 6a and 6d, JetAway argues thatthe County is unreasonably sanctioning its off-Airport interests, stating: The County has adamantly refused to consider anyproposal for JetAway toprovide FBO services on theAirportunless One Creative Place wouldagree to unreasonable restrictions on the use of itsprivatepropertyoff the Airport, and relinquish some of its rights as a [off-Airport] Part Owner under the Off-Airport Agreement. [FAA Exhibit 1, Item 1, p. 30] The County has insistedon a cross-breachprovision
... whereby a breach of the Off-AirportAgreementby One Creative Place, or any of its affiliatedentities or lessees, wouldconstitute a breach of JetAway 's FBOAgreement. [FAA Exhibit 1, Item 1, pp. 35-36] It is again important to note that as a general principal, the FAAdoes not support agreements that grant access to the public landing areaby aircraft stored and serviced off-site on adjacentproperty. Through-the-fence arrangements are disfavored bythe FAA and can place an encumbrance upon the airport property. Thus reducing the airport's ability to meet its Federal obligations. Accordingly, under its grant assurances, the County is free to act to limit, mitigate, or eliminate the effects ofthe Off-Airport Agreement. [See 2006 JetAway DD] One way to mitigate the effects ofthe Off-Airport Agreement is to limit off-Airport commercial activity, such as the leasing ofaircrafthangar storage. As stated herein, FAA precedent allows the County to view One Creative Place and JetAway as the same entity. It appears thatthe County is acting within its proprietary rights, within its Federal obligations and is taking action necessary under grant assurance 5, PreservingRights andPowers.

27 In Jack H. Cox v. the Citv ofDallas. FAA DocketNo. 16-97-02, (October 24, 1997) (Record of Determination) the FAA found that "The City ofDallas, by amending its lease with RedbirdDevelopment Corp. (RDC) to prohibit Jack H. Cox or any entity in which he has an interest from leasing, subleasing or participating inthe use ofthe RDC-Ieased premises, is not violating its federal obligations" withregard to grant assurance 22, EconomicNondiscrimination. [See Record ofDetermination, 16-97-02, page 17] Also, in SeaSands Air Transport, Inc. v. Huntsville-Madison County Airport Authoritv. FAA DocketNo. 16-05- 17 (August 28, 2006) (Director's Determination), the FAA found that the actions andbehavior ofa universal agent, such as the president ofa company, are attributable to the business entity over which the universal agent has control." [See Director's Determination, 16-05-17, pages 21, 23] Page 38 of50FAADocketNo.l6-08-0l Director's Determination
The CountyMayProtectItself againstLegalLiability & the CountyDoesNotHave toAcceptDonatedLand

• Under sub-counts 6b, 7b(2) and 7c, JetAwayraises instances inwhichthe County is reluctant to expose itselfto legaljeopardyfrom JCP. JetAway alleges that it is unreasonable for the County to pay heed to potential legaljeopardy that may pertain to the County ifthe County were to take actions against the interests ofits on-Airport FBO, JCP and that are preferred by JetAway, including acceptance of JetAway's off-Airportparcels. Sub-connt 6b involves the County seeking indemnification from JetAway withregard to claims byJCP. JetAway states: JCP has

... among other things, continually threatenedthe County with escalating civil litigation. JCP suedthe County in the Montrose County District Court in March 2006 for breach of the JCP FBOAgreement, andthat claim is stillpending, butJCP continued to threaten additional claims throughout 2006 and2007. [FAA Exhibit 1, Item 1, p. 32] JetAway appears to admit some degree oflegalliability above, even ifJetAway presumes it to be small. The County cites its current indenmification with JetAway with regard to the existing Off-Airport Agreement. [FAA Exhibit 1, Item 1, exh. 2, p. 6] JetAway states that this indemnificationthat the County is requesting is not required ofJCP. Clearly, the circumstances are different. The record indicates that the County has considered numerous options to accommodate JetAway, including leasing land adjacent to the through-the-fence access point used byJetAway and its tenants and/or accepting donated land with various leaseholds and encumbrances. [FAA Exhibit 1, Item 1, exhs. 5 & 6] These situations are not similarto the landlord/tenantrelationship set out in the JCP Lease. Furthermore, JetAway's rights underthe Off-Airport Agreement are not protected by the County's grant assurances, butJCP's use ofthe Airport is protected. Also associated withthe speculative possibility ofdonating land, discussed inmediation, is the issue ofthe Off-Airport Agreement's restrictive covenantrunning withthe land, discussed under sub-count 7b(2). The restrictive covenant in question allows specific activities andcouldlimit activities ofthrough-the-fence operators. [FAA Exhibit 1, Item 1, exh. 2, p. 9] JetAway quotes the County's allegedly unreasonable negotiating position from its last proposed settlement agreement: In no event, however, can JetAway or any of its affiliatedor relatedentities or persons commence anyFBO operations
... until there has been afinal judicial resolution of whether restrictive covenantsprohibitFBO use of property donated to theAirport because suchproperty was formerly included in the aerospaceparkand subject to such restrictive covenants. [FAA Exhibit 1, Item 1, p. 42] It appears that the County was reluctant to accept a legal liability from accepting donated land from JetAway that contains a disputed restrictive covenant running withthe land that
Page 39 of50FAA DocketNo. 16-08-01 Director's Determination
would be owned by the County. 28 In fact, the Montrose Court Order, discussed above, has determined that the restrictive provision actually prevents the vending ofaviation fuel from those properties. This would appear to be a unique 'double-edged' problem for JetAway. But it is rightfully JetAway's liability to bear, even ifsmall. JetAway states that JCP has threatenedto sue the County over breaking the restrictive covenant by allowing its newly 'owned' land to beused for purposes actually prohibitedbythe restrictive covenant running withthe land and contained inthe Off-Airport Agreement. As stated above, this idea ofdonating land is too speculative for the Directorto include in a finding ofthis Part 16 proceeding as it was part ofnegotiations in mediation and not part ofthis proceeding. However, the County is permittedto protect the Airport account from financial loss due to legaljeopardy. Such a provision protects the public interest in civil aviationbyprotecting the Airport's users from having to financejudgments against the County. Indemnification and otherprotections associated with the acquisition ofoffAirport property interests that contain restrictions, including personal guarantees, appear to be acceptable andjustifiable. With regard to sub-count 7c and the various 'land donation' proposals, the County states, "the County would agree that a donation or exchange oflandis not feasible in view of VOR, OFA, geographic, environmental and restrictive covenants issues that pertainto such proposal." [FAA Exhibit 1, Item 3, p. 37] The grant assurances do notrequire that the County alter its property map to acceptproperty as a donation, either as fee-simple or as a long-term lease, in order to accommodate the interests ofa party that wishes to preserve its investment inits off-airport facilities. The FAA would be concerned that accepting such a donation, swap, lease-leaseback or other unusual circumstance under the legal circumstance described in this sub-section could impose some significant legal and/or financial liability onthe County. Failure to protect itselfmight be evidence thatthe County has failed to preserve its rights and powers, as requiredby its grant assurance 5. As stated, it appears that the County has determined that it is imprudent for it to proceed with such a scenario, choosing, insteadto reasonably say 'no' to this specific proposal and to offer an alternative solution. In someSub-Counts theParties haveReachedResolution JetAway raises issues in sub-counts 6c, 6fand 7d in whichthe parties appear to have reached resolution in a mannerthat accommodates JetAway's position or allows for the accommodation at the time ofimplementation. The Director reminds the parties that the test for compliance is what a sponsor actually does, not what a document may state. Rarely are minimum standards, leases or plans so perfectly crafted as to be above criticism during the life oftheir applicability. This extant case has illustrated this long-standing principle?9 As stated, the Director will not make a detailed analysis ofeach particular

28 Proposals included a fee simple transfer as well as longterm lease. Forpurposes ofGrant Assurance 4, Good Title, a longterm lease satisfies the goodtitle ownership requirement. 29 As stated in SelfServe Pmnps, "the FAA does not judge an airport sponsor simply by theplain language of

agreements or minimum standards, since such documents are rarely soperfectly craftedas to avoidall possibilities for inconsistency overtime, changingcircumstances andinterpretations. Rather, the FAA Page 40 of50FAADocketNo. 16-08-01 Director's Determination negotiating stance takenbyparties in confidential mediation in hindsight, with imperfect information. While the Director will not opine onthese particular issues, he will attempt to provide clarity inregardto the County's obligations under the grant assurances by offering the following observations.

• At sub-count 6c, JetAway raises the issue ofFBO management qualifications. [FAA Exhibit 1, Item 1, page 38] · Withrespectto FBO management qualificationrequirements to be imposed upon JetAway'sproposed FBO, the parties submit identical sections intheir respective proposals ofNovember 2007. Bothdraft settlement agreements state, "JetAway will obtain and maintainprofessional, experienced FBO management for its FBO, which management

### will be subjectto review and approval ofthe County, whichreview and approval will not be unreasonably withheld." [FAA Exhibit 1, Item 1, exh. 5, par. 6 & exh. 6, par. 3] This is not a matter ripe for FAAreview, since the County has not exercised any review andhas not rejected any FBO management for any reason. The provision appears to be customary, typical and reasonable.

• At sub-count 6f, JetA wayre-raises the issue ofthe Airport UNICOM. [FAA Exhibit 1, Item 1, page 38] The Director addressed and dismissedthis issue inthe 2006 JetAway DD. We rely on that finding here. [2006 JetAway DD, pp. 33-34] Again, we observe that JetAway is not similarly situated to JCP. JetAway nowhas no leasehold presence on the Airport and has not yet had the right to conduct commercial aeronautical activities upon the Airport (See Montrose CourtOrder). Consequently, the County has no obligationto compel JCP to directairport users to JetAway's service offered pursuantto the Off-AirportAgreement. Also, it appearsthat in the confidential mediation, the parties came to a concurrence in November 2007 that appears to accommodate JetAway's concerns going forward, when presumably JetAway could make itselfa similarly-situated FBO inrelationto the UNICOM. Both draft settlement agreements state, "Pursuant to FAA Order 5190.6A, the County will revoke the existing FBO's right to operate the UNICOM and determine the level ofmanned service that the County will provide, ifany." [FAA Exhibit 1, Item 1, exh. 5, par. 17 & exh. 6, par. 12] In its Reply, JetAway alleges that the County may attemptto make JetAway pay for the cost ofthe UNICOM, withoutproving to JetAwaythat it's also charging JCP, equally. This is a speculative claim. The FAA observes thatthe County should distribute costs to its FBOsthrough a comprehensive and reasonable rate structure and cost-allocation.

• At sub-count 7d, JetAway raises the issue ofthe County's apparent square footage requirement. [FAA Exhibit 1, Item 1, page 45] JetAway states that the County is requiring JetAwayto construct crew and passenger lounge facilities totaling at least 4,000 square feet. It states thatthis is 1,500 square feet judges compliance by an airportsponsor's actions or inactions with respect to those agreements or minimum standards." [SelfServe Pumps, DD, pp. 31-32] Page 41 of50FAADocketNo. 16-08-01 Director's Determination largerthanrequired by the 2005 Minimum Standards, but equivalent to the size facility required in JCP's lease. [FAA Exhibit 1, Item 1, p. 46] 

### In fact, it does appear that the County did include the 4,000 square feet requirement inits November 2007 draft settlement agreement. [FAA Exhibit 1, Item 1, exh. 5, par. 12] Again, the FAA understands that positions taken in negotiations are often fleeting. That appears to be the case here. In its Answer the County concedes the point, stating, "A second FBO will only have to build improvements ofa size that is specified inthe Minimum Standards. It does not have to matchthe size ofJCP's facilities to the extent those facilities are in excess of the Minimum Standards." [FAA Exhibit I, Item 3, p. 39. See also FAA Exhibit 1, Item 1, exh. 21, Section Two 

### III B.] 

### In response to this statement bythe County, JetAway replies, "That is certainly an appropriate position for the County to take." [FAA Exhibit 1, Item 5, p. 39] Under the circumstances, we agree with JetAway and the County. In some Sub-Counts JetAway alleges County is not required to take specific actions At sub-count 6e and 7a, JetAway alleges thatthe County is choosing to take actions that its grant assurances do not require itto take. Such an allegation is not an allegation ofthe violation ofa grant assurance. It ignores an airport sponsor's proprietary rights that may be more comprehensive thanthe FAA grant assurances.

• At sub-count 6e, JetAway states that it is unnecessary for the County to issue a Request-for-Proposal (RFP) to solicit interest in a second FBO opportunity. [FAA Exhibit 1, Item 1, page 38] JetAway states, "the County had acknowledged and agreed that an RFP for a second FBO wouldbe 'unnecessary and inappropriate,"' but after JCP threatened to sue the County, the County raised the possibility ofissuing an RFP for a second FBO. [FAA Exhibit 1, Item 1, p. 38] The Director addressedthis issue specifically inthe 2006 JetAway DD. The Director disagreed with JetAway's 2006 assertion that the RFP process for a second FBO is unnecessary and delaying. The Director stated: The grant assurances do notprohibit the County from entering into long-term leases with commercial entities, by negotiation, solicitation, or other means. The County may choose to selectFBOs

... through anRFPprocess, and, 

### if it chooses to do so, it can do it each time a new applicant is considered. [FAA Exhibit 1, Item 3, exh. A, 

### p. 28] The Director noted in a footnote inthe 2006 JetAway DD that RFP's are a common industry practice that provide a widely circulated call for aeronautical interest in airport facilities, and provide an appropriate method ofensuringthe highest and best use for limited airport property. [FAA Exhibit 1, Item 3, exh. A, p. 28] Additionally, the Director has also recoguized that an airport sponsor can liruit a current Airport FBO tenant from responding to a proposal for a newFBO opportunity in furtherance ofcompliance with grant assurance 23 Exclusive Rights. In Corporate Jets v Scottsdale, the Directorupheldthe airport sponsor's decision to exclude an incumbent
Page 42 of50FAADocketNo.l6-08-01 Director's Determination
FBO "from responding to a request forproposal, basedon the sponsor's desire to create competition or add fUrther competition at the airport andtoprovide more choice and services for thepublic users." (Corporate Jets v City ofScottsdale, FAA DocketNo. 16- 01-12 (March 15, 2002) (Director's Determination), p. 10) The precedent inthe 2006 JetAway DD and Comorate Jets applies inthe extant case.
• At sub-count 7a, JetAway objects to being subject to the same lease term as JCP. [FAA Exhibit 1, Item 1, page 39] JetAway states that the County appeared flexible onJetAway's proposed lease term of35 years, but changed its position after pressure from JCP. JetAway states,"

... the County ultimately insisted that the termprovisions be identical to those in the JCP FBO Agreement- an initial term oftwenty years with a ten-year option." [FAA Exhibit 1, Item 1, p. 40] The County answers, "the County doesn't perceive that requiring all FBO'sto have the same term is either unreasonable or unjustly discriminatory." [FAA Exhibit 1, Item 3, p. 36] The FAA agrees with the County. The County's grant assurances may notrequire the specific action contemplated bythe County, but they do not r,rohibit it. The County has the proprietary right to establishthe terms ofits FBO leases. 0 

### In someSub-Counts theParties Differ

• At sub-count 7b(l) JetAway states that it'sunreasonable and discriminatory to require JetAwayto meet the applicable minimum standards before commencing FBO operations, when JCP was not formally required to demonstrate that it had metthe minimum standards before 

### itbegan operations in 2006. JetAway states,"

... the County was indeed going to impose unreasonable discriminatory requirements on JetAway that it had not imposed onJCP or others." [FAA Exhibit 1, Item 1, p. 41] The County answers, "There is nothing unreasonable or unjustly discriminatory in requiring all FBO's to comply withthe same Minimum Standards before FBO operations commence." [FAA Exhibit 1, Item 3, p. 37] JetAway has notprovided evidence that JCP had not met the minimum standards before beginning operations in 2006. However, JetAway focuses its argument inits Reply, stating "Butthe point is thatthe County did not require JCP to do anything to demonstrate compliance withthe Minimum Standards before commencing operations and yet insisted that JetAway would have to do so." [FAA Exhibit 1, Item 5, p. 37]

30 The parties should note that inmost cases, nuder a long-term lease, the airport ownertransfers the cost of the capital improvement and the risk associated with financing to the tenant. Inreturn, the airport owner gives up a degree offlexibility. Prospective tenants considering a substantial investment inthe airport generally seek a lease term sufficiently long to ensure thatthe tenant gets not only a return of its investment, buta return on its investment as well. [See Skydance Helicopters v. Sedona Oak-CreekAirport Authoritv, FAA DocketNo. 16-02-02 (March 7, 2003) (Director's Determination) p. 29. Page43 of50FAADocketNo.16-08-0l Director's Determination

The standard ofcompliance does not require that airport sponsors enforce minimum standards so rigidly as to require identical tone and posture toward all competitors that have differentrecords and history withthe sponsor. [See RickAviationv Peninsula Airport Commission, FAADocketNo. 16-05-18 (May 8, 2007) (Director's Determination) p. 16] JCP and JetAway are not similarly situated. Apart from the differences in location, amenities, circumstances and time, JetAway has access to off-airport facilities that could allow it to operate indefinitely without meeting the Minimum Standards onthe Airport. Clearly, this is different from JCP's situation. Further, in this circumstance, it is reasonable for the County to require a second FBO to meet minimum standards before beginning operations and it is reasonable for the County to require JetAway to expeditiously construct its on-Airport facilities and notrely on off-Airport infrastructure.

• At sub-count 7e, JetAway objects to the County's requirement that it pay the same lease rates as JCP despite apparent differences in the quality ofthe leased properties. [FAA Exhibit I, Item 1, page 46] JetAway states, "the County's insistence onidentical FBO revenue provisions (rent) until now has been unreasonable and discriminatory under the circumstances

.... The County simply insistedthat JetAway paythe same rate, or actually a higher rate, for unimproved land onwhich it would have to construct a ramp at a costto JetAway." [FAA Exhibit 1, Item 5, pp. 40-41] The County allows that rates for JetAway's leaseholdmaybe setby market forces, capturing any differential inimprovements and location, stating, "Ifthere is an RFP for the identified second FBO and JetAway chooses to bid, it will have the opportunity to address and support inits proposal why it should pay less than JCP." [FAA Exhibit 1, Item 3, p. 39] The Directornotes thatthis mechauism canbe usedto set rates at either the JetAway-adjacentparcel or the 9-acre Site. JetAway states, "JetAway does not expectthe Director to address any specific revenue provisionthat would be appropriate, and recognizes that the revenue provisions will be subjectto negotiation

...." [FAA Exhibit 1, Item 5 p. 40] It is notthe responsibility ofthe Directorto establish airport rates, nor does the Director negotiate rates between parties. Specific rate negotiations involves numerous variables. Itis acceptable to rely on marketmechauisms to help determine the value ofa particular location at an airport. Also, it is customary and reasonable for airport sponsors to have an 'unimproved' and 'improved' rate schedule. Tenants financing improvements maypay a lower initial rental (ground rent) than tenants leasing a facility from an airport sponsor. The former will have debt for the new facility while the latter maynot have such debtpayments.

Page 44 of50FAA DocketNo. 16-08-01 Director's Determination
Issue4 Conclusion As discussed above, the County has not acted unreasonably inregard to declining JetAway's proposals. The County has good reasonto attempt to limit legal and fmancial liability associated withthe circumstances ofJetAway's site andproposed operationnamely the through-the-fence access point and the Off-Airport Agreementthat provide JetAway, its tenants, and customers31 access to the Airport. The County's alternative to any ofthe points discussed above was to say 'no' and direct JetAway to an alternative site apart from the through-the-fence access point. As sincere and determined as JetAway's hope for its leasehold vision may be, it is built on the shaky legal foundation ofthe Off-AirportAgreement. The County's grant assurances do not liruit the County's proprietary rightto attempt to minimize its exposure to the legal jeopardythatthe Off-AirportAgreement may represent. The County may act to limit, mitigate or eliminate through-the-fence access, including the Off-Airport Agreement. It may act to reduce its exposure to potential fmancialliability, so that it can avoid passing on such costs to its aeronautical users. Its grant assurances require it to not unjustly discriminate against its fully on-Airporttenants andto retain its rights andpowers. Even ifthe legaljeopardy is small, the Federal obligation is a one-way street, in favor ofthe onAirporttenants. As stated, JetAway has no presence on the Airport apart from its Off-Airport Agreement. As such it is equivalent to any proponent ofa second FBO at the Airport and is subjectto the reasonable planningjudgments ofthe County as to where such FBO maybe located. In addition, itis subjectto the County's prerogative to solicit other interested parties in an RFP. For the reasons discussed herein, the Director finds thatthe County has not unreasonably denied access to JetAway, nor has the County unjustly discriminated against JetAway. Furthermore, the County has not constructively granted an exclusive right by means of unreasonable treatment ofJetAway orthroughthe imposition ofunreasonable terms. Considering the above, the Director finds that the County is not in violation ofgrant assurance 23, Exclusive Rights or grant assurance 22, Economic Nondiscrimination. Issue 5 Whether the County has provided more favorable treatment to JCP with regard to retail aircraft services in a manner that unjustly discriminates against JetAway in violation ofFederal grant assurance 22,EconomicNondiscrimination, 49 U.S.C. 

### § 47107(a). JetAway raises several issues (discussed below) under this grant assurance and alleges that the County has unjustly discriminated against JetAway. [FAA Exhibit 1, Item 1, page 49- 50)

31 It is unclear from the record whether JetAway intends to continue commercial aircraft storage services. Page 45 of50FAA DocketNo. 16-08-01 Director's Determination
The County answers, "The County has notunjustly discriminated against JetAway. On the contrary, ifthe County granted JetAway's proposal, which is the basis for this Complaint, the County would be unjustly discriminating against the existing tenants onthe Airport." [FAA Exhibit, 1, Item 3, p. 40] Many ofJetAway's counts do not contain an allegation including the elements ofa claim ofunjust economic discrimination. Also, most do not allege any facts that the Director can construe as a denial ofaccess to JetAway, reasonable or unreasonable. The Directorhas described the fact elements ofan allegation ofunjust economic discrimination, inthe previouslyreferenced Gate 9 Part 16 case: In order for the Director to sustain an allegation of unjust economic discrimination, the recordmustshow the elements of urifust economic discrimination under grant assurance 22. In a Part 16proceeding, the Complainant has the burden of proof to establish the elements of unjust discrimination.

..., the recordmustshow that anotherparty similarly situatedto the Complainant receivedpreferential treatment denied to the Complainant in similar circumstances.
... The FAA has acknowledged that several factors can distinguishparties thata sponsor can justly treat differently, withoutviolating its Federal obligations. Such factors may be:periodof lease, businessplanproposed, location of facilities, level of service andamenities, scope of services, investment, market conditions, andreasonable actions by the sponsor to promote and protect its ability to continue to serve the interests of thepublic in civil aviation, including the enlistment of prudent businesspractices that may change over time. [Gate 9, DD, p. 11] Prudent business practice can and should include protecting the rights and powers ofthe sponsor to continue as a going concern, including acting to limit, mitigate or eliminate a through-the-fence access right. Inregard to the following allegations, the Countyrepeats that JetAway does not offer any facts to support that its specific claims are unjustly discriminatory against JetAway, nor does it offer any legal support for its claims. [FAA Exhibit 1, Item 3, pp. 41-43] The FAA agrees withthe County. Withregard to counts 1-6, the statements all appear to describe instances when the County actedto promptly develop its airport infrastructure 

### ina manner that benefits its on-Airport tenant and FBO service provider, JCP, in some cases by directly improving facilities used by JCP. 1. The County made available and lease the "prime FBO location" to JCP.32 [FAA Exhibit 1, Item 1, page 50] 2. The Montrose County Building Authority refmanced the Airport's debt structure for the benefit ofJCP. [FAA Exhibit 1, Item 1, page 51]

32 With regard to the leasing and configuration ofJCP's leasehold, see Issue 3, above. Page 46 of50FAA DocketNo. 16-08-01 Director's Deten:nlllation
3. The County accelerated the construction ofimprovements for JCP. [FAA Exhibit 1, Item 1, page 51] 4. The County paved a ramp area for JCP's exclusive use. [FAA Exhibit 1, Item 1, page 52] 5. The County constructed an access road to JCP's facilities.[FAA Exhibit 1, Item 1, page 52] 6. The County is relocating taxiways to provide better access to JCP's facilities. [FAA Exhibit 1, Item 1, page 52] In counts 1-6, JetAway makes no claims or statement offact that constitutes an allegation ofan unreasonable denial ofaccess. JetAway has never been similarly-situatedto JCP in that ithas neverheld the rights ormetthe standard to conduct a commercial aeronautical activity onthe Airport. Again, the County's grant assurances do not protect JetAway's off-Airport business interests. Therefore, the actions are not unjustly discriminatory. Counts 7-10 regard JetAway's claims ofdiscrimination against JetAway's ability to conduct its aeronautical business. 7. The County requires all transient aircraft to park atJCP facilities. [FAA Exhibit 1, Item 1, page 52] 8. The County has given JCP control over all general aviation parking. [FAA Exhibit 1, Item 1, page 53] 9. The County has prohibited JetAway from paving the ramp area authorized and required by the Land Lease Agreement. [FAA Exhibit 1, Item 1, page 53] 10. The County has placed unreasonable restrictions on JetAway. [FAA Exhibit 1, Item 1, page 55] With regard to counts 7-10, JetAway was not authorized to conduct FBO operations onAirport under a Land Lease Agreement from a site adjacent to its off-Airport facilities. The 2006 JetAway DD addressed this issue, stating, "The area leased by JetAway pursuant to the Land Lease Agreement was not intendedfor FBO operations and the use ofthat leased premises is 'forparking and moving ofaircraft and for no other purpose."' [2006 JetAway DD, p. 29] Counts 7-10 are moot since the Montrose District Court terminated JetAway's Land Lease Agreement inJune 2008.33 This eliminated the County's landlord-tenant relationship with JetAway and removed any pretense that JetAway's off-Airport commercial business was everprotected by the County's grant assurances. Since JetAway's Land Lease was never for any commercial purpose, including FBO activities, JetAway was never similarlysituated to JCP, so there is no unjust economic discrimination. Even assuming that

33 The Court stated, "The County also argues thatJetAwaybreachedthe lease by usingthe leased area for FBO operations. The Court agrees. Itis indisputed that JetAway fueled airplanes onthe leased premises after entering into the LandLease Agreement." [FAAExhibit 1, Item 5, exh. 60, p. 31) Page 47 of50FAADocketNo.16-08-01 Director's Determination JetAway was not using the Land Lease ramp to support its FBO business,34 JetAway provides no evidentiary support that these actions constitute an unreasonable denial of access. Specifically, with regard to counts 7 & 8, JetAway claims that the County was harming JetAway by limiting parking onits former Land Lease ramp to I hour, thus advantaging JCP's dissimilar, on-airport FBO business. [FAA Exhibit I, Item 1, p. 52] The County denies this, citing a reason for its rule: JetAway

...claims that the County requires all transient aircraft toparkatJCP 's facilities. That claim is untrue. [See FAAExhibit 1, Item 31 pp. 2-3] JetAway can parkaircrqft on its ramp but it cannotpark in the taxilane/taxiway or the OFA. It also cannotparkaircrqft in the fueling area adjacent to JetAway for more than one hour. [FAA Exhibit 1, Item 3, p. 42] The evidence provided by the County supports its position. JetAwayprovides no counter evidence to refute the County. As stated, in any case, the point is moot, since JetAway lost its Land Lease bythe Montrose Court Order in June 2008. With regard to count 9, JetAway alleges that the County denied it the ability to pave some Airport property adjacentto JetAway's off-Airport hangar. JetAway stated that itwanted to: pave a ramp area forparkingandmoving aircraft. Some of the aircraftwouldbe parkedinside the hangar, as they hadbeen with the County's knowledge, consent andencouragementsince December 2004. Andsomepilots and passengers would use the lounge facilities. [FAA Exhibit 1, Item 1, p. 53] The Countynotes this admission by JetAway, adding, "JetAway continuedto use the ramp for FBOpurposes in support ofits off-Airport, through-the-fence operation." [FAA Exhibit 1, Item 3, p. 44] In fact, the County had stated their opposition to the construction stemmed inpart from the County's concern notto support "JetAway's combined throughthe-fence /on-the-Airport FBO operations." [FAA Exhibit 1, Item 3, p. 44] With regard to count 10, JetAway admits its business interests on the Airport, despite having no commercial lease on the Airport. JetA way alleges, "The County has recently placed unreasonable and unnecessaryrestrictions on JetA way's ability to conduct any business." [FAA Exhibit 1, Item 1, p. 55] As stated, JetAway's off-airport business interests are not protected bythe grant assurances and the County is free to limit, mitigate oreliminate commercial ornon-commercial through-the-fence access. The County's concern regarding JetAway's commercial-use ofAirport property under a non-commercial lease (JetAway Land Lease) is reasonable and well-founded, as discussed inthe Montrose Court Order. [FAA Exhibit 1, Item 5, exh. 60, p. 31]

34 Ofcourse, the Court found otherwise and terminated JetAway's Land Lease. But also, JetAway admits this in its pleadings, stating under count 10, "The County has recentlyplacedunreasonable andunnecessary restrictions on JetAway's ability to conduct any business." [FAA Exhibit 1, Item 1, p. 55] Page 48 of50FAADocketNo.l6-08-0l Director's Determination


### Count 11: The County has refused to negotiate with JetAway in good faithfor the lease of availablepremises for an FBO In its last count, JetAway sununarizes its grievances, examined above, and styles them as a violation ofF AA Order 5190.6A, stating: FAA Order 5190.6A specifies atPar. 4-15 that the airport owner "has the obligation to make available suitable areas or spaces on reasonable terms to those who are willingandotherwise qualified to offer"FBO services andthat "unless it undertakes toprovide those services itself, the airportowner has a duty to negotiate in good faith for the lease of suchpremises. [FAA Exhibit 1, Item 1, p. 56] JetAway argues thatthe County is in violation ofthe FAA Orderbecause the County has failed to negotiate with JetA way in good faith. As stated, the FAA Order does not impose obligations upon the sponsor. Inits entire Complaint, JetAway refers extensively to the record containing evidence that the County has, in fact, engaged JetAway in negotiations to accommodate JetAway's preferred location for a second FBO onthe Airport. For example, the record includes various draft and proposed settlement agreements. [FAA Exhibit 1, Item 1, exhs. 4-8] The County's alternative to negotiatingwith JetAway for its preferred FBO location, from the beginning, was to simply state that the County wished to avoid the legal, financial and technical obstacles associated withthe JetAway location. Instead ofsaying 'no,' to JetAway's preferred location and issuing anRFP for the 9-acre Site, the County continued negotiating 

### inmediation. The evidence ofthe County'sposture during negotiations more nearly describes defensiveness and concern, than a lack ofgood faith. As stated above, the FAA sees valid reasons for the County's concerns and notes thatthe County's grant assurances allow it to limit, mitigate or eliminate the Off-Airport Agreement rights, in favor ofits fully-on Airporttenants. 

### Issue 5 Conclusion JetAway has failed to establishthat it is similarly-situated to JCP in a mannerto sustain a finding ofunjust economic discrimination. As stated herein and inthe 2006 JetAway DD, JetAway's off-Airport interests are not protected under the grant assurances. Rather, the County's grant assurances protect the County's Airporttenants (some ofwhom may be JetAway's competitors) from JetAway's business interests conducted from an off-Airport location. JetAway is due the consideration ofany other seeker ofa leasehold at the Airport. Also, as stated above, the County had validreasons for deciding to close out negotiations with JetA way and to offer an alternative site for a second, competing FBO at the Airport. The Director finds thatthe County is not in violation ofgrant assurance 22, Economic Nondiscrimination.

Page 49 of50FAA DocketNo. 16-08-01 Director's Determination 

### VII. FINDINGS and CONCLUSIONS Itis unfortunate that the parties could not reach agreement to resolve the through-thefence access issues in a mannerthat would allow JetAway to become an on-Airport FBO. However, the County's first obligation is to protect its on-Airport tenants from those attempting to conduct commercial FBO activities through-the-fence from an off-Airport location. The County is correct to respectfully consider JetAway's interest inleasing Airport property as it would with any other applicant. Issuing an RFP for the 9-acre Site would be a good way to do provide transparency. Before taking action however, the County took great efforts to negotiate with JetAway to become an on-Airport FBO. These efforts, including mediation, were not successful. In the end, the evidence presented by the Complainant is insufficient to eclipse the Airport's proprietary responsibility to make decisions that best serve the aeronautical interests ofthe public andthe interests ofthe Airport as a going concern. Upon consideration ofthe submissions and responses by the parties, the record herein, applicable law and policy, and for the reasons stated above, the Director ofthe FAA Office ofAirport Compliance and Field Operations finds and concludes that the County is not currently in violation ofgrant assurances 5, PreservingRights andPowers; 22, Economic Nondiscrimination; 23, Exclusive Rights; 24, Fee andRentalStructure; or 29, AirportLayoutPlan. ORDER Accordingly, it is orderedthat: 

### 1. The Complaint is dismissed. 2. All Motions not expressly granted inthis Determination are denied. RIGHT 

### OF APPEAL This Director's Determination, FAA DocketNo. 16-08-01, is an initial agency determination and does not constitute a final agency decision and order subject tojudicial review. [14 CFR § 16.247(b)(2)] A partyto this proceeding adversely affected by the Director's Detemrination may appeal the initial determination to the FAA Associate Administrator for Airports pursuant to 14 CFR § 16.33(b) withinthirty (30) days after service ofthe Director's Determination.

Randall S. Fiertz Director, Office ofAirport Compliance

and Field Operations
Page 50 of50 Date: 

## :J..i7 ( 20o '{INDEX OF ADMINISTRATIVE RECORD JetAway Aviation, LLC 

### v. Board ofCounty Commissioners, Montrose County, Colorado and the Montrose County Building Authority Docket No. 16-08-01 The following items constitute the administrative record inthis preceding:

Item 1 FAAExhibit 1 Complaint, dated January 25, 2008. Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6 Montrose Regional All-port Land Lease Agreement, JetAway Aviation LLC, dated November 7, 2005. Assignment ofAgreementAuthorizing Off-Airport Operations at Montrose Regional Airport and Consentto the Assignment dated November 30, 2004, including copy oforiginal Agreement Authorizing Off-All-port Operations at Montrose Regional Airport, dated August 23, 2001. Complaint and Jury Demand inJetAway Aviation, LLC vs. Board ofCounty Commissioners ofMontrose County, Colorado, and the Montrose County Building Authority, et al, with three exhibits, dated December 10, 2007. Settlement Agreement Reached through Mediation, between County ofMontrose, JetAway Aviation, and One Creative Place LLC, and KMTJ Fuel LLC, as a result ofmediation conductedbythe Federal Aviation Administration on March 6 and 7, 2007, subjectto County Board approval. Document is signed and dated March 8, 2007. Settlement Agreement Reached Through Mediation, between parties County ofMontrose, JetAway Aviation, One Creative Place LLC, and KMTJ Fuel LLC, as a result ofmediation conducted bythe Federal AviationAdministration on September 18 and 19,2007. Document is unsigned. Settlement Agreement Reached Through Mediation, between parties County ofMontrose, JetAway Aviation, and One Creative Place LLC, and KMTJ Fuel LLC, as a result ofmediation conducted by the Federal Aviation Administration on beginning on March 6, 2007. Document is unsigned.

### Exhibit 7 Proposed SettlementAgreement dated November 28, 2007. Letter from William White, Byrne, Kiely & 

### White, LLP to Brian A. Magoon, Esq., noting receipt ofthe Montrose County proposed settlement agreement dated November 16, 2007 and identifYing additions to the agreementthat are not acceptable to JetAway Aviation. Exhibit 8 Letter dated December 5, 2007 from Brian A. Magoon to William White, Esq., regarding JetAway proposed settlement agreement of November 28,2007. Exhibit 9 Montrose Regional Airport Minimum Standards dated 2003. Exhibit 10 Inventory ofExisting Conditions for the Montrose Regional Airport Master Plan. Document is a reevaluation ofthe Airport's Master Plan as a means ofanalyzing current and forecast operational characteristics and facilities, dated September, 2004. Exhibit 11 Aerial photographs ofMontrose Regional Airport Terminal area. Photographs are not dated. Exhibit 12 Development Concepts and Alternatives Analysis ofthe Montrose County Regional Airport Master Plan Update, dated March 2005. Exhibit 13 Request for Proposals for a Fixed Base Operator at the Montrose Regional Airport. Deadline for proposal submission was April 1, 2005. Exhibit 14 Proposal for a Fixed Base Operation atthe Montrose County Regional Airport from Jet Center Partners, LLC, dated April 6, 2005. Exhibit 15 Letter dated May 27, 2005 from Scott Brownlee, Director of Aviation, Montrose Regional Airport to Jet Center Partners, LLC, regarding a list ofquestions presented to Jet Center Partners regarding proposal for fixed base operation. Exhibit 16 Letter dated May 31,2005 from Jet Center Partners, LLC to Scott Brownlee, Director ofAviation, Montrose County Regional Airport, regarding responses to questions presented in letter dated May 27, 2005 (Exhibit 15). Exhibit 17 Planning Memorandum, Conceptual Airport Development Plan and Passenger Terminal Development Alternatives, Montrose County Regional Airport Master PlanUpdate, dated June 2005.

2

### Exhibit 18 Letter dated August 11,2005, from Randy Duncan, President, Jet Centers, lnc. to Montrose Regional Airport Commissioners Belt, Patterson and Ubell, praising JetAway's existing facility onthe Airport and encouraging Airport Commissioners to allow continued off-airport access from JetAway. Exhibit 19 Montrose Regional Airport Fixed Base Operator Agreement between Montrose Regional Airport and Jet Center Partners, LLC, dated December 5, 2005. Exhibit 20 Resolution (80-2005) ofthe Montrose County Board ofCounty Commissioners to Amend the Airport Minimum Standards, dated December 5, 2005. Exhibit 21 Montrose Regional Airport Miniml)ID Standards, Adopted August 4, 2003, Revised December 5, 2005. Exhibit 22 Two (2) photographs ofBlack Canyon Jet Center's fixed base operation at Montrose Regional Airport. Photographs are not dated. Exhibit 23 District Conrt, Montrose County, Colorado, ORDER- Montrose County Airport Authority- Plaintiff, v. V.I.P. Flyers, Defendant, dated May 16, 1991. Exhibit 24 Official Statementregarding $525,000 Certificates ofParticipation, Series 2006A, 2006 B and 2006 C. Exhibit 25 Letter dated August 5, 2006, from William White, Bryne, Kiely & 

### White, LLP, to Robert J. Hill, Esq., requesting a lease by JetAway Aviation for the South Tract consisting of187,395.12 square feet at Montrose Regional Airport. Exhibit 26 Draft Final Report, Montrose Regional Airport Master Plan Update, Airport Layout Plan graphic, dated August 24, 2006. Exhibit 27 Proceedings ofthe Board ofMontrose County Commissioners, dated February 20, 2007. Exhibit 28 Montrose County Airport Lease

- surveyors map. Exhibit 29 Graphic depicting Black Canyon Leaseholds on Montrose County Regional Airport- Terminal Area Plan. Graphic is not dated.

3

### Exhibit 30 Aerial photograph ofMontrose Regional Airport Commercial Terminal, depicting Black Canyon fixed base operation and hangar facility. Photograph is not dated. Exhibit 31 Letter dated November 20, 2007, from Joe Kerby, Montrose County Manager, to Jim Rumble, Manager, Black Canyon Jet Center and Steve Stnhmer, Manager, JetAway Aviation, regarding the adversarial climate between Black Canyon Jet Center and JetAway Aviation and providing a form to be used as a complaint processing tool. Exhibit 32 Letter dated December 6, 2007, from William White, Byrne, Kiely & 

### White, to Joe Kerby, Montrose County Manager, responding to letter identified in Exhibit 31. Exhibit 33 Electronic mail message dated June 24, 2003, from John Bauer to Scott Brownlee, regarding review and comments onMontrose County Regional Airport minimum standards. Exhibit 34 Letter dated September 14, 2007, from JetCenters, Inc. to Montrose County Commissioners Belt, Patterson and Ellis, regarding the professionalism ofJetAway Aviation. Exhibit 35 Letter dated July 18, 2007, from William White, Bryne, Kiely & 

### White, LLP, to Jerome P. Jones, Jr. Esq., Associate ChiefCounsel and Dispute Resolution Specialist for the Federal Aviation Administration, regarding Public Records Request ofMay 29, 2007. Exhibit 36 Minimum Standards Guidelines for FBO Operations at the Montrose Regional Airport. Document is undated. Exhibit 37 Letter dated June 16, 2006, from Tectonic Management Group, Inc, to Federal Aviation Administration's Northwestern Mountain Regional Office, regarding forms 7460-1 for pre-engineered metal hangar and a temporary construction crane on the Montrose Regional Airport. Exhibit 38 Letter dated August 3, 2006, from Scott Brownlee, Montrose Regional Airport, to Chris Schafer, Federal Aviation Administration, Denver Airport District Office, regarding concerns that a proposed hangar for JetAway is depicted on Form 7460 that are on land not under lease to JetAway. Exhibit 39 Letter dated November 26, 2007, from Tectonic Management Group, Inc. to Federal Aviation Administration, Northwest

4Item2 Exhibit40

Exhibit 41 Mountain Regional Office, regarding forms 7460-1 for preengineered metal hangar and a temporary construction crane on the Montrose Regional Airport. Electronic mail dated May 10, 2006, from Shawn Turek to Stephen Stuhmer regarding the impact ofJetAway's proposed hangar on the VOR at the Montrose Regional Airport. Electronic mail dated May 17, 2006, from Shawn Turekto Stephen Stuhmerregarding the impact ofJetAway's proposedhangar on the VOR at the Montrose Regional Airport. FAA Notice ofDocketing, dated February 12,2008. Item2A County request for extension oftime to file Answer, dated February 27, 2008. Item2B FAA approval ofCounty's extension request, dated February 29, 2008. Item3 Answer and Motion to Dismiss, dated March 28, 2008. Exhibit A

ExhibitB

Exhibit C

ExhibitD

ExhibitE

ExhibitF FAA DocketNo. 16-06-01, Director's Determination, JetAway Aviation, LLC v. Board ofCounty Commissioners, Montrose County, Colorado. Proceedings ofthe Board ofMontrose County Commissioners, Dated November 20, 2006. Letter dated February 4, 2008, from Michael A. Hodges, President/CEO, Airport Business Solutions, to Brian Magoon, Robinson Waters & O'Dorisio. Letter dated March 25, 2008, from Michael 

### A. Hodges, President/CEO, Airport Business Solutions, to Brian Magoon, Robinson Waters & O'Dorisio, regarding a review ofthe Airport Layout Plan at the Montrose Regional Airport. Complaint for Declaratory Judgment by the District Court, Montrose County, Colorado, involving plaintiffOne Creative Place and JetAway Aviation v. Montrose County, Colorado, dated January 4, 2006. Agreement to Participate InMediation conducted by the Federal Aviation Administrationbetween JetA way Aviation and Montrose County, Colorado, dated March 6, 2007.

5ExhibitG

ExhibitH

Exhibit I
Exhibit J
ExhibitK

Exhibit L

ExhibitM

ExhibitN

Exhibit 

### 0

Exhibit P ExhibitQ
ExhibitR Document from the Colorado Statutes with definition of"Meetings -opento the public- definition." Airport Facilities Lease Purchase Agreement between the Montrose County Building Authority and Montrose County, Colorado. Dated July 1, 2006. Proceedings ofthe Board ofMontrose County Commissioners, dated June 19, 2006. Montrose Regional Airport Land Lease Agreement with JetAway Aviation, dated November 7, 2005. Temporary Restraining Order bythe Board ofCounty Commissioners ofthe County ofMontrose, CO against One Creative Place, and JetAway Aviation, dated April10, 2006 Assigmnent ofAgreement Authorizing Off-Airport Operations at Montrose Regional Airport and Consent to the Assignment with One Creative Place, dated November 30, 2004. Response to Request for Proposals for Fixed Base Operations at Montrose Regional Airport submitted by JetAway Aviation, dated Aprill5, 2005. Complaint and Jury Demand in United States District Court for the District ofColorado between JetAway Aviation and the Board of County Commissioners for the County ofMontrose, Colorado, datedDecember 10,2007. Answer to Complaint and Jury Demand in the United States District Court for the District ofColorado between JetAway Aviation andthe Board ofCounty Commissioners for the County ofMontrose, Colorado, dated February 8, 2008. Montrose County Regional Airport Fixed Base Operation Agreement- Jet Center Partners, LLC, dated December 5, 2005. Proceedings ofthe Board ofMontrose County Commissioners, dated December 5, 2005. Electronic mail, from Lloyd Arnold to Robert Hill regarding information onthe Object Free Area at the Montrose Regional Airport, dated February 7, 2008.

6Item4 

### Exhibit S Newspaper article from the Montrose Press regarding the cessation ofprivate mediation betweenMontrose County and JetA way Aviation, dated December 7, 2007. Exhibit T Newspaper article from the Montrose Press regarding JetAway Aviation's response to the County's decision notto undertake further private negotiations concerning business proposals at the Montrose Regional Airport, dated December 8, 2007. Exhibit U Newspaper article from the Montrose Press regarding new rules for parking and fueling aircraft at the Montrose Regional Airport, dated December 8, 2007. Exhibit V Letter from Robert J. Hill, Montrose County Attorney to William White, Bryne, Kiely & 

### White, regarding perceived efforts by Montrose Countyto putJetAway Aviation out ofbusiness, dated December 10,2007. Exhibit W Letter, from William White, Bryne, Kiely & 

### White, to Robert J. Hill, Montrose County Attorney, inresponse to letters of December 7, 2007 (Exhibit V) and another letter ofDecember 5, 2007 from Montrose CountyManager Joe Kerby (not contained in Exhibits), dated December 12, 2007. ExhibitX Montrose Regional Airport Minimum Standards, Adopted August 4, 2003 and Revised December 5, 2005. Exhibit Y County's Rebuttal to FAA DocketNo. 16-06-01, JetAway Aviation LLC vs Board ofCounty Commissioners, Montrose County and the Montrose Regional Airport, dated April21, 2006. Exhibit Z Electronic mail from Linda Bruce, Colorado State Plarmer, FAA Denver Airport District Office, to Mark McFarland regarding airway facility comments onMontrose Regional Airport, dated October 5, 2007. Exhibit AA Defendant's Preliminary InjunctionHearing Brief, submitted to the District Court, Montrose County, Colorado, dated October 27, 2006. Exhibit BB Enplanement and deplanement data and fuel sales for years 2000- 2008 -Datais not identified as tothe source ofthe information. Errata to Part 16 Answer and Motion to Dismiss, 

### dated April 30, 2008.

7

### Item4A Complainant's request for extension oftime to file Reply, dated April 7, 2008. Item 4B Respondent's response to Complainant's request for extension oftime to file Reply, dated April 8, 2008. Item4C
Item4D
ltem4E

Item 4F
Item4G
Item4H

Item 41

Item 4J
ItemS Respondent's additional response to Complainants request for extension oftime tofile Reply, dated April14, 2008. FAA approval ofComplainant's request for extension oftime to file Reply, dated April15, 2008. Complainant's second request for extension oftime to file Reply, dated May 22, 2008. Respondent's response to Complainant's second request for extension oftime to file Reply, dated May 23, 2008. FAA approval ofComplainant's second request for extension oftime to file Reply, dated May 28, 2008. Complainant's third request for extension oftime to file Reply, dated June 25, 2008. Respondent's letter agreeingto Complainant's third request for extension oftime to file Reply, dated June 26, 2008. FAA approval ofComplainant's third request for extension oftime to meReply, dated June 27, 2008. Reply, dated July 14, 2008. Exhibit 42 Montrose Regional Airport Master Plan, cover sheet for working papers, dated July 11, 2008 Exhibit43
Exhibit44
Exhibit45 Montrose Regional Airport Master Plan Updated, dated August 2006. Handwritten notes identified as "Telecon

### with DB re: Master Plan," dated March 22, 2004. Handwritten notes on Draft Final Master Plan meeting, dated August 24, 2006. Exhibit 46 E-mail from Mark McFarland to Jeanette Anderies regarding Draft Final Master Plan Report, dated December 17, 2007.

8

### Exhibit 47 Grant Agreement for Montrose Regional, Contract No. DOTFA03NM-1112, dated August 18,2003. Exhibit48 Grant Agreement fro Montrose Regional, Contract No. DOTFA04NM-1007, dated Apri114, 2004 Exhibit 49 Letter to Craig Sparks from Scott Brownlee regarding closeout of AIP ProjectNo. 3-08-0043-28, dated March 7, 2007. Exhibit 50 Agreement betweenMontrose County and Barnard Dunkel berg and Company, dated February 17,2004. Exhibit 51 Study Committee, Montrose Regional Airport Master PlanUpdate, dated December 9, 2004. Exhibit 52 Letter from Alan Wiechmann, Manager, Denver ADO, to David Gann, Chairman, Board ofCounty Commissioners, with strike out and note, dated June 20, 1997. Exhibit 53 Airport Layout Plan for Montrose Regional Airport, Montrose, CO, dated January 20, 1997. Exhibit 54 Letter from John Bauer, Acting Manager, Denver Airports District Office, to Jeannette Anderies, Acting Director ofAviation, Montrose Regional Airport, dated November 14, 2007. Exhibit 55 Airport Layout Plan (depicting land acquisition) for Montrose Regional Airport, Montrose, CO, dated July, 2007. Exhibit 56 Airport Layout Plan (depicting land acquisition) for Montrose Regional Airport, Montrose, CO, (color version) dated July, 2007. Exhibit 57 Letter from Robert J. Hill, Montrose County Attorney to John Bauer, Assistant Manager, FAA Denver Airports District Office, dated May 16, 2008. Exhibit 58 Letter from Robert J. Hill, Montrose County Attorney to John Bauer, Assistant Manager, FAA Denver Airports District Office, dated May 23, 2008. Exhibit 59 SettlementAgreement between Montrose County Board of Commissioners and Jet Center Partners, dated February 4, 2008. Exhibit 60 Findings ofFact, Conclusions ofLaw and Order, District Court, Montrose County, Colorado, dated June 30, 2008.

9

### Exhibit 61 Plaintiffs' Motion to Reopen the Evidence, District Court, Montrose County, CO, dated June 24, 2008 (with exhibits). Exhibit 62 Response ofthe Board ofCounty Commissioners ofthe County of Montrose, CO, to the Motion to Reopen the Evidence, District Court, Montrose County, CO, dated July 9, 2008 (with exhibits). Exhibit 63 Plaintiff's Motion toLift Stay ofProceedings or in the Alternative Motion for Clarification, U.S. District Court for the District of Colorado, dated July 11, 2008 (with exhibits). Exhibit 64 webpage printout (http://airport consultants.netlhodges

_main.htrn), regarding Airport Business Solutions and Michael A. Hodges, dated June 4, 2008. Exhibit 65 webpage printout (http://www.almexperts.com/ExpertWitness/ RecordDetail.aspx?record=8406481&pf=true), regarding Michael A. Hodges as an expert witness, dated June 4, 2008. Exhibit 66 Newspaper articles from the website, SignonSanDiego.com, including the following: "Aguirre investigates no-bidjobs OK'd by ex-airport director," dated December 4, 2005 and "Ex-airports boss sued by city attorney," dated December 14, 2005. Both articles appear under the San Diego Union-Tribune 

### masthead. Exhibit 67 Complaint to Rescind Illegally Awarded Public Contracts; to Recover Money Had and Received; Violations ofthe Unfair CompetitionAct; and Violations ofthe False Claims Act, filed by the City ofSanDiego against Tracy L. Means, Michael Hodges, et al in Superior Court ofCalifornia, County ofSan Diego, dated December 13,2005. Exhibit 68 FBO Site Analysis for Montrose Regional Airport prepared for JetAway Aviation by Stantec, dated July 2008. Exhibit 69 Aerial photograph ofMontrose Regional Airport, showing aircraft traffic, undated. Exhibit 70 Excerpt from a document titled "Working Paper Five," dated October 2005. Exhibit 71 webpage printout from www.aimav.com, dated July 9, 2008. Exhibit 72 Drawing titled "Figure 4-3 MJC Facility Site Plan- Alternate Taxiway "E" Locations Montrose Regional Airport," undated.

10

### Item6 Exhibit 73

Exhibit 74
Exhibit 75 Addendum to the FBO Site Analysis from Stantec (see FAA Item 5, Exhibit 68), dated August 7, 2008 (filed by Complainant's motion on August 8, 2008). Letter from counsel to JetAway to counsel to Montrose County, offering settlement, dated August 6, 2008. Draft Settlement Agreement with drawings between Montrose County and JetAway, dated August 6, 2008. Rebuttal and Motion to Dismiss, 

### dated August 15, 2008. Exhibit CC District Court, Montrose, Colorado, Case No. 2006CV18, 2006CV25, Transcript ofHearing head onNovember 20,2007. Exhibit DD District Court, Montrose, Colorado, Case No. 2006CV25, Transcript ofHearing, page 57. Exhibit EE District Court, Montrose, Colorado, Case No 2006CV18, 2006CV25, 2006CV126, Transcript ofMichael Hodges Testimony, page 50. Exhibit FF Conference/Motion for Clarification Transcript ofProceedings, U.S. District Court, Case No. 07-VC-02563-RPM, pages 9-10. Exhibit GG The Response OfThe Board OfCounty Connnissioners OfThe County OfMontrose, Colorado, To The Motion To Reopen The Evidence Filed By Jetaway Avation, LLC, One Creative Place, LLC, And KMTJ Fuel, LLC. District Court, Montrose County, CO, Case No. 2006CV18, 2006CV25, 2006CV126 with 7 exhibits, dated July 9, 2008. Exhibit HH District Court, Montrose, Colorado, Case No 2006CV18, 2006CV25, 2006CV126, Transcript ofMichael Hodges Testimony, pages 15-20. Exhibit II Plantiffs' Reply in Support ofMotion to Reopen The Evidence, District Court, Montrose County, CO., Case No. 2006CV18, 2006CV25, 2006CV126, with exhibits A-S, dated July 21, 2008. Exhibit JJ 

### Order Regarding Pending Motions, District Court, Montrose County, CO., Case No. 2006CV18, 2006CV25, 2006CV126, dated July 25, 2008.

11Exhibit KK Letter from Lloyd D. Arnold, Director ofAviation, Montrose Regional Airport, to John Bauer, AssistantManager, Denver ADO, Federal Aviation Administration, dated July 11, 2008. Exhibit LL Montrose Regional Airport, Airport Layout Plan dated July 2008. Exhibit MM Newspaper article from Montrose Press, dated August 8, 2008, regarding a settlement offer proposed by JetAway. ExhibitNN

ExhibitOO

ExhibitPP

Exhibit QQ

Exhibit 1

Exhibit2

Exhibit 3 Exhibit4 Exhibit 5 Exhibit 6

Exhibit 7 Exhibit 8 Letter from Mark E. Haynes, Ireland, Stapleton, Pryor & Pascoe, P.C., to Lloyd Arnold, Director ofAviation, Montrose Regional Airport, regarding JetAway's application for an Access Permit, dated July 29, 2008. Letter from Robert Hill, Montrose County Attorneyto Mark Haynes, Ireland, Stapleton, Pryor & Pascoe, P.C., dated August 7, 2008. West's Colorado Revised Statutes- Colorado Sunshine Law, Open Meetings Law, dated August 12, 2008. U.S. District Courtforthe District ofColorado, Case No. 1:07-cv02563-RPM, JetAway Aviation, LLC v. The Board ofCounty Commissioners, Montrose, Colorado- The Montrose Defendents' Opposition to Motionto Lift Stay ofProceedings or inthe Alternative Motion for Clarification, dated August 11, 2008. District Court, Montrose County, Colorado, Transcript ofhearing held onNovember 20, 2007, Case No. 2006CV18, 2006CV25, 2006CV126. District Court, Montrose County, Colorado, Case No. 2006CV18, Plantiffs' Reply 

### In Support OfMotion To Reopen The Evidence, dated July 21, 2008. District Court, Montrose County, Colorado, Case No. 2006CV18, Order Regarding Pending Motions, dated July 25, 2008. Advisory Circular 150/5070-6B (Airport Master Plans), dated May 1, 2007. Director's Determination 16-06-01, pages 1-2 and 34-35, dated November 6, 2006. District Court, Montrose County, Colorado, Case No. 1:07-cv02563-RPM, JetAway Aviation, LLC v. Board ofCounty Commissioners, Exhibits 6 & 7 To The Montrose Defendents' Opposition To Motion To Lift Stay OfProceedings Or In The Alternative Motion For Clarification, datedAugust 11, 2008. Duplicate ofExhibit 6 above. Affidavit ofLloyd Arnold, dated July 8, 2008.

12Item 7
ItemS
Item9 

### Exhibit 9 Letter from John Bauer, Acting Manager, Denver Airports District Office, to Jeannette Anderies, Acting Director ofAviation, Montrose Regional Airport, dated November 14,2007. Exhibit I0 Letter from Michael Hodges, President, Airport Business Solutions, to Brian Magoon, dated February 4, 2008. Exhibit 11 Agreement Between Barnard Dunkelberg & 

### Company, Inc, and Carter & 

### Burgess, dated September 15,2004. Exhibit 12 Contract between Montrose County, CO and Carter & 

### Burgess, to perform engineering services at the Montrose Regional Airport, dated March 6, 2006. Exhibit 13 Montrose Regional Airport, Airport Layout Plan depicting proposed land acquisition, dated July 2008. Exhibit 14 FBO Site Analysis, prepared for JetAway Aviation, dated July 2008. Exhibit 15 FAA Advisory Circular 150/5300-13, "Airport Design," dated September29, 1989. Exhibit 16 Letter from Stantec Consulting, Inc., to Stephen Stulnner, JetAway Aviation, regarding clarifications to the FBO Site Analysis (see Exhibit 15), dated August 7, 2008. Exhibit 17 District Court, Montrose County, State ofColorado, CaseNo. 2006CVI8, 2006CV25, 2006CV126, Partial Transcript ofHearing Held onMay 7, 2008. Exhibit 18 Proceedings ofthe Board ofMontrose County Commissioners, dated February 5, 2007. Exhibit 19 Case cite: Local 812 GIPA, Plaintiff- against Canada Dry Bottling Co. ofNewYork and Manhattan Beer Distributors, dated December 20, 2000. Exhibit RR District Court, Montrose County, State ofColorado, Case No. 2006CV18, 2006CV25, 2006CV126, Transcript ofMichael Hodges Testimony, dated May 6, 2008. Exhibit SS Taxiway "E" Relocation construction costtotals, not dated. Complainant's Motion to File Exhibit 73 to Complainant's Reply, 

### dated August 8, 2008 (See Item 5, Exhibit 73, above). Complainant's Motion to File Exhibits 74 and 75, 

### dated August 20, 2008 (See Item 5 Exhibits 74 and 75, above). Respondents' Motion to Supplement Record, 

### dated September 25, 2008. Exhibit TT Letter from Kevin R. Kennedy ofByrne, Kiely & 

### White to John Bauer, FAA, dated August 6, 2008, regarding proposed airport layout plan.

13

### ExhibitUU Letterfrom Craig Sparks, Manager, DenverADO, to Lloyd Arnold, Montrose Regional Airport, dated September 8, 2008, regarding review ofproposed airport layout plan. Exhibit VV Copy ofAirport Layout Plan for Montrose Regional Airport, dated August 2008. Exhibit WW Letter from LloydArnold, Montrose Regional Airport Director of Aviation, to Steve Stuhmer ofJetAway, dated September 8, 2008, forwarding an airport Access Permit Agreement. Exhibit XX Letter from Mark E. Haynes, counsel to JetAway, to Robert J. Hill, Montrose County Attorney, dated September 15,2008. Item 10

Item 11 Complainant's Answer To Respondents' Motion to Supplement Record, 

### dated October 8, 2008. Respondent's Second Motion to Supplement Record, 

### dated November 25,2008. Exhibit YY Temporary Restraining Order from Montrose CountyDistrict Court, dated November 14, 2008. Exhibit ZZ Transcript ofJudge's Ru1ing from Hearing Held onNovember 14, 2008 in Montrose County District Court, State ofColorado. Item 12 Complainant's Answer to Respondent's Second Motion to Supplement Record, 

### dated December 8, 2008. Exhibit 76 Letter from Mark E. Haynes, counsel to JetAway, to Robert J. Hill, Montrose County Attorney and Board ofCounty Commissioners, dated November 17, 2008. Item 13

Item 14

Item 15 FAA Order acknowledging the parties' multiple motions to supplement the record and extending the due date ofthe Director's Determination to April3, 2009, 

### dated December 16, 2008. Complainant's Motion to Supplement Record, 

### dated February 24, 2009. Exhibit 76(a) Letter from Stantec Consu1tingto Stephen Stuhmer, dated February 23, 2009. Respondent's Answer to Complainant's Motion to Supplement Record, 

### dated February 27, 2009.

14

### Exhibit AAA Hangar Lease between Montrose County and Heliqwest International, Inc., dated February 11, 2009. Item 

### 16 Complainant's Reply to Respondent's Answer to Complainant's Motion to SupplementRecord, dated March 3, 2009. Exhibit 77 Letter from Stefania C. Scott, counsel to JetAway, to Robert J. Hill, Montrose County Attorney, dated February 13, 2009. Item 

### 17 FAA 

### Order acknowledging the parties' additional motion to supplement the record and extending the due date ofthe Director's Determination to May 29, 2009, dated March 27, 2009. Item 18 FAA 

### Order extending the due date oftheDirector's Determination to June 30, 2009, dated June I, 2009.

15FAA Docket No. 16-08-01 Figura 04 Gonerml Aviation Fscllltlsa. DIWI\ll«tpment CooeoptPal Layout (In Consideration

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2 -Master Plan Update Map Altered for Illustrative Purposes (not to scale, depiction

is approximate) Aviation Development Area Roadway Access Trudwav Accetso lfbafstlng Airport Buildings Future TDM;Iway/Apron

;:-s 1 : Montrose Regional Airport**~~~U.S.** DEPARTMENT OF TRANSPORTATION 

### 'flill/l FEDERAL AVIATION ADMINISTRATlON

> 1 ASSOC CITY: MONTROSE AIRPORT MASTER RECORD
4 STATE: CO LOG 10: MTJ PRINT DATE: 06/19/2009 AFD EFF 05107/2009 Fonn Approved OMB 2120-0015 FAA SITE NR: 02692."A >2 AIRPORT NAME: MONTROSE RGNL 3 CBO TO AIRPORT INMl: 01 NW 6 REGIONIAOO: ANMfDEN 5 COUNTY: MONTROSE CO 7 SECTAERO CHT: DENVER , GENERAL SERVICES PU >70 FUEL: 100LlA+ 10 OWNERSHIP: > 11 OWNER: MONTROSE COUNTY-BUILDING AUTHORITY
> 12 ADDRESS:

> 13 PHONE NR: > 14 MANAGER: > 15 ADDRESS: 1!31 S. TOWNSEND MONTROSE, CO 81401 970-249-7755 LLOYD ARNOLD 2100AIRPORTROAD MONTROSE, CO 81401 > 16 PHONE NR 970-249-3203 > 17 ATIENDANCE SCHEDULE: APR1-DEC ALL 0530-2100 15 DEC16-MA ALL 0500-2100 R31 18 AIRPORT USE: PUBUC >71 AIRFRAME RPRS: MAJOR >72 PWR PLANT RPRS: MAJOR > 73 BOTTLE OXYGEN: HIGH >74 BULK OXYGEN: HIGH 75 TSNT STORAGE: HGR, TIE 76 OTHER SERVlCES: AMB, lNSTR, RNTL
FACILITIES >80 ARPT BCN: CG >81 ARPT LGT SKED: DUSK-DAWN >62 UNICOM: 122.800 > 83 WIND INDICATOR: YE5-L

84 SEGMENTED CIRCLE: YES 19 ARPT LAT: 38-30-35.2650N ESTIMATED 20 ARPT LONG: 107-53-39.2760W 85 CONTROL TWR: NONE 21 ARPT ELEV: 5759 SURVEYED 86 FSS: DENVER NO 22 ACREAGE: 966**~** 23 RIGHTTRAFFIC: NO >24 NON-COMM LANDING: NO 25 NPIAS/FED AGREEMENTS:NGY**~** 26 FAR 139lNDEX: , 8 s 05/1973 RUNWAY DATA**~** 30 RUNWAY !DENT:**~31** LENGTH: >32 WIDTH: >33 SURF lYPE-COND: >34 SURF TREATMENT: 35GROSSWT: sw 36 (IN THSDS) ow 37 DTW 36 DDTW ,.39 PCN: I AIDS >40 I HY'**~** -42 RW'f MARK TYPE-COND: >43 VGSI: 44 THR CROSSING HGT: 45 VISUAL GLIDE ANGLE: >46 CNTRLN-TDZ:**~47RVR-RW:** >48 REIL: >49 APCH LIGHTS: <DATA

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# -· ...... wCERTIFICATE OF SERVICE

I HEREBY CERTIFY that onJuly 2, 2009, I caused to be placed in the United States mail (first class, postage paid) orpersonally delivered a true copy ofthe foregoing ORDER addressed to: William White, Esq. BYRNE, KNUDSEN, & WHITE, LLP 1120 Lincoln Street, Suite 1300 Denver, Colorado 80203 Counsel for Complainant Brian

### A. Magoon, Esq. ROBINSON WATERS & O'DORISIO, PC 1099 18th Street, Suite 2600 Denver, Colorado 80202 Counsel for Respondent Robert J. Hill, Esq. Acting Montrose County Attorney 161 South Townsend Avenue Montrose, Colorado 81401 Counsel for Respondent Copy to: FAAPart 16 Airport Proceedings Docket AC0-100