BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

CEI W 

SEP 2 2 2009 

/Hi 

AIRPORT/ENVIRONMENTAL 

LAW, AGC-600 

SKYDIVE SACRAMENTO, 

Complainant, 

V. 

THE CITY OF LINCOLN, CALIFORNIA, 

Respondent. 

Docket No. 16-09-09 

RESPONDENT'S ANSWER 

Please serve: 

Scott P. Lewis 

Christine M. Griffin 

ANDERSON & KREIGER LLP 

One Canal Park, Suite 200 

Cambridge, MA 02141 

T: 617.621.6560 

F: 617.621.6660 

slewis@andersonkreiger.com 

cgriffin@andersonkreiger.com 

Counsel for Respondent 

September 21,2009 
BEFORE THE 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

SKYDIVE SACRAMENTO, 

Complainant, 

V. 

THE CITY OF LINCOLN, CALIFORNIA, 

Respondent. 

Docket No. 16-09-09 

RESPONDENT'S ANSWER 

The respondent. City of Lincoln, California (the "City"), submits this answer, under 14 

C.F.R. § 16.23(d), to the Complaint ("Complaint") by Skydive Sacramento ("Skydive").' 

Skydive's Complaint fails to provide a clear and concise statement of the facts Skydive relies 

upon, as required by 14 C.F.R. § 16.23(b)(3). Instead, the Complaint is a tangled and incoherent 

mix of repetitive factual allegations and legal arguments and, like some other complaints under 

Pt. 16, Skydive's complaint is presented in narrative form, rather than in consecutivelynumbered paragraphs.^ All of this has made it difficult for the City to prepare a response to 

Skydive's factual allegations. To facilitate the FAA's review of the pleadings, the City has 

hand-numbered the individual paragraphs of Skydive's complaint on the attached copy of the 

' To accommodate the schedule of the City's federal regulatory counsel, the FAA granted the City an 

extension of time, until September 21, 2009, to file its Answer. 

^ In the future, when the FAA dockets a complaint in this form it should require the complainant to refile the 

complaint with consecutively-numbered paragraphs before demanding an answer from the respondent. 
complaint. The City will refer to the paragraphs of Skydive's complaint by number in this 

answer. The City will not address Skydive's legal arguments here. The City has moved to 

dismiss the Complaint and will present its legal arguments in the memorandum supporting its 

mofion to dismiss. 

The City responds as follows to the individual paragraphs of Skydive's Complaint.^ 

1. The City neither admits nor denies because of insufficient knowledge or 

information that Skydive Sacramento is the name under which 80896, L.L.C. operates. The City 

neither admits nor denies because of insufficient knowledge or information that 80896, L.L.C. is 

a California L.L.C. or that its address is 2896 Fox Den Circle, Lincoln, California, 95648. The 

City admits that Skydive is a commercial aeronautical user of the Lincoln, California Regional 

Airport (the "Airport"). With regard to the fourth sentence in this paragraph, to the extent that 

this sentence consists of legal conclusions and introductory remarks, no response is required. As 

to the remaining allegations contained in this sentence, the City admits that it is the owner and 

sponsor of the Airport, and denies the remaining allegations contained in this sentence. The City 

admits that Timothy Hayes ("Hayes") is one of its attorneys and that Hayes may be reached at 

422 Century Park Drive, Suite A, Yuba City, California, 95991. The City admits that the City 

Manager is Jim Estep and that he may be reached at 600 Sixth Street, Lincoln, California, 95648. 

As to the last sentence in this paragraph, denied. As to any allegations contained in this 

paragraph that have not been specifically admitted, denied. 

The City submits with this Answer an accompanying volume of Supporting Evidentiary Materials. The 

City refers to its own exhibits as "City Ex. "; the City refers to exhibits submitted by Skydive as "Skydive 

Ex. ." 
2. With regard to the first sentence of paragraph 2, denied. The City states that Pat 

Garcia ("Garcia"), who is the proprietor of Skydive, first contacted the Airport regarding a 

possible skydiving and parachute landing area (a "drop zone") in September and October of 

2007. The City requested that Skydive submit a written proposal so that the City could evaluate 

the proposal, and in particular, so that the City could review any potential safety issues. Skydive 

submitted a written proposal for a parachute landing area to the City during the week of 

December 10, 2007. The written proposal was for a parachute landing area only, to be located 

on the west side of the Airport. It did not seek permission to build any buildings on Airport 

property near the drop zone. 

With regard to the second sentence of paragraph 2 the City admits that it denied 

Skydive's application to put a drop zone on Airport property, citing safety issues. The City 

states that the City Airport Advisory Committee first considered Skydive's application at its 

meeting on January 9, 2008. A number of concerns were raised at that meeting regarding air 

traffic safety, given the proximity of the proposed drop zone to existing flight paths and Airport 

traffic patterns. The Committee determined that additional investigation was required, and 

during the winter and early spring of 2008, the City contacted Jim Hinson at FAA's Sacramento 

FSDO, Racior Cavole at FAA's San Francisco ADO, and Rick Stockton at FAA's Sacramento 

FSDO to discuss the safety implications of the proposed drop zone. These FAA representatives 

also raised safety issues and concerns about the proposed drop zone. Based on the safety 

concerns raised by the City and by FAA, the City denied Skydive's proposal on April 9, 2008, 

with a copy sent to FAA's Sacramento FSDO and FAA's San Francisco ADO {see Skydive 

Ex. 28). Skydive was advised at that time that it could appeal the decision to the City Council. 

Skydive did not make any such appeal. As to the remaining allegations contained in this 
paragraph, the City has not been formally notified that Skydive filed a Part 13 Notice of 

Violation with the FAA and is unaware of any action that has been taken on that notice. To the 

extent that the remaining allegations in this paragraph consist of legal arguments or conclusions, 

no response is necessary. As to any allegations contained in this paragraph have not been 

specifically admitted, denied. 

3. With regard to the first sentence of paragraph 3, the City admits that it consulted 

with Jim Hinson at FAA's Sacramento FSDO, Racior Cavole at FAA's San Francisco ADO, and 

Rick Stockton at FAA's Sacramento FSDO regarding the safety issues raised by Skydive's 

proposal. The City initiated these consultations in early 2008 and then had ongoing discussions 

with both the Sacramento FSDO and the San Francisco ADO. A more formal review was 

undertaken by the Sacramento FSDO and the San Francisco ADO during September, October 

and November of 2008, and the City requested that the FAA Sacramento issue a formal FSDO 

opinion at that time {see City Exs. 1 & 2). This culminated in a conditional safety letter being 

issued by FAA on November 21, 2008 {see Skydive Ex. 3). The City lacks sufficient 

information to admit or deny whether the FAA ADO directed the Sacramento FSDO to conduct 

the review. As to the remaining allegations in this sentence, denied. 

With regard to the second and third sentences of this paragraph, the City admits that in 

September of 2008, the City held a conference call with the Sacramento FSDO and the San 

Francisco ADO to discuss the Skydive matter {see City Ex. 1). During this conference call the 

Sacramento FSDO reduced its expressed level of concern over the safety issues posed by a drop 

zone located on the Airport and indicated some support for a conditional drop zone on Airport 

property. This was the first indication that the Airport had received that the FAA Sacramento 

FSDO might have relaxed its view on the safety issues. During this phone call, it was agreed 
that a meeting should be arranged with Skydive, including the FAA San Francisco ADO, the 

Sacramento FSDO, and the Airport. That meeting took place on October 15, 2008. Skydive was 

asked at the meeting to prepare an operation plan for a conditional drop zone on the Airport {see 

City Ex. 1). Subsequent to the meeting, in a letter dated November 5, 2008, Garcia of Skydive 

again requested an on-Airport drop zone without providing the operational plan that had been 

requested. In November 2008, the Airport met with FAA representatives Jim Hinson and Rick 

Stockton to discuss the Skydive proposal. During the meeting, the Sacramento FSDO informed 

the Airport that it believed that skydiving activities on the west side of the Airport could be 

safely conducted under certain operating conditions while the Runway 33 (the nearest Runway) 

traffic pattern was active. The Sacramento FSDO also provided a letter to the City to this effect 

dated November 21, 2008 {see Skydive Ex. 3). As to any allegations contained in this paragraph 

that have not been specifically admitted, denied. 

4. With regard to paragraph 4, the City states that the October 18, 2008 letter from 

the Northern California Radar Approach ("TRACON") speaks for itself As to the remaining 

allegations contained in this paragraph, denied. 

5. With regard to paragraph 5, the City states that, in the wake of the November 21, 

2008 letter from the Sacramento FSDO, Skydive again requested an on-Airport drop zone and 

also simultaneously indicated that it would begin using an off-Airport drop zone or zones. 

Skydive had begun looking for an off-Airport drop zone during the spring of 2008. 

Skydive also applied for a City business license on March 27, 2008. The license application was 

for operation of a skydiving business on the Airport without a drop zone. By City Ordinance 

(Lincoln Municipal Code ("LMC") 20.04.050), insurance is required before any business can 

operate at the Airport {see City Ex. 3). The City's own insurance provider recommended that 
Skydive obtain an insurance policy with a $ 1,000,000 limit, consistent with the City Ordinance. 

All commercial operators on the Airport must also enter into an agreement with the City 

governing their operations. The Agreement between Skydive and the City was approved on 

May 14, 2008 as part of Skydive's application for a Business License to operate on the Airport. 

Skydive provided proof of insurance coverage, pursuant to the Ordinance and the Agreement, on 

June 6, 2008. The Business License was issued by the City on June 18, 2008. 

At or about that time, Skydive began pursuing a drop zone on private property located 

directly adjacent to, and west of, the Airport known as the Weygandt Property. Skydive 

proposed that a drop zone on this property would operate conditionally depending on air traffic 

patterns and would alternate with another off-Airport drop zone located one to two miles from 

the Airport. The City had no objection to the off-Airport drop zone that was located one to two 

miles from the Airport, so long as it was operated within safety guidelines. That drop zone is 

located in the County, outside the City, and is not subject to City ordinances and by-laws. 

However, the City did have objections to the use of the Weygandt off-Airport drop zone, located 

adjacent to the Airport, based on safety concerns contained in applicable City zoning by-laws. 

Between April and September of 2008, the City consulted with Jim Hinson at the 

Sacramento FSDO, regarding Skydive's proposed off-Airport drop zones and the air traffic 

safety concerns raised by the proximity of the Weygandt Property to the Airport. The 

Sacramento FSDO supported establishing the drop zone on the property located one to two miles 

from the Airport outside of the Airport traffic patterns. 

Despite the zoning and other concerns raised by the City, beginning in December 2008, 

Skydive indicated that it would begin using the off-Airport drop zones, and in January of 2009 

Skydive began using the Weygandt Property for parachute landing. 
At the same time, in late 2008, Skydive renewed its request for an on-Airport drop zone. 

The City responded to this request by providing Skydive, on December 19, 2008, with a 

proposed on-Airport ground lease for a drop zone {see Skydive Ex. 5). On January 6, 2009, the 

City received a letter from Richard Durden ("Durden"), a lawyer representing Skydive, 

containing objections to the ground lease and outlining Skydive's renewed request for an onAirport drop zone {see City Ex. 4).. No building improvements on the Airport near the drop 

zone were proposed in this letter. Instead, Durden proposed that parachuters simply land in the 

drop zone, "pick up their parachutes and walk to a spot on the closed runway where the 

parachutes could be repacked and the skydivers could board" a plane for another jump {see City 

Ex. 5 at 3). This letter also threatened the City with a Part 16 Complaint if the City did not 

comply with Durden's demands. As to any allegations contained in this paragraph that are not 

specifically admitted, denied. 

6. With regard to paragraph 6, the City states that the January 16, 2009 email speaks 

for itself As to any additional allegations contained in this paragraph, denied. 

7. With regard to paragraph 7, the City lacks information sufficient to admit or deny 

the allegations. 

8. With regard to paragraph 8, the City states that Durden's February 9, 2009 email 

speaks for itself. As to the remaining allegations in this paragraph, denied. The City states that 

on January 7, 2008, Hayes sent a letter to Skydive regarding the zoning concerns implicated by 

the off-Airport drop zone on the Weygandt property. In early February 2009, Hayes contacted 

Durden by phone to indicate that he would review and revise the proposed lease, as requested by 

Skydive, and that he would provide an additional draft lease for fiirther review by Durden and 

Skydive. A new draft lease was provided to Skydive by the City, containing concessions that 
had been requested by Skydive, on March 9, 2009 {see Skydive Ex. 9). Because Durden had 

threatened litigation over these issues in his January 6, 2009 letter to the Mayor and City Council 

members, the City determined that additional communications between the parties on this matter 

should take place between the lawyers, and Hayes took over communication with Durden 

regarding this matter. As to any additional factual allegations contained in this paragraph, 

denied. 

9. With regard to paragraph 9, the City admits that after Durden threatened litigation 

with the City in his January 6, 2009 letter, the City communicated with Durden through Hayes 

and did not agree to a meeting between principals. As to any allegations contained in this 

paragraph that are not specifically admitted, denied. 

10. With regard to paragraph 10, the City states that Durden's March 2, 2009 email 

speaks for itself The City states that a second draft drop zone lease was provided to Skydive on 

March 9, 2009 {see Skydive Ex. 9). The City lacks information sufficient to admit or deny 

whether the draft lease was sent on to the FAA ADO by Complainant on March 10, 2009, 

alleging that it did not comply with the City's grant obligations. As to any remaining allegations 

contained in this paragraph that have not been specifically admitted, denied. 

11. With regard to paragraph 11, the City lacks information sufficient to admit or 

deny the allegations. 

12. With regard to paragraph 12, the City states that Durden's March 18, 2009 email 

speaks for itself As to any additional allegations contained in this paragraph, denied. 

13. With regard to paragraph 13, the City states that Durden's March 23, 24, 25 and 

April 2, 13 and 21, 2009 emails speak for themselves. As to any additional allegations contained 

in this paragraph, denied. 
14. With regard to paragraph 14, the City admits that it did not meet with Skydive in 

March or April, 2009, regarding the proposed drop zone. As to any additional allegations 

contained in this paragraph, denied. 

15. With regard to paragraph 15, the City admits that, in the wake of Durden's 

January 6, 2009 letter, which threatened litigation against the City, the City determined that its 

lawyer, Hayes, should be the contact person with Skydive on these issues and therefore that City 

principals did not contact Skydive concerning these issues. The City fijrther states that since 

approximately January 1, 2009, the Airport manager has not received any phone calls or phone 

messages from Skydive regarding the proposed leases for the drop zone. As to any additional 

allegations contained in this paragraph that are not specifically admitted, denied. 

16. With regard to paragraph 16, the City admits that on April 30, 2009, a third draft 

drop zone lease (the "Lease") was sent by the City to Skydive containing revisions made in 

response to Skydive's requests {see City Ex. 5; Skydive Ex. 19). On or about May 1, 2009, 

Durden and Hayes had a phone call regarding the status of the draft lease, and Durden emailed 

Hayes regarding the draft lease {see Skydive Ex. 20). 

The City ftirther states that while the City was negotiating the draft leases with Skydive, 

the City consulted with FAA several times, by phone, by letter, and by email concerning the 

status of the negotiations and the terms of the proposed lease {see City Exs. 6-11). As to the 

remaining allegations contained in this paragraph, denied. 

17. With regard to paragraph 17, to the extent that this paragraph consists of 

conclusions of law, no response is required. The City lacks information sufficient to admit or 

deny whether the FAA ADO has been unwilling to respond to Skydive's requests or Skydive's 

Part 13 complaint. As to the remaining allegations contained in this paragraph, denied. 
18. With regard to paragraph 18, the City admits that Skydive is in the business of 

providing skydiving instruction and services to skydivers, that Garcia has previously rented 

hangar space on the Airport and that Skydive has rented hangar and office space on the Airport 

since 2008. With regard to the remaining allegations contained in this paragraph, denied. 

19. With regard to paragraph 19, the City admits that it is the sponsor of the Airport. 

The City admits that the Airport is a moderate sized, non-towered airport and that it does not 

have scheduled airline service. The City states that the Airport is a designated Regional Reliever 

Airport and services light aircraft and large business class jet aircraft and includes an FAAowned and operated Instrument Landing System. The City admits that the Airport currently 

occupies about 775 acres. The City admits that the Airport was built by the U.S. Government for 

the U.S. Army Air Force during World War II. The City admits that the WWII airfield had four 

runways, three of which are no longer operational. The fourth runway (15-33) has been 

reconstructed twice and extended to its present length. The City admits that its website reports 

81,000 aircraft operations for 2007. The City admits that it has not published data regarding 

aircraft operations for 2008 or 2009. The City admits that FAA data for 1993 show 71,000 

annual operations. The City states that approved forecasts for the Airport show 83,911 annual 

aircraft operations for 2008 and 99,000 annual operations for 2015. The 2008 and 2015 numbers 

were adopted (October 2008) by the City in the Airport Master Plan and were reviewed and 

approved by the FAA's San Francisco ADO. As to the remaining allegations contained in this 

paragraph, denied. 

20. With regard to paragraph 20, the City states that the cited federal regulation and 

the United States Parachute Association Skydiver's Information Manual speak for themselves. 

The City states that to the extent that this paragraph contains conclusions of law, no response is 

10 
required. The City admits that the proposed Lease contains provisions for a drop zone consisting 

of a skydive and parachute landing site. The City admits that the proposed Lease does not 

contain provision for construction of any building or improvements on the drop zone. As to the 

remaining allegations contained in this paragraph, denied. 

21. With regard to paragraph 21, the City admits that Skydive is one of the larger 

purchasers of fuel based at the Airport. The largest purchasers of fiiel from the Airport, 

however, are not based at the Airport. The City lacks information sufficient to admit or deny 

whether Skydive's business had been reasonably good through the recession. As to any 

remaining allegations contained in this paragraph, denied. 

22. With regard to paragraph 22, the City admits that there is open space on the west 

side of the Airport and that this space is near portions of two abandoned runways. The City 

admits that part of the west side of the Airport is used to store debris. City vehicles and new City 

trash receptacles. The City admits that one non-aviation tenant, DeSilva Gates FCI, a Joint 

Venture of DeSilva Gates Construction and FCI Constructors, Inc. ("DeSilva"), has been 

permitted to use the west side of the Airport. DeSilva's non-aviation lease is for temporary 

construction management offices that are being used during the construction of the nearby 

Lincoln State Highway 65 Bypass project, a $175 million highway project fiinded by federal, 

state and local funds. DeSilva's lease is for a 1-year term that is renewable, and its use of the 

leased premises is limited to temporary offices and storage of minor construction equipment. 

The lease site and construction offices are not open to the general public. This site is located in a 

"non-aviation" area as shown on the Airport's FAA-approved Airport Layout Plan {see City 

Ex. 12). No utilities run to the temporary offices, except for a temporary electricity connection. 

The City states that an additional non-aviation tenant. Energy Absorptions Inc. ("Energy 

11 
Absorptions"), which is engaged in the business of conducting crash tests involving automobiles 

and highway equipment, uses part of the abandoned runway on the west side of the Airport for 

crash tests. No structures have been erected by this non-aviation tenant. This tenant's lease is 

for a 2-year term. With regard to the exhibits cited in this paragraph, they speak for themselves. 

As to the remaining allegations contained in this paragraph, denied. 

23. With regard to paragraph 23, the City states that Garcia, the proprietor of Skydive, 

first contacted the City regarding a possible skydiving and parachute drop zone in September and 

October of 2007. The City requested that Skydive submit a written proposal so that the City 

could evaluate the proposal, and in particular, so that the City could review any potential safety 

issues. Skydive submitted a written proposal for a drop zone to the City during the week of 

December 10, 2007. The written proposal was for a drop zone only, on the west side of the 

Airport. It did not seek permission to build any buildings on Airport property near the drop 

zone. The City states that DeSilva and Energy Absorptions have been permitted to engage in 

limited activities on the west side of the Airport, as described in paragraph 22, above. DeSilva's 

lease term commenced on September 1, 2008. Energy Absorptions' lease term commenced on 

June 15, 2006. 

The City admits that Skydive initially requested to use large tracts of unimproved land on 

the west side of the Airport as drop zones. Skydive has offered several different proposals for a 

drop zone on the west side of the Airport. Some of these proposals included the land now used 

by DeSilva and Energy Absorptions. The City agrees that Skydive has not complained in this 

action about the location of the drop zone described in the Lease. The City admits that it has not 

agreed to permit Skydive to erect a structure on the west side of the Airport near the drop zone. 

The City admits that it has permitted DeSilva to place temporary construction office trailers on 

12 
the west side of the Airport in connection with the construction of the nearby Lincoln State 

Highway 65 Bypass project. As to the remaining allegations contained in this paragraph, denied. 

24. With regard to paragraph 24, the City states that the Airport security fence 

surrounds all improved Airport facilities including aircraft hangars, ramps, taxiways and 

runways. The portions of the Airport property outside of the security fence on the west side of 

the Airport have a perimeter barbed-wire fence. The drop zone described in the Lease is located 

in this space on the west side of the Airport between the barbed-wire fence and the Airport 

security fence. Skydive proposes to have its customers land in the drop zone and then walk 

through a gate back to an area inside the security fence where they can re-board a plane for 

additional jumps, again landing in the drop zone. The City admits that it does not object to this 

proposal so long as it is carried out consistent with all safety guidelines, and fiirther admits that 

provision for this activity is made in the Lease. The City admits that there is vehicle access to 

the drop zone site from the road running along the west side of the Airport. The City admits that 

this vehicle access is currently being used by non-aviation vehicles. As to the remaining 

allegations contained in this paragraph, denied. 

25. With regard to paragraph 25, the City understands that Skydive has pursued offAirport drop zones and has been using at least one of those drop zones since at least January of 

2009. The City lacks information sufficient to admit or deny the remaining allegations contained 

in this paragraph. 

26. With regard to paragraph 26, denied. 

27. With regard to paragraph 27, the City admits that the basis for its initial denial of 

the drop zone application was safety concerns that were shared by the City and the FAA's 

Sacramento FSDO and discussed with the FAA's San Francisco ADO. The City admits that it 

13 
received a letter dated November 21, 2008 from the Sacramento FSDO which indicated that 

Skydiving activities on the west side of the Airport could safely be conducted under certain 

operating conditions while the Runway 33 traffic pattern was active. The City denies that it 

"claimed" that its reason for denial was safety; the City states that its actual reason for the initial 

denial was safety. The City lacks information sufficient to admit or deny the remaining 

allegations contained in this paragraph. 

28. With regard to paragraph 28, the City states that the October 18, 2008 letter 

speaks for itself The City lacks sufficient information to admit or deny the remaining 

allegations contained in this paragraph. 

29. With regard to paragraph 29, the City states that Skydive Ex. 29 speaks for itself 

30. With regard to paragraph 30, the City admits that it provided a proposed lease for 

an on-Airport drop zone to Skydive on December 19, 2009. As to the remaining allegations 

contained in this paragraph, denied. 

31. With regard to paragraph 31, denied. 

32. With regard to paragraph 32, the City admits that it was contacted by Durden in 

January of 2009 as counsel for Skydive regarding the terms of the proposed lease and that 

Durden requested a meeting with the City. The City lacks information sufficient to admit or 

deny the allegations that Skydive filed a Part 13 Complaint with the FAA ADO or that there has 

been no response from the FAA. The statement that a Part 13 Complaint is mooted by a Part 16 

Complaint is a conclusion of law as to which no response is required. As to the remaining 

allegations contained in this paragraph, denied. 

33. With regard to paragraph 33, the City lacks sufficient information to admit or 

deny the allegations contained in this paragraph. 

14 
34. With regard to paragraph 34, the City admits that Durden contacted the City and 

provided suggested revisions to the draft drop zone leases that had been provided by the City in 

December of 2008 and March of 2009. The City admits that it agreed to make revisions to each 

of the draft leases in response to Skydive's concerns. The City states that the revisions included 

a provision for loading skydivers onto aircraft adjacent to the drop zone. The City admits that 

after Durden threatened litigation against the City in January of 2009, Hayes became the primary 

contact for Durden with the City. The City admits that it did not meet with Durden in the spring 

of 2009. The City states that the emails between Durden and the City speak for themselves. As 

to the remaining allegations contained in this paragraph, denied. 

35. With regard to paragraph 35, the City admits that it offers a discount to largevolume purchasers of fiiel. This offer currently provides discounts for large-volume customers 

who buy more than 300 gallons of fiael in a single purchase from the Airport's jet fiiel truck. The 

City has never barred Skydive from participating in the program; Skydive has not qualified for 

any discounts because it has never bought the required minimum volumes of jet fuel in a single 

purchase. This fiiel discount program is primarily used by large private or charter business jet 

aircraft that buy fiiel at the Airport. 

The City admits that Skydive contracted for a Twin Otter airplane to carry its customers 

and that the pilot of that plane eventually moved his plane to another airport. The City admits 

that the ASOS for the Airport is a recorded radio broadcast of weather and safety information. 

The City admits that a notice regarding skydiving was contained in the ASOS, that it was 

removed briefly on a handful of occasions, and that on one occasion the City was reminded to 

replace the notice by a single pilot. The City admits that Durden informed Hayes that the notices 

were missing at one point and demanded that they be replaced and that Hayes informed the City 

15 
that this request had been made. As to the remaining allegations contained in this paragraph, 

denied. 

36. With regard to paragraph 36, the City admits that it sent Skydive a second 

proposed lease on March 9, 2009 {see Skydive Ex. 9). The City admits that it corresponded with 

Durden regarding this draft lease, but that it did not meet with him regarding the draft lease 

during the spring of 2009. As to the remaining allegations contained in this paragraph, denied. 

37. With regard to paragraph 37, the City admits that it tried to respond to the 

concerns raised by Skydive in the second draft of the lease. The City admits that Skydive 

proposed additional changes to the lease and proposed additional discussion about those changes 

between the parties. As to the remaining allegations contained in this paragraph, denied. 

38. With regard to paragraph 38, the City admits that is circulated a third draft drop 

zone Lease to Skydive on April 30, 2009 {see Skydive Ex. 19). The City states that it reasonably 

responded to concerns raised by Skydive in the third draft of the Lease. The City admits that the 

third draft Lease is the subject of Skydive's Complaint. As to the remaining allegations 

contained in this paragraph, denied. 

39. With regard to paragraph 39, the City admits that Durden contacted the City again 

after receipt of the third draft of the proposed Lease. The City admits that Skydive attended a 

City-sponsored Chamber of Commerce session with a number of on-Airport businesses at which 

feedback relating to business operations on the Airport was discussed. The City admits that no 

additional substantive conversations regarding the Lease took place between the City Manager 

and Skydive after that meeting. As to the remaining allegations contained in this paragraph, 

denied. 

16 
40. With regard to paragraph 40, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

41. With regard to paragraph 41, the City admits that it is a recipient of federal grants 

and that it provided written assurances of compliance with its obligations in connection with 

receipt of those grants. With regard to the remaining allegations contained in this paragraph, 

those allegations consist entirely of conclusions of law and, as such, no response is required. 

42. With regard to paragraph 42, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

43. With regard to paragraph 43, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

44. With regard to paragraph 44, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

45. With regard to paragraph 45, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

46. With regard to paragraph 46, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

47. With regard to paragraph 47, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

48. With regard to paragraph 48, the City admits that the Lease requires Skydive to 

obtain and maintain commercial general liability insurance for the leased-premises and for 

skydiving and aircraft operations in the amount of $1,000,000 per occurrence, and that aggregate 

limits are to be double the per occurrence limit. The Lease fiirther requires Skydive to obtain 

and maintain automobile liability insurance for licensed vehicles utilized on the leased premises 

17 
or on the Airport in the amount of $1,000,000 per occurrence for bodily injury and property 

damage. The Lease requires that the City of Lincoln and its officers, officials, employees, agents 

and volunteers be named as additional insureds for all injury, deaths and property damage arising 

out of performance of the Lease. The Leeise also requires Skydive to pay for any increase to City 

insurance premiums caused by the City acquiring insurance coverage for skydiving and 

parachuting operations on the Airport. The City ftirther admits the Lease requires that any 

independent skydiving subcontractor or other skydiving commercial operator may use the leased 

premises only upon providing a Certificate of Insurance to the City that satisfies these insurance 

requirements. 

Further answering, the City states that Skydive has previously provided the City with 

Certificates of Insurance indicating that Skydive has the following insurance: Airport Premises 

Liability Insurance in the amount of $1,000,000 per occurrence, $2,000,000 aggregate, with the 

City listed as an additional insured; Aircraft Liability Coverage in the amount of $300,000 per 

occurrence; Membership Jump Coverage at the drop zone in the amount of $50,000 per 

occurrence, $1,000,000 aggregate, with the City listed as an additional insured. 

The City admits that the proposed Lease terms regarding insurance should have included 

provision for aviation general liability insurance as opposed to commercial general liability 

insurance. The City agrees that the insurance that Skydive already has satisfies some of the 

necessary insurance requirements, but the City would require the following additional insurance 

coverage before entering into the Lease: Aircraft Liability Coverage should be increased to 

$ 1,000,000 per occurrence, $2,000,000 aggregate, and should be expanded to include coverage 

for bodily injury, property damage, and any damage to or caused by passengers, and the City 

should be listed as an additional insured; and Automobile Liability Insurance should be acquired 

18 
for licensed vehicles utilized on the leased premises or on the Airport in the amount of 

$ 1,000,000 per occurrence for bodily injury and property damage. The City requires this 

additional insurance coverage because it is mandated by City Ordinances or it is required by the 

City's own insurance provider as a condition of acquiring a City insurance policy that includes 

coverage for skydiving activities at the Airport {see LMC 20.04.050, City Ex. 3; City 

Exs. 10, 13). 

The existing City Airport Policy (provided by Old Republic Insurance) excludes Airport 

Parachuting. The only policy that the City has been able to locate that would provide the City 

with Skydiving coverage would be from AIG. The AIG policy excludes Airport Parachuting; 

however, the policy amends the exclusion on the condition that valid and collectible insurance is 

available to the named insured (the City). The AIG policy will only take effect in excess of valid 

and collectible insurance. With regard to all but the automobile liability insurance, AIG will 

require Skydive to carry $ 1,000,000 in coverage to meet the "valid and collectible insurance" 

requirement {see City Exs. 10, 13). 

The City states that, to the extent that Skydive can conclusively demonstrate to the City 

that it cannot obtain the required automobile liability insurance, the City is willing to discuss 

other levels of automobile liability insurance coverage. However, the City notes that Garcia has 

already previously provided to the City a letter indicating that he is insurable for $ 1,000,000 in 

automobile coverage {see City Ex. 14). As to the remaining allegations contained in this 

paragraph, denied. 

49. With regard to paragraph 49, the City lacks information sufficient to admit or 

deny the allegations. 

19 
50. With regard to paragraph 50, the City admits that it is aware of Skydive's 

contention that it cannot acquire commercial general liability insurance covering skydiving. The 

City states that Skydive's own proposed draft lease agreement, submitted to the City in March of 

2009, retained a "commercial general liability insurance" provision, if such insurance is available 

{see City Ex. 8). As to any remaining factual allegations contained in this paragraph, denied. 

51. With regard to paragraph 51, this paragraph consists entirely of conclusions of 

law, and as such, no response is required. 

52. With regard to paragraph 52, this paragraph consists entirely of conclusions of 

law, and as such, no response is required. 

53. With regard to paragraph 53, denied. 

54. With regard to paragraph 54, the City lacks information sufficient to admit or 

deny the allegations. 

55. With regard to paragraph 55, the City admits that the Lease requires that any 

independent subcontractor or other skydiving commercial operator may use the leased premises 

only upon providing a Certificate of Insurance to the City that satisfies the insurance 

requirements contained in the Lease. This is consistent with the requirements imposed upon the 

City by AIG to obtain insurance for skydiving activities at the Airport and with applicable City 

Ordinances {see LMC 20.04.050(c), City Ex. 4; City Ex. 14). The City would require any 

subcontractor engaged in skydiving activities to have the same coverage as Skydive. This would 

include, for example, subcontractors engaged in operating airplanes and repacking parachutes. 

These types of subcontractors are part of the parachuting/skydiving activities undertaken by 

Skydive, pose the same risks as Skydive, and therefore require the same levels of insurance. The 

City lacks information sufficient to admit or deny the allegation that Skydive contracts with 

20 
persons to repack parachutes and with aircraft operators to provide skydiving aircraft as needed, 

or the allegation that commercial general skydiving liability insurance is not available. To the 

extent that this paragraph contains additional factual allegations that have not been specifically 

admitted, denied. To the extent that this paragraph consists of conclusions of law, no response is 

required. 

56. With regard to paragraph 56, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

57. With regard to paragraph 57, the City admits that the Lease requires Skydive to 

obtain and maintain automobile liability insurance for licensed vehicles utilized on the leased 

premises or on the Airport in the amount of $ 1,000,000 per occurrence for bodily injury and 

property damage. The City lacks information sufficient to admit or deny whether Skydive has 

been able to find such coverage, but notes that Garcia has previously provided a letter to the City 

which states that he is insurable for $1,000,000 in auto coverage (City Ex. 14). The City states 

that, to the extent that Skydive can conclusively demonstrate to the City that it cannot obtain the 

required automobile liability insurance, the City is willing to accept lower limits of coverage. To 

the extent this paragraph contains additional factual allegations that have not been specifically 

admitted, denied. To the extent that this paragraph consists of conclusions of law, no response is 

required. 

58. With regard to paragraph 58, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

59. With regard to paragraph 59, to the extent that this paragraph consists of 

conclusions of law, no response is required. As to the remaining allegations contained in this 

paragraph, denied. 

21 
60. With regard to paragraph 60, the City admits that it has not provided Skydive with 

a copy of all of its commercial Airport leases, but states that it has not received any request for 

these documents from Skydive. As to the remaining allegations contained in this paragraph, they 

consist entirely of conclusions of law and, as such, no response is required. 

61. With regard to paragraph 61, the City admits that the Lease requires Skydive to 

reimburse the City for any costs incurred by the City as the result of obtaining insurance 

coverage for Skydive's activities at the Airport. Consistent with past policies, the City's current 

Airport policy (for 2009-2010) excludes Airport Parachuting risks and offers no skydiver bodily 

injury or property damage coverage. The City's 2008-2009 policy had the same exclusion. The 

City's current insurance provider. Old Republic/Phoenix Aviation, does not provide Airport 

Parachuting or Skydiving Insurance. Following a search by two brokers, one broker located an 

insurance company that would provide the coverage, AIG. In order to obtain this coverage, 

however, the City, would need to cancel the existing Airport policy and purchase a new Airport 

policy from AIG. AIG's policy would include parachuting coverage; however, that policy would 

cost the City an additional $7,000 - $8,000 annually. The City denies that the Lease contains 

conditions that are not applied to any other similarly-situated Airport lessee. The Energy 

Absorptions Lease contains the same provision requiring the tenant to reimburse the City for any 

additional insurance costs incurred by the City as the result of the tenant's on-Airport activities. 

There is no other tenant at the Airport whose activities have caused the City to incur additional 

insurance costs as the result of their on-Airport activities. With regard to the remaining 

allegations contained in this paragraph, those allegations consist entirely of conclusions of law 

and, as such, no response is required. 

22 
62. With regard to paragraph 62, the City states that it requires that a variety of 

different insurance coverage be obtained by its tenants. The insurance requirements contained in 

each lease reflect differences in the length of lease terms and nature of tenant activities, and 

reflect input from the City's own insurance providers. The City states that all of its currentlyactive ground leases for Airport property contain insurance provisions reasonably designed to 

shield the City from insurable risks. The City states that, for example, the Energy Absorptions 

Lease specifically requires the tenant to reimburse the City for any increase in the City's 

insurance costs attributable to that tenant's activities, but that, to date, no additional insurance 

costs have been incurred by the City as the result of Energy Absorptions on-Airport activities. In 

fact, the City has not incurred any increase in insurance costs as the result of any on-Airport 

activity by any other ground lessee. To the extent the allegations contained in this paragraph 

have not been specifically admitted, denied. 

63. With regard to paragraph 63, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

64. With regard to paragraph 64, denied. 

65. With regard to paragraph 65, to the extent that this paragraph consists of 

conclusions of law, no response is required. As to the remaining allegations contained in this 

paragraph, denied. 

66. With regard to paragraph 66, to the extent that this paragraph consists of 

conclusions of law, no response is required. As to the remaining allegations contained in this 

paragraph, denied. 

67. With regard to paragraph 67, the City admits that the Rent section of the Lease 

provides for an annual 5% increase in rent. The City admits that no other lease with an 

23 
aeronautical tenant calls for a 5% annual rental rate increase. The City states that the only 

existing lease with a comparable term (the lease with DeSilva) also calls for a 5% annual rental 

rate increase. To the extent the remaining allegations contained in this paragraph consist of 

conclusions of law, no response is required. As to the remaining allegations contained in this 

paragraph, denied. 

68. With regard to paragraph 68, the City admits that the Lease contains a proposed 

two year lease term. The City denies that this is inconsistent with the leases provided to £iny 

similarly-situated commercial aeronautical users on the airport. The City states that longer lease 

terms have been granted to tenants that make substantial capital investments for the construction 

of improvements on leased Airport property. The City states that the Skydive lease does not 

contain any provision for improvements to the drop zone site and in fact prohibits the 

construction of any building or improvement. To the extent that this paragraph contains 

conclusions of law, no response is required. As to the remaining allegations contained in this 

paragraph, denied. 

69. With regard to paragraph 69, the City admits that the Lease requires Skydive to 

comply with FAA findings regarding safety procedures necessary for operating a drop zone on 

the Airport and to comply with the terms of the Letter of Agreement between Skydive and 

TRACON {see Skydive Exs. 3,4, 19). The City fiirther admits that the Lease requires Skydive 

to comply with all requirements of law. To the extent that this paragraph contains conclusions of 

law, no response is required. As to the remaining allegations contained in this paragraph, denied. 

70. With regard to paragraph 70, the City admits that the Lease, and other Airport 

leases, require that the tenant comply with all applicable requirements of law. To the extent that 

24 
this paragraph consists of conclusions of law, denied. As to the remaining allegations contained 

in this paragraph, denied. 

71. With regard to paragraph 71, the City states that it would, of course, expect 

Skydive to comply with the guidelines set out by the Sacramento FSDO and TRACON, as they 

may be amended from time to time. It was never the City's intention to create conflicting lease 

terms. As to any additional factual allegations contained in this paragraph, denied. 

72. With regard to paragraph 72, this paragraph consists entirely of conclusions of 

law and, as such, no response is required. 

73. With regard to paragraph 73, admitted. 

74. With regard to paragraph 74, the City admits that the Lease only permits Skydive 

to use the leased premises for the purposes of a landing drop zone for skydivers. The City 

admits that land constituting the leased premises could be devoted to other uses, including hot air 

ballooning and helicopter hover pads. However, the City states that these other airport uses are 

already safely taking place elsewhere in the Airport. The City admits that not all airplanes using 

the Airport have radios. The City admits that airplanes, helicopters and hot air balloons have 

safely mixed on and used the airport in the past. The City states that use of the Airport by 

skydivers in the past has been extremely limited, and the City is unaware of any accidents. To 

the extent that this paragraph contains conclusions of law, no response is required. As to the 

remaining allegations contained in this paragraph, denied. 

75. With regard to paragraph 75, the City admits that it does not limit its other leases 

to sole aeronautical activities or to sole types of aircraft. To the extent that this paragraph 

consists of conclusions of law, no response is required. As to the remaining allegations 

contained in this paragraph, denied. 

25 
76. With regard to paragraph 76, the City admits that the Lease does not permit the 

erection of any building or structure on the leased premises. The City admits that it has 

permitted DeSilva, a non-aeronautical tenant, to place temporary construction offices in trailers 

on the west side of the Airport in connection with the construction of the Lincoln State Highway 

65 Bypass project. The City admits that part of the west side of the Airport is used to store 

debris. City vehicles and new City trash receptacles. The City admits that, on the east side of the 

Airport, some tenants have been permitted to build or lease buildings on the Airport that were 

not built by the Airport. The City states that Skydive currently leases hangar space on the east 

side of the Airport and houses its offices in that hangar. 

The City understands that Skydive seeks to erect a building near the drop zone in which 

to house an office and repack parachutes. The City admits that the erection of such a building is 

not permitted by the Lease. The City states that the drop zone is located on a part of the Airport 

that has no connection to utilities. There is no water or sewer connection, and there is no onAirport electrical connection. The City states that the proposed drop zone is also in a portion of 

the Airport that contains a variety of wetiands and vernal pools, which makes placement of any 

structure more difficult. The City has reasonably determined that it would be nearly impossible 

to build a structure, whether temporary or permanent, on this portion of the Airport unless that 

structure were built without water service, without sewer service, and without any fire 

suppression systems. Skydive proposes to erect such a structure and to allow the public to have 

access to that structure for the purpose of Skydive's business operations. The City has 

reasonably determined that such a structure, intended for use by the public, does not meet 

minimum health, sanitation and safety requirements and therefore cannot be constructed on the 

west side of the Airport. 

26 
The City notes that the only other structures on the west side of the airport are the 

temporary offices in trailers used by DeSilva and some dilapidated WWII-vintage barracks that 

are unoccupied. The only utility connected to those trailers is electricity, taken from a nearby 

electric pole. The DeSilva trailers are not open to the public, do not provide services to the 

public, and are used only as temporary construction offices by private employees. The City 

states that all aeronautical activities are currently conducted on the east side of the airport and 

that there is room on the east side of the airport for Skydive to lease or construct additional 

building space. With regard to the exhibits that are cited in this paragraph, they speak for 

themselves. To the extent that this paragraph consists of conclusions of law, no response is 

required. As to the remaining allegations contained in this paragraph, denied. 

77. With regard to paragraph 77, to the extent that this paragraph consists of 

conclusions of law, no response is required. With regard to the remaining allegations contained 

in this paragraph, denied. 

78. With regard to paragraph 78, to the extent that this paragraph consists of 

conclusions of law, no response is required. With regard to the remaining allegations contained 

in this paragraph, denied. 

79. With regard to paragraph 79, the City admits that the Lease requires Skydive to 

indemnify the City for damages caused by actions of Skydive; however the Lease also states that 

such indemnity shall not be applicable to injury, death or damage to property arising from the 

sole or active negligence or willful misconduct of the City or its officers, agents or servants. 

The City admits that that the Lease does not provide for indemnification of Skydive for the 

actions by the City. The City notes that this indemnification language is consistent with City 

Ordinances {see LMC 20.04.040, City Ex. 3). To the extent that this paragraph consists of 

27 
conclusions of law, no response is required. As to the remaining allegations contained in this 

paragraph, denied. 

80. With regard to paragraph 80, the City admits that the Lease requires Skydive to 

indemnify the City for any environmental harm caused by Skydive. The City admits that the 

Lease does not provide for indemnification of Skydive for environmental harm caused by the 

City. To the extent that this paragraph consists of conclusions of law, no response is required. 

As to the remaining allegations contained in this paragraph, denied. 

81. With regard to paragraph 81, the City admits that the Lease states that time is of 

the essence for the performance of Skydive's obligations under the Lease. To the extent that this 

paragraph consists of conclusions of law, no response is required. As to the remaining 

allegations contained in this paragraph, denied. 

82. With regard to paragraph 82, the City denies that the Airport manager made any 

threats against the pilot of a Twin Otter that was under contract to Skydive or that the City 

caused the pilot to stop using the Airport. The City lacks information sufficient to admit or deny 

the remaining allegations. 

83. With regard to paragraph 83, the City admits that since receiving Durden's 

January 2009 letter threatening litigation against the City, the City's primary contact with 

Skydive has been Hayes. The City admits that it offers a discount to purchasers of more than 

300 gallons of fiiel in a single purchase when made from the Airport's jet fuel truck, but denies 

that Skydive has ever qualified for such a discount. As to the remaining allegations contained in 

this paragraph, denied. 

84. With regard to paragraph 84, the City admits that Skydive is among the largest 

purchasers of fiiel based at the Airport. The largest purchasers of fiiel from the Airport are. 

28 
however, not based at the Airport. The City admits that purchasers of fuel pay federal taxes on 

their purchases. The City admits that it makes a profit on its fuel sales at the Airport, but states 

that any revenues generated by its fijel sales are used only for airport purposes. To the extent 

that this paragraph consists of conclusions of law, no response is required. As to the remaining 

allegations contained in this paragraph, denied. 

85. With regard to paragraph 85, denied. 

86. With regard to paragraph 86, the City admits that this has been a difficult 

financial time and that both parties will incur costs as a result of Skydive's Complaint. To the 

extent that this paragraph consists of conclusions of law, no response is required. As to the 

remaining allegations contained in this paragraph, denied. 

87. With regard to paragraph 87, this paragraph consists entirely of a prayer for relief 

and, as such, no response is required. 

88. With regard to paragraph 88, this paragraph consists entirely of a prayer for relief 

and, as such, no response is required. 

89. With regard to paragraph 89, this paragraph consists entirely of a prayer for relief 

and, as such, no response is required. 

City's Statement of Additional Facts in Support of Answer 

AFl. Skydive and the City have been engaged in negotiating a lease agreement for a 

"drop zone" to be located on the Airport. Skydive would use the drop zone as a skydiving and 

parachuting landing area. 

AF2. Skydive attempts to portray the City as unwilling to negotiate the lease terms. 

This is not the case. The City twice revised the draft lease in response to Skydive's requests. The 

City does, however, object to certain requests Skydive has made and is unwilling to accede to 

29 
some of Skydive's demands. The City believes that it has reasonably exercised its proprietary 

rights in dealing with Skydive. 

AF3. The City currently has ground leases with eleven tenants at the Airport {see City 

Exs. 15-25). All of these tenants are either (a) long-term aeronautical tenants that have made 

significant capital investments in the Airport or (b) short-term non-aeronautical tenants engaged 

in activities that are not open to the public. 

AF4. The City's nine aeronautical tenants at the Airport all have long-term ground 

leases that anticipate tenant-financed construction of hangars, aircraft manufacture and repair 

facilities or other permanent improvements at the Airport: Mike Devlin (2001, 30-year lease for 

construction and use of hangars) (City Ex. 15); Crosswind Properties LLC (2001, 30-year lease 

for construction and use of hangars) (City Ex. 16); Mark and Nancy Machado, d/b/a Velocity 

West (1998, 35-year lease for construction and use of industrial building for manufacture and 

maintenance of small aircraft) (City Ex. 17); Group Financial, Inc. (1997, 40-year lease for 

construction and use of hangars) (City Ex. 18); Nunno Corporation, Ltd. (1986, 20-year lease for 

the construction and management of hangars and office space, extended for 10 years upon 

expiration) (City Ex. 19); Gene Cantrell and American River Development, Inc. (1984, 50-year 

lease for construction of an FBO facility for lease to aircraft-related businesses) (City Ex. 20); 

Cemo Development Company (1983, 50-year lease for construction of an FBO facility for lease 

to aircraft-related businesses) (City Ex. 21); Thomas Camillucci, Greg Sanoski ("Lincoln 

Skyways") and Robert M. Coon, Edwin F. Krass ("Kracon Aircraft") (assignees of amended 

1978, 40-year lease for construction and use of hangars and office space) (City Ex. 22); and 

Placer Hangar Co. (1978, 40-year lease for construction and use of hangars) (City Ex. 23). 

30 
AF5. The City also has two non-aeronautical tenants with short-term ground leases at 

the Airport: DeSilva Gates FCI ("DeSilva") (2008, one-year lease for temporary construction 

management offices for highway project) (this lease has been renewed for one year) (City 

Ex. 24); and Energy Absorptions Incorporated ("Energy Absorptions") (2006, two-year lease for 

conducting crash tests using automobiles and highway barriers no more than six times per year) 

(this lease has been renewed twice for additional one-year terms) (City Ex. 25). 

AF6. This dispute is over the terms of a Lease for a drop zone to be located on the west 

side of the Airport. The west side of the Airport consists almost entirely of open space that is 

located outside the security fence and is designated as a non-aviation area on the approved ALP 

{see City Ex. 12). 

AF7. The FAA and the City have approved the drop zone that is proposed by Skydive. 

The FAA and the City have determined that skydiving can safely take place on the west side of 

the Airport at the proposed drop zone, subject to certain conditions outlined by the FAA in its 

November 21, 2008 letter {see Skydive Ex. 3). 

AF8. Skydive is in the business of providing skydiving instruction and services to 

skydivers. Skydive has sub-leased hangar and office space on the east side of the Airport since 

2008. Skydive has a Business License from the City to operate at the Airport, has made 

promotional skydives on the east side of the Airport, with special accommodations by the 

Airport for safety and has generally been operating as a parachuting and skydiving business for 

some time on the east side of the Airport, with off-Airport drop zones. 

AF9. Skydive seeks to move its drop zone to an on-Airport location on the west side of 

the Airport and has requested a lease from the Airport for such a drop zone. It now complains 

about a number of the specific terms contained in the City's proposed Lease. 

31 
AFIO. Skydive complains that the drop zone site would also be suitable for use as a 

helicopter hover pad and for the launching and landing of hot air balloons and protests that these 

would not be permitted uses of its drop zone. 

AFl 1. The City, in the exercise of its proprietary rights, has determined that helicopter 

and hot air balloon activities should continue to take place only on the east side of the Airport, as 

they currently do; the City is opposed to creating new space for hot air balloon or helicopter 

activities on the west side of the Airport. No aeronautical activity currentiy takes place on the 

west side, where there is no improved aeronautical infrastructure and no aeronautical facilities or 

services. 

AFl 2. The east side of the Airport is the center of all aeronautical operations on the 

Airport. In the last year, 32 new hangars have been built by the City on the east side of the 

Airport, and the east side of the Airport already contains a helipad, an approved helicopter flight 

pattern, a helicopter repair shop and general accommodations and services for helicopters. Hot 

air balloon usage also takes place on the east side of the Airport from time to time. Helicopters 

(regularly) and hot air balloons (occasionally) have been operating on the east side of the Airport 

safely and comfortably for a number of years, and no fee is charged by the City for helicopter 

and hot air balloon take-offs and landings. There is no good reason to move these operations to 

the west side of the Airport or to create duplicate operating areas for these aeronautical activities 

outside the security fence where there is no hangar space, no aviation services, no aeronautical 

buildings or utilities, and where vehicle access roads are old and poorly maintained. The drop 

zone itself, which will be simply a level space for parachute landing, is not necessary for 

helicopter and hot air balloon use, as these aeronautical uses are already accommodated within 

the existing improved airfield facilities on the east side of the Airport. 

32 
AFl 3. Skydive has been operating only as a skydive and parachuting business and is not 

to the City's knowledge in the business of conducting helicopter or hot air balloon operations. 

AFl4. Skydive also complains that the Lease prohibits Skydive from placing, 

constructing or building any structure on the leased premises. 

AFl 5. There is no reason why a building is required on the west side of the Airport in 

order for Skydive to engage in its skydiving activities. There is ample space on the east side of 

the Airport to accommodate Skydive's needs, and Skydive already sub-leases hangar space on 

the east side of the Airport. 

AFl 6. The only structures that currently exist on the west side of the Airport (other than 

three unoccupied, dilapidated WWII-vintage barracks) are the temporary trailers used by DeSilva 

{see City Ex. 26 [photograph of DeSilva trailers]). The City has permitted DeSilva, a nonaeronautical tenant, to place its temporary construction offices on the west side of the Airport in 

connection with the construction of the nearby Lincoln State Highway 65 Bj^ass project. As 

soon as the highway construction is completed, those temporary structures will be removed. The 

only utility that runs to those structures is an electric line strung straight from an electric pole. 

Only employees working on the construction project have access to DeSilva's offices; they are 

not open to the public. 

AFl 7. In addition to these temporary structures, the west side of the Airport is also used 

for some other non-aeronautical purposes that do not require structures. The City stores minor 

debris, some City vehicles and new City trash receptacles on the west side of the Airport. The 

City also permits one of its tenants to perform crash tests involving automobiles and highway 

barriers on an abandoned portion of old runway on the west side of the Airport. There are no 

other activities currently taking place on the west side of the Airport. 

33 
AFl 8. The City opposes the placement of any permanent structure open to the public on 

the west side of the Airport because there are no accessible utility connections on that side of the 

Airport. The nearest water and sewer connections to the drop zone are approximately 3,000 feet 

from the drop zone site, and any electrical connection would have to be run from electric power 

lines running along a nearby road. Additional construction difficulties would be caused by the 

many wetlands and vernal pools that exist in this area. 

AFl 9. The City will not agree to the construction of a structure, to be open to the public, 

which does not meet basic safety and sanitation standards. The City would require any open-tothe-public building on the west side of the Airport to have, at a minimum, hot and cold running 

potable water, restroom facilities, and a fire suppression system {see LMC 13.04.499, 13.04.450 

City Ex. 27; Lincoln Ordinance 314B, as amended by Lincoln Ordinance 322B, City Ex. 28; 

California Fire Code Sections CI01-CI05, regarding fire hydrants. City Ex. 29)60. It would be 

difficult and expensive for these services to be provided to any structure, temporary or 

permanent, at the drop zone. The City therefore will agree only to Skydive's use of structures on 

the east side of the Airport for its office and parachute repacking facilities. 

AF20. From an airport management perspective, the City also seeks to retain as much 

aeronautical activity as possible inside the security fence and on the east side of the Airport. The 

City's current airport development program is focused on the east side of the Airport. There is 

ample building space available to Skydive on the east side of the Airport and there is no need to 

build a structure on the west side {see City Ex. 12). A chart depicting the site of the proposed 

drop zone in relation to the Airport boundary and security fence as well as in relation to 

Skydive's existing h anger space is reproduced as City Ex. 30. 

34 
FIRST AFFIRMATIVE DEFENSE 

The Complaint does not establish a reasonable basis for further investigation by the FAA. 

SECOND AFFIRMATIVE DEFENSE 

The Complaint does not contain sufficient evidence to meet Skydive's burden of proof to 

establish that the City has violated Grant Assurance 22. 

THIRD AFFIRMATIVE DEFENSE 

The Complaint does not contain sufficient evidence to meet Skydive's burden of proof to 

establish that the City has violated Assurance 23 or 49 U.S.C. § 40103(e) by granting any 

prohibited exclusive rights. 

FOURTH AFFIRMATIVE DEFENSE 

The Complaint does not contain sufficient evidence to meet Skydive's burden of proof to 

establish that the City has imposed an unlawfiil unattainable condition 

FIFTH AFFIRMATIVE DEFENSE 

The City's has lawfiilly exercised its proprietary rights as owner and operator of the 

Airport. 

By its^^ttcHineys, 

ffin 

ANDERSO^^&XREIGE R LLP 

One Canal Park, Suite 200 

Cambridge, MA 02141 

T: 617.621.6500 

F: 617.621.6660 

slewis@andersonkreiger.com 

cgriffin@andersonkreiger.com 

Counsel for Respondent 

35 
CERTIFICATE OF SERVICE 

I hereby certify in accordance with 14 CFR § 16.15(a) that today I served the foregoing 

Respondent's Answer and the accompanying volume of Supporting Evidentiary Material on the 

following persons at the following addresses by Federal Express: 

Richard J. Durden 

Attorney at Law 

27987 Richmond Hill Road 

Conifer, CO 80433 

Office of Chief Counsel, Attention: 

FAA Part 16 Airport Proceedings Docket 

AGC-610 

FEDERAL AVIATION ADMINISTRATION 

800 Independence Avenue, SW 

Washington, DC 20591 

Dated thi&^" iay of Sentember, 2009 

36 
SKYDIVE SACRAMENTO 

Coniplainanf, 

vs. 

THE CITY OF LINCOLN, CALIFORNIA 

Respondent 

Richard J. Durden P29114 

Attoraey at Law 

27987 Richmond Hill Rd. 

Conifer, Co. 80433 

616/901-6516 

Attor-iey for Complainant 

14 CFR § 16 COMPLAINT 

I. Entities/Persons That Are the Subject of the Complaint 

0 J Skydive Sacramento is the name under which 80896, L.L.C, a Cahfornia L.L.C. operates 

(Exhibit 1). Its address is 2896 Fox Den Circle, Lincoln, California, 95648. It is a commercial 

aeronautical user of the Lincoln, California Regional Airport (Airport). As represented by 

counsel, it makes the following Complaint for violations of 49 USC §§ 47107,40103(e) and 

Grant Assurance 22, failure to comply with grant obligations and Federal Aviation 

Administration Otders and Advisory Circulars prohibiting establishment of exclusive rights at an 

airport, unjust discrimination against a commercial aeronautical activity seeking airport access 

and the establishment of unattainable and discriminatory standards for a commercial aeronautical 

activity seeking airport access, against the City of Lincoln, California (City) as the owner and 

sponsor of the Lincoln, California Regional Airport (Airport), as will be more fully set out 

below. The City of Lincoln, California, through its City Attorney, Timothy Hayes, may be 

reached at 422 Century Park Drive, Suite A, Yuba City, California, 95991 and through its City 
Manager, .lim Estep, 600 Sixth Street, Lincoln, California, 95648. The violations, upon 

information and belief are due lo the actions of air^xirt manager, David Daly and others, 

unknown lo Complainant, employed by the City of Lincoln, California. 

H. 14 CFR §16.21 Certification 

|*j1 In September 2007, Skydive Sacramento applied for permission to land its customer 

skydivers on a proposed drop zone on the Lincoln Regional Airport (Airport) and to erect a 

building adjacent to the drop zone from which to run its business and repack parachutes (Exhibit 

1). The City of Lincoln denied Complainant's application for a drop zone on the Airport citing 

safety issues. Complainant objected to the City's denial and filed a 14 CFR Part 13 notice of 

violation with the FAA regarding the City's denial of access of an aeronautical user to an airport 

that was in receipt of federal grant money (Exhibit 2). The FAA has, to this date, not responded 

to the Pari 13 complaint and it is now mooted by this Complaint. 

Xi\ The City sought a safety review from the FAA ADO, which directed the Sacramento 

FSDO to conduct the review. The FAA conducted its safety review over a number of months, 

completing it in November 2008. The FAA specifically found that a drop zone could be 

operated safely on the airport (Exhibit 3). 

[ j 7 Complainant also contacted the Northern California Radar Approach (TRACON) to 

discuss safe skydiving operations and received a Letter of Agreement on October 18,2008 from 

the TRACON for its skydiving operations at Lincoln Airport (Exhibit 4). 

j^T Following the safety finding by the FAA, Complainant sought to negotiate an agreement 

for drop zone access and erecting a building with the City. The City refused to negotiate and on 

December 20.2008 unilaterally issued a drop zone lease (Exhibit 5), which was not acceptable to 

Complainant due to the size of the drop zone and provisions that appeared to violate the City's 
FAA grant obligations. Complainanl, through counsel, objected lo the lease and sought lo meet 

with the City to negotiate an acceptable lease (Exhibit 6). The City refused. 

^ 3 ^^^^ -'anuary 16, 2009 Complainanl again sought help from the TAA ADO for the actions 

of the City of Lincoln and its airport manager in keeping it off of Ihe Airport (Exhibit 2). 

jjlT The i'AA never responded. 

1^^ On February 9, 2009, the City, through its attorney, advised Complainant's counsel that 

the City was reworking the lease. Complainant's counsel requested a meeting to negotiate lease 

terms "rather than have Mr. Daly (airport manager) issue another lease/agreement that may 

require further negotiation and delay" (Exhibit 6). 

[ff] rhe City never agreed to a meeting. 

^1<Q On March 2, 2009, Complainant's counsel asked whether the revised lease was 

forthcoming and was told it would be out shortly (Exhibit 8). This second drop zone lease 

(Exhibit 9) was received about two weeks later. It was sent on to the FAA ADO by Complainant 

on March 10, 2009, pointing out that it did not comply with the City's grant obligations. 

tjl j The FAA ADO did not respond. 

Q2J On March 18, 2009, Complainant's counsel contacted counsel for the City to outline 

suggested changes to the revised drop zone lease and to transmit suggested alternative 

agreements (Exhibit 10). 

Q^'y On March 23, 24, 25, April 2, 13 and 21 Complainant's counsel contacted counsel for the 

City to request a meeting to discuss drop zone lease tenns (Exhibits 11 through 18). 

h H l The City would not agree to meet. 

Qs"! The airport manager had not returned telephone calls from Complainant's president since 

approximately the first of January 2009 (Exhibit 1). 
^ p l On April 30, 2009 a third drop zone lease (the Lease) was issued by the Cily, again 

without any negotiation (Exhibit 19). Counsel for Complainant contacted counsel for the City 

the next day with concerns about the Lease and was told that the City would not negotiate. 

Counsel for Complainant asked that the attorney for the City confirm that the Cily would not 

retaliate against Complainanl should Complainant file a Part 16 Complaint (Exhibit 20). There 

has been no response lo that request. 

C-JI As the FAA ADO has been unwilling to even respond to requests for help on the 

discriminatory portions of the lease, the FAA ADO has not responded to Complainant's Part 13 

complaint (now mooted by this Complaint) and the City has refused to negotiate lease terms. 

Complainant has made substantial and reasonable good faith efforts to resolve this matter and 

has exhausted its remedies for the City's actions keeping it from aeronautical activity on the 

Airport. There does not appear lo be any reasonable prospect for timely resolution of the dispute 

and thus Complainant's sole option for relief now consists of filing a Part 16 Complaint. 

III. Factual Background 

rW7 Skydive Sacramento is in the business of providing skydiving instruction and services for 

skydivers. It has rented hangar and office space on the Lincoln Regional Airport as a part of its 

commercial operation since 2007 (Exhibit 1), however, due to the issues to be addressed in this 

Complaint it has had to lease land off of the Airport premises for a drop zone rather than being 

allowed to conduct that aeronautical activity on the Airport. 

^^Hl The City of Lincoln, California is the sponsor of the Lincoln Regional Airport, a 

moderate sized, nontowered airport. It does not have scheduled airline service. It currentiy 

occupies about 775 acres, but has only one runway (Exhibit 21, airport web page, Exhibit 22 
aerial photo and Exhibit 23 airport diagram/map), ll was built for the U.S. Army Air Force 

during World War II. Two of its original three runways are now closed. In 2007, the most 

recent year for which data is shown on the Airporl website (Exhibit 21); it claimed about 81,000 

aircraft operations. While the current recession has had a devastating effect on general aviation 

and overall operations, the airport has not published its operational numbers for 2008 or 2009 lo 

date on its website .so it is not known by how much operations have dropped, although an 

estimate has operations at fewer than 100 per day (Exhibit 1). Prior to 2007, growth in usage of 

the Airport was slow; the FAA data for 1993 showed 71,000 annual operations 

(http:/'.\vvvw.gcri.com.'.i010web/atrport.cfin?Sile"lJliVll. 

[261 It should be noted that the term "drop zone" may have two meanings in common usage: 

it can mean the specific area on which skydivers land and it can mean a skydiving establishment. 

In 14 CFR Part 105.3 it is defined, in part, as "any pre-determined area upon which parachutists 

or objects land after making an intentional parachute jump or drop". In the United States 

Parachute Association Skydiver's Information Manual a drop zone is defined as a "skydiving 

establishment or intended parachute landing area". For ihe purpose of this Complaint the Ixase 

offered by the City is for a parachute landing area only; however, the City's refusal to allow 

Complainant to set up a skydiving establishment, with a building, adjacent to the parachute 

landing area is a part of the issues. Thus, herein "drop zone" will usually mean the parachute 

landing area but may, on occasion, refer to the skydiving establishment; however, the meaning 

should be obvious from context. 

VlS} Complainant's business has been reasonably good through the recession. Complainant is, 

from what limited data is available, the largest single purchaser of fuel on the airport (Exhibit 1) 
[j^'-J As may be .seen from an aerial photograph of the Airport, there is significant open space 

lo the west of the runway (Exhibit 22). This is largely on and near the two closed runways. Part 

of the area is currently being used for dumping trash and debris, such as torn up pavement, by the 

City. Some space has been rented to nonaviation businesses which have erected temporary 

buildings on leased land on the Airport. Exhibit 24 shows the buildings and operation of one 

business on the west side of the airport, west of the security fence; exhibit 25 shows some of the 

material dumped on one of the abandoned runways on the west side of the airport, west of the 

security fence. 

(."^Zj In September 2007, when Complainant sought to open its business, its president, Pat 

Garcia, made a formal request, in a sixty-page document (not reproduced here due to size), to use 

some of the open land on west side of the Airport, west of the security fence, as a drop zone and 

lo erect a building to operate the business and repack parachutes (Exhibit 1). In exhibit 26 

buildings can be seen on the west side of the airport. They belong to the nonaviation businesses 

on the west side of the airport and were not present when Mr. Garcia made his application. (The 

nonaviation businesses made application for land after Complainant and were immediately 

granted leases.) They are near the location Mr. Garcia requested to place his company's 

building. The requested drop zone was to be on the grassland north of the abandoned runways 

and west of the security fence (Exhibit 1). The drop zone land involved was not improved (and 

is not) and was being used from time to time for hover practice by helicopters and sometimes as 

a launching site for hot air balloons. (The site of the drop zone as outiined in the Lease, exhibit 

19, is not at issue. Both Complainant and the Airport agree as to the location and dimension of 

the drop zone. It is essentially in the location Complainant originally requested. The City has 
never agreed to allow Complainant to erect a building in conjunction with the drop zone 

although it has approved buildings for the nonaviation businesses on the v/esl side of the airport.) 

r^fl There is a gate in the security fence adjacent to the proposed drop zone, making it ea.sy 

for a jump airplane to taxi up to the security gate so skydivers can walk from the drop zone, 

through the security gate and board Ihe airplane. The security gale is well clear of all safety 

zones surrounding the runway and the airport has used that area to park airplanes in the past, so 

there is no safety issue. Exhibits 26 and 27 show an airplane parked by the security gate in 

January of this year. Loading a jump airplane at the security gate keeps skydivers away from all 

other aircraft around the hangars and on the ramps on the east side of the airport, makes certain 

there is no reason for a person to be walking across the runway and taxiways and keeps jumpers 

on the west side of the security fence until time to load the airplane. There is vehicle access to 

the proposed building and drop zone site from the road running along the west side of the airport; 

the vehicle access is currentiy being used by the nonaviation businesses on the west side of the 

airport; see exhibit 23, airport diagram/map. 

\l'^'\ While Skydive Sacramento waited for the City to rule on its drop zone application, it 

rented land about six miles from the Airport for a drop zone. This required that jumpers ride 

back to the Airport in a van after each jump. The cost and inconvenience of the van ride placed 

Skydive Sacramento at a competitive disadvantage with its three competing skydive operators in 

the area, all of which could land on their airports (Exhibit 1). 

CjiA Following Complainant's September 2007 application the City took seven months to 

deny Complainant use of the land for a drop zone on the Airport (Exhibit 28). 

(VTI Because the City had claimed that its reason for denial was safety, and the parties knew 

that the FAA had the final word on safety of drop zone proposals, the San Francisco ADO was 
contacted and a siifety study was requested. Ihe ADO had the Sacramento FSDO conduct the 

study, which was completed on November 21, 2008 with a finding that a drop zone could be 

operated safely (Exhibit 3). 

rpkl While the safety review was in process, Complainant also contacted NORCAL TRACON 

regarding safe operations and coordination between jump aircraft and air traffic control. The 

TRACON found that skydiving operations could be conducted safely and on October 18, 2008 

issued a letter of agreement regarding such operations (Exhibit 4). 

Tpn Complainant made another request as a commercial aeronautical operator to land on the 

airport (Exhibit 29). 

(^6? On December 20,2008, without negotiation, the City presented a drop zone lease 

(Exhibit 4). 

[ 3 n Upon examination of the lease it was apparent to Complainant that there were significant 

problems with it, notably a requirement for $ 1,000,000 of commercial general insurance 

coverage for skydiving. There is no such insurance available, at any price (Exhibit 30), and it 

has not been available since the 1980s. There were recitals regarding estimates of traffic 

increases on the Airport which were out of date and untrue, to which Complainant could not 

agree and were not included in other commercial aviation leases on the Airport; recitals that 

implied that the Complainant's activities on the airport were unsafe, which recitals were not 

included in other commercial aviation leases on the Airport and recitals that indicated that 

skydiving was a second-class aeronautical activity and could be excluded from the airport in 

favor of other aeronautical activities. 

\^Z3, Complainant retained counsel who contacted the City, outlining problems with the Lease 

and requesting a meeting to negotiate a mutually agreeable lea.se. Complainant also filed a Part 
13 complaint with the FAA ADO. To date, there has been no response from the FAA and that 

complaint is mooted by this. Part 16 Complaint. 

y^UCi Complainant was able to lease land closer to the Airport, culling down on the time that its 

customers had to spend riding in a van after each jump, but the fact that Complainant had lo 

transport its customers by van after each jump was still an added cost and placed it at a 

competitive disadvantage to those operators whose customers could simply land on their airport 

drop zone, walk to the office, repack their parachutes and reboard the jump airplane (Exhibit 1) 

Complainant also had to pay $3,500 to have the land for that drop zone graded. 

Rj^T After Complainant let the City know that the lease was unacceptable counsel for the Cily 

advised that the City would revise the lease. Noting that loading skydivers adjacent to the drop 

zone so no van ride was required after a jump was one of the most important facets to the success 

of the drop zone (Exhibit 8) Complainant's counsel began what became a series of requests for 

meetings with the City to negotiate lease terms (Exhibits 6, 8, 11-14 and 16). Over the course of 

requests for meetings over the next few months, the City never agreed to meet to negotiate. 

|[^ 1 While the City was revising the lease, the airport manager carried out what was a thinly 

veiled campaign of harassment of Complainant. Despite publishing a newsletter and promising a 

forty-cent per gallon fuel discount/rebate for purchasers of more than 300 gallons of fuel and 

Complainant regularly purchasing more than 300 gallons of fuel in a day, the airport jnanager 

refused to provide the discount/rebate (Exhibits 1, 7 and 31). Complainant contracted for a Twin 

Otter airplane to carry its customers to altitude. The airport manager applied pressure to the pilot 

of the Twin Otter over tiedown and fuel fees which Complainant had paid and eventually made 

threats to the pilot which caused him to take the airplane and leave, costing Complainant several 

thousand dollars in revenue until it could arrange for another twin-engine turboprop jump 
airplane (Exhibit 1). The ASOS for the Airport is a recorded radio broadcast of weather and 

.safety information that is listened to by pilots prior to departing from or arriving at the Lincoln 

Airport. A notice that skydiving was taking place was placed on the ASOS for the purpose of 

increasing the level of safety for all users of the Airport. Three times the airport manager 

removed the notice. The first two times complaints from airport users caused him to replace il. 

The third time it took notice to the City's attorney to have the notice put back on the ASOS 

(Exhibit 1). 

r % j After several requests (Exhibit 9), and a continuing refusal to meet to negotiate, the City 

senl out a second drop zone lease on March 9,2009. 

T'^ll This lease was an improvement in terms of the size and location of the drop zone, 

however, it retained terms that were inappropriate in a commercial operating lease, especially 

requiring insurance that was unattainable at any price and having Complainant pay for the City's 

insurance when no other operators had lo do so. It still contained terms and conditions that were 

not required of other commercial aviation operators on the Airport and included tenns that were 

internally inconsistent, setting up Complainant to violate the terms of the lease no matter what it 

did. Complainant responded to the second lease with two suggested approaches to an agreement 

and again requested a meeting to negotiate an agreement for a drop zone as Complainant was 

continuing to face a competitive disadvantage and loss of business (Exhibit 10), 

I S^T ^'^^ ^^^y ^^^^ '^ would revise the lease, but still, despite repeated requests (Exhibits 6, 8, 

11-14 and 16) refused to negotiate and continued its practice of unilaterally issuing a drop zone 

lease on "take it or leave it" ternis. The third drop zone Lease was sent out on April 20, 2009 

(Exhibit 19). It is the subject of this Complaint. 

10 
\ ^ 1 Following the issuance of the third proposed Lease, Complainant made altempts to 

negotiate with the City, even attending a July meeting of all of the commercial operators with the 

City sjwnsored by the Chamber of Commerce in which the operators outlined their continued 

problems in dealing with the airport manager and the Cily, even though Complainant was told 

that the Cily Manager would meet to discuss the lease. Complainant's phone call to him to do so 

was never returned (Exhibit 1). This Complaint followed. 

IV. Violations by City of Lincoln, California 

Applicable I^aw 

ufol 49 USC § 47101, etseq., provides for Federal airport financial assistance for the 

development of public-use airports under the Airport Improvement Prograin (AlP) established by 

the Airport and Airway Improvement Act (AAIA), as amended. 49 USC § 47107. e( seq., sets 

forth assurances to which an airport sponsor agrees as a condition of receiving Federal financial 

assistance. Upon acceptance of an AIP grant, the assurances become a binding obligation 

between the airport sponsor and the Federal government. The FAA has a statutory mandate to 

ensure that airport operators comply with the sponsor assurances. 

U \\ 49 USC § 47107(a) states, in part: 

"General Written Assurances. - fhe Secretary of Transportation 

may approve a project grant application under this subchapter for 

an airport development project only if the Secretary receives written 

assurances, satisfactory to the Secretary that- (1) the airport will be 

available for public use on reasonable conditions and without unjust 

discrimination;. , ," 

11 
As a recipient of federal grants for the Lincoln Regional Airporl, the Cily of Lincoln provided 

written assurances of compliance with its obligation to make the airport available for public use 

without unjust discrimination, 

\jCl The owner of any airport developed with Federal grant assistance is required to operate 

the airport for the use and benefit of the public and to make it available lo all types, kinds, and 

classes of aeronautical activity on reasonable tenns, and without unjust discrintination; see Grant 

Assurance 22, Economic Nondiscrimination, of the prescribed sponsor assurances which 

implements the provisions of 49 USC § 47107(a)(1) through (6). 

r/f^l FAA Order 5190.6A, Airporl Compliance Requiremenls, describes in detail the 

responsibilities assumed by the owners of public-use airports developed with Federal assistance. 

Appendix 5 of the Order clearly defines parachute activities as an aeronautical activity and gives 

that activity no greater or lesser weight than other aeronautical activities protected by grant 

assurances. Parachute activities are given equal access to airports developed with Federal , 

assistance as are all other defined aeronautical activities. Section 4,8.b. of the Order, entitled 

Parachute Jumping, states: 

"Parachute jumping is an aeronautical use and requests to airport 

owners from parachute jumping clubs, organizations or individuals 

to establish a drop zone within the boundaries of an airport should be 

evaluated on the same basis as other aeronautical uses of the airport." 

(emphasis added) 

Q<J 1 49 USC § 40103(e) prescribes, in part: 

"No Exclusive Rights at Certain Facilities.-A person does not have 

an exclusive right to use an air navigation facility on which Government 

money has been expended." 

y 4 y FAA Advisory Circular AC 150/5190-6, which was created by the FAA to provide 

guidance to airport sponsors in complying with the statutory' prohibition on granting of exclusive 

12 
rights (49 USC § 40103(e) and unjustiy discriminating against aeronautical users of airports, ll 

makes clear in Section 1.2 Agency Policy; 

"An exclusive rights violation occurs when the airport sponsor 

excludes others, either intentionally or uninlcntionally, from 

participating in an on-airport aeronautical activity." 

14CM The actions of the City in establishing unaltainabie, unequal and unreasonably 

discriminatory terms in the lease it seeks to impose on Complainant amount to violations of the 

statutes and its grant assurances as will be set forth below. 

Specific Violations 

\4n i 1"^ the Lease the City has attempted to impose on Complainant (Exhibit 19), the City is in 

violation of its grant assurances in the following sections. 

T M H A. Section 11 of the Lease (Exhibit 19), Insurance imposes insurance requirements 

on Complainant as a condition of the Lease. Complainant currently carries various liability 

policies for its skydiving operation, on which it names the City as an additional insured, and 

stands ready to continue those policies as required by the Lease. However, one of the types of 

insurance specified, commercial general liability insurance that covers skydiving, simply does 

not exist. Section 11.a. of the Lease requires "commercial general liability insurance for 

premises use, skydiving and aircraft operations, and automobile liability for licensed vehicles 

utilized on the Premise or on Airport." The coverage required by the City is "$1,000,000 per 

occurrence for the enumerated items" (Exhibit 19, Section 1 l.a.i.). Further, the Lease requires 

that any skydiving exclusion for commercial general liability must be deleted (Exhibit 19, 

Section ll.a.u.). 

13 
l ^ J It has not been possible to obtain commercial general liability insurance for skydiving 

since the 1980s (Exhibit 30). Commercial general liability insurance for skydiving is not 

available at any price for any level of coverage (Exhibit 30). 

[ p Q The City was advised, and has never disagreed, that commercial general liability 

insurance that covers skydiving is not available in the insurance market at any price. 

Qsi) Placing an unattainable requirement for airport access is a violation of 49 USC §§ 47107, 

40103(e) and the grant agreements. Section 3-12. Administration of Policy, of FAA Order 

5190,6A, discussing the minimum standards for commercial operators seeking to operate on an 

airport so that the airporl sponsor complies with 49 USC §§ 47107 and 40103(e) states in 

relevant part: 

", .. A prudent airport management should establish minimum 

standards to be met by all who would engage in a commercial 

aeronautical enterprise at the airport. Il is the prerogative of the 

airport owner to impose conditions on users of the airport to ensure 

its safe and efficient operation. Such conditions must, however, 

be fair, equal and not unjustly discriminatory. That is to say, they 

must be relevant to the proposed activity, reasonably allainable, 

and uniformly applied " (Emphasis added) 

LStJ The FAA requires that standards be reasonably attainable. Insurance that is unattainable 

at any price does not fit any definition of attainable, reasonable or not. 

\Si ^ By establishing an impossible standard for insurance, the City is preventing Complainant 

from "participating in an on-airport aeronautical activity" (AC 150/5190-6, Sec. 1.2), a clear 

violation of 49 USC §§ 47107, 40103(e) and the City's grant obligations. 

|^'^'\ Complainant notes that in its research into other drop zones across the country that where 

liability insurance is required the approach varies, however, it found no drop zones where an 

airport sponsor required unattainable insurance. It was advised thai at least one drop zone 

14 
agreement specified liability insurance coverage and added a clause 'if obtainable" to the 

standard. 

f^^ B. Section 11 of the Lease (Exhibit 19) requires the same insurance coverage for 

each of Complainant's subcontractors. Complainant contracts with persons lo repack parachutes 

and with aircraft operators to provide skydiving aircraft as needed (Exhibit 1). As set out in the 

preceding section, commercial general skydiving liability insurance is not available. Setting a 

standard for any subcontractor of Complainant that is unattainable has the effecl of barring 

Complainant from participating in an on-airport aeronautical activity, a violation of 49 USC §§ 

47107 and 40103(e), see Section 1.2 of FAA Advisory Circular AC150/5190-6. 

\^o j The section of the Lease requiring unattainable insurance for subcontractors of 

Complainant is a violation of 49 USC §§ 47107, 40103(e) and the City's grant agreements. 

L'?1? ^- Automobile liability - Section 11, of the Lease (Exhibit 19) also requires 

$1,000,000 in automobile liability coverage. Thus far Complainant has not found such coverage 

for a company of its small size. To the extent this insurance is unattainable it is a violation of the 

City's grant assurances as set forth above. To the extent such an insurance requirement is more 

than is required of other commercial aeronautical enterprises on the airport it is a violation as set 

forth in subsection E, below, 

{S'il D To the extent that any portion of Section 11 of the lease (Exhibit 19) calls for 

liability coverage that is not available to Complainanl, it should be stricken as not attainable and 

a violation of 49 USC §§ 47107,40103(e) and the City's grant agreements. 

( ^^'\ Complainant recognizes that the FAA may not have the authority to rewrite the lease at 

issue beyond recognizing sections that are in violation of the grant assurances; however. 

Complainant recognizes and has no objection to the City's desire to be an additional insured on 

15 
Complainant's insurance coverage and Complainant would prefer that skydiving insurance were 

available. Complainant also recognizes that the insurance market may change in the future and 

suggests that the insurance coverage sections of the policy can be made to comply with the law 

and the grant assurances by conforming the liability limits with those of the other commercial 

operators on the airport and the insertion of the words "if obtainable". Thus, should the 

insurance market change during the term of the lease, such insurance would be obtained. 

Complainant notes that this was suggested to City, however. City has refused to negotiate this 

section of the lease. 

[kol E. I'o the extent the liability limits required in Section 11 of the Lease (Exhibit 19) 

are higher than those of other commercial aeronautical enterprises on the airport. Complainant 

objects to those limits as a violation of 49 USC §§ 47107, 40103(e) and the grant assurances. As 

previously pointed out. Section 3-12, Administration of Policy, of FAA Order 5I90.6A 

establishes requirement for standards that are established for commercial operators for 

aeronautical activity on an airport so as to avoid unjust discrimination: 

"Such conditions must, however, be fair, equal, and not unjustiy 

discriminatory." (Emphasis added) 

City has thus far not provided Complainant with copies of leases with the other commercial 

aeronautical operators on the airport. The Cily is required to impose equal conditions on 

Complainant regarding liability limits with those operators. To the extent that they are not equal, 

the City is in violation of 49 USC §§ 47107, 40103(e) and its grant assurances (FAA Order 

5190.6A), Should Complainanl be given evidence that the liability limits are equal and 

attainable, it will withdraw this section of its Complaint. 

I ^M F. Section 11 .c. of the Lease (Exhibit 19) requires that Complainant pay for the 

City's insurance coverage for the aeronautical activity of skydiving. This establishes a condition 

16 
on Complainant placed on no other aeronautical user or commercial aeronautical enterprise on 

the airport. 

\J^'Z\ 1 '^^ airplane fiight schools do not have to pay for the City's insurance coverage for the 

risk it faces for airplane (light schools, fhe helicopter fiight school does not have to pay for the 

City's insurance coverage for the risk it faces for a helicopter fiight school. The aircraft 

maintenance facilities do not have lo pay for the City's insurance coverage for the risk it faces 

for aircraft maintenance facilities, fhe aircraft rental companies do not have to pay for the 

City's insurance coverage for the risk it faces for aircraft rental companies. The aircraft charter 

companies do not have to pay for the City's insurance coverage for the risk it faces for aircraft 

charter companies. The renters of hangars on the airport do not have to pay for the City's 

insurance for the risk it faces for renting aircraft hangars. 

1 ^5 / Placing a requirement on only Complainant to pay for the City's insurance is not only a 

condition that is not equal to the conditions placed on the other commercial operators, a violation 

of 49 USC §§ 47107 and 40103(e) (Section 3-12, Administration of Policy, of FAA Order 

5190,6A), it is also a violation of the prohibition against unjust discrimination in the statutes and 

that Order, 

\ J ^ \ The requirement to pay for the City's insurance is also inappropriate in that Complainant 

has been unable to locate any evidence that any airport sponsor has ever been held liable as a 

result of an injury or death in a skydiving accident. 

(L^' \ O. Recitals C, D, E, F, G and H of the Lease (Exhibit 19) make gratuitous remarks 

about expected level of air traffic at the airport which have proven to be wildly out of touch with 

reality as general aviation activity has plummeted during the recession (current predictions are 

that it will not regain 2007 levels for another ten years, see www.avweb.com), safety of a 

17 
particular aeronautical activity and the right of the City to kick Complainanl off of the airport. 

Such comments making the implication that commercial skydiving operation is a second-class 

aeronautical citizen, a less than desired user of the airport, that better watch its step among its 

betters, are absolutely inappropriate and in violation of the statutory requirement that the City 

must treat all aeronautical users equally, see Section 3-12, Administration of Policy, of FAA 

Order5l90.6A. 

I ( ^ I T^he mere fact that someone believed that use of the airport was once expected to increase 

in the future is irrelevant to the terms of the Lease and is, without more, not relevant to whether 

the Cily can toss Complainant off of the airport. (The current recession is also an indication that 

such predictions can prove to be horrendously wrong and have no place in a lease such the one at 

issue.) It is settled law that if the FAA finds that an aeronautical use of the airport is unsafe, it, 

and it alone, may then prohibit such use, no matter what aeronautical use it is, see Section 4-8, 

Restrictions on Aeronautical Use of Airport, FAA Order 5190.6A, That use may be airplanes, 

helicopters, balloons or skydivers, yet the City did not put such language in leases for any other 

aeronautical enterprises on the Airport, The FAA is the final arbiter as to whether an 

aeronautical use of an airport may be carried out safely. For the City to single out Complainant 

for an insulting reminder that its operation may be terminated on the airport when it does not do 

so for any other aeronautical user that has a lease on the Airport, fails the test of equal treatment 

and unjust discrimination under the grant assurances. The referenced recitals should be stricken 

from the Lease as a violation of 49 USC §§ 47107,40103(e) and the grant assurances. 

I (^']\ H. The final sentence of Lease Section 2, Rent, provides for an annual 5% increase 

in rent. Complainant has been unable to locate a lease between any other aeronautical user of the 

airport and the City that has such a high annual rental rate increase. To the extent the annual 

18 
increase is unequal to that of the other commercial operators on the airport, it should be either 

stricken or be adjusted to an annual increase equal to other commercial users as a violation of 49 

USC §§ 47107 and 40103(e), see FAA Order 5190.6A. 

M ^ I I. The Cily will only allow a two-year term for the Lease with Complainant, Section 

3 (Exhibit 19). This is inconsistent with Ihe leases provided other commercial aeronautical 

enterprises on the Airport and amounts to unjust discrimination, in violation of 49 USC §§ 

47107,40103(e) and the grant assurances as set out in FAA order 5190.6A. The term should be 

equal to that of other commercial users, to the understanding of Complainant, 20 years with an 

option to renew. 

I t ^ I J Section 5 of the Lease (Exhibit 19) Operation of Drop Zone sets up an 

irreconcilable inconsistency in the Lease, creating unjust discrimination by establishing a 

condition in which Complainant can be unable to comply with the Lease terms no matter what it 

does. The Section restates the terms of the findings of the FAA as to the procedure to safely 

operate a drop zone on the airport (Exhibit 3) and the Letter of Agreement between Skydive 

Sacramento and Northern California TRACON (4). At first glance that seems innocuous, just a 

routine section requiring compliance with specific guidelines from the FAA, even if it is 

redundant when the terms of Section 8 of the Lease requiring compliance with FAA rules. 

However, upon inspection it becomes an extremely clever time bomb to prevent Complainant 

from having access to the Airport. 

I n^ l ^"^^' ^^^^^ '^ nothing comparable to it is in the leases between the City and other 

commercial aeronautical users of the airport, a violation of 49 USC §§ 47107,40103(e) and the 

grant assurances, see FAA Order 5190.6A. What is in the other leases, as well as this one, is 

Section 8.a., which requires that the Lessee comply with all applicable laws and regulations. 

19 
Section 8 is perfectly acceptable and is applied equally, without discrimination, among the 

commercial users of the airport. 

I I t I Because the underlying guidelines set out by the Sacramento FSDO and Northern 

California TRACON are subject to change by those agencies and only the current guidelines 

were memorialized in Section 5 of the Lease, when the conditions are changed by the FAA, and 

Complainant complies with the changed conditions, it is immediately in violation of Section 5 of 

the Lease, even though it is in compliance with Section 8.a, By creating a lease that sets up 

Complainant for breach when the FAA changes the safety procedures for Complainant's 

operations, the City has taken action that is calculated to prohibit Complainant's access to the 

airport, a violation of 49 USC §§ 47107, 40103(e) and the City's grant assurances. 

[]l2^ Section 5 of the Lease should be stricken as a violation of 49 USC §§ 47107,40103(e) 

and the City's grant assurances. Because Section 5 of the Lease is currently redundant because 

of Section 8.a.'s terms, the City is in no way prejudiced by striking it from the Lease; in 

complying with Section 8, Complainant also complies with the current guidelines from the FAA 

FSDO and ADO. 

I yz I K. Section 6 of the Lease (Exhibit 19) defines the uses to which Complainant may 

put the drop zone to be leased from the City, 

P'l/l'l 1, Part (a) of the Use section allows Complainant to only use the premises, 

an open field that is ideal for a drop zone, solely for the purpose of a drop zone. The area is 

logically useable for other specific aeronautical activities, particularly hot air balloon launching 

and helicopter fiight training (hover). As all of Complainant's skydiving activities are performed 

with radio communications during each jump run, mixing in early morning and late evening 

balloon launches (the only time hot air ballooning takes place due to the FAA restrictions on 

20 
balloons prohibiting their operation when thermals are exlanl) and helicopter training when 

skydiving is not taking place, makes sense and can be done with the same level of safety as is 

currently present in the mix of aeronautical activities elsewhere on the airport. Complainanl 

notes that not all airplanes using the airporl have radios and they have safely mixed with other 

airplane, helicopter, skydiving and hot air balloon tralfic for years, 

I 1^ [ '^ he City does not limit its commercial operators with whom it has leases to a sole 

aeronautical activity on their leased premises or to a sole type of aircraft. Accordingly, the use 

restriction should be struck down as unequal and unjustly discriminatory, contrary to 49 USC §§ 

47107, 40103(e) and the City's grant assurances, see FAA Order 5190.6A. 

(TCl ^ ^^^^ (^) ^^ ^^'^ ^^^ section of the Lease prohibits Complainant from 

erecting any building or structure improvement on the premise. This is unreasonable and 

unequal treatment, clearly discriminating against Complainant, Adjacent to the area of the 

airport to be used for the drop zone the City has allowed nonaeronautical lessees to erect 

buildings for their businesses (Exhibits 1, 24 and 26). Just south of the premises the City is 

storing large, unserviceable vehicles such as buses as well as dumping torn up pavement 

(Exhibits I and 25). Other commercial lessees have built or are leasing buildings on the airport 

that were not built by the Airport. Complainant seeks to erect a building or buildings in which to 

house an office and space to repack parachutes; that is, to carry out its business. There is no 

safety or aesthetic reason for the City to prohibit such building, especially if the structures are 

temporary and can be removed at the end of the lease. The condition imposed on Complainant is 

unequal to the conditions applied to other commercial enterprises, aeronautical and 

nonaeronautical, of the airport. 

21 
I '7 / j It is particularly egregious that for an airport built with Federal money for the purpose of 

aeronautical use to have the City give preference and better lease conditions lo nonaeronaulical 

tenants. The restriction should be stricken from the lease as a violation of 49 USC §§ 47107, 

40103(e) and the grant assurances. When Part (d) of the Use section is stricken and building is 

permitted, Part (b) prohibiting storage of any kind should be amended to allow storage of 

materials pertinent to Complainant's business, written in a manner consistent with other 

coiTimercial leases between aeronautical users and the City. 

[ "H^ J 3. Part (g)of the Use section of the lease (Exhibit 19) is gratuitous, 

extraneous, insulting verbiage intended to present Complainant as a less than desirable tenant on 

the airport. Such language is not in other commercial leases between aeronautical enterprises 

and the Cily, thus creating unequal treatment of Complainant and unjust discrimination against 

Complainant in violation of 49 USC §§ 47107,40103(e) and the grant assurances, see FAA 

Order 5190.6A, Part (g) of the Use section of the lease should be ordered stricken, 

I "7^ / L, Section 13 of the Lease (Exhibit 19) requires Complainant and its subcontractors 

to indemnify the City for actions of Complainant and subcontractors. However, it does not 

provide for indemnification of Complainant for the actions of the City that may cause harm to 

Complainant, As such, it is unequal treatment of Complainant by the City and in violation of 49 

USC §§ 47107,40103(e) and the City's grant assurances. An order should be issued either 

striking Section 13 of the lease or requiring that the indemnification provision be mutual and 

equal, 

I ^6 J M. Section 14 of the Lease (Exhibit 19) is the environmental section and contains an 

indemnification section with requirements as outlined in the preceding paragraph. Because it 

does not provide for indemnification of Complainant for actions of the City which may cause 

22 
harm to Complainant. It is, therefore, unequal treatment of Complainanl by the City and in 

violation of 49 USC §§ 47107,40103(e) and the City's grant assurances. An order should be 

i.ssLied either striking the indemnification provisions of Section 14 of the Lease or requirin(» that 

the indemnification be mutual and equal. 

/ ^ 1 / ^" Section 25 of the Lease (Exhibit 19) makes time of the essence for Complainant's 

performance but not City. Such unequal treatment of Complainanl is a violation of 49 USC §§ 

47107, 40103(e) and the City's grant assurances. An order should be issued either striking 

Section 25 of the Lease or requiring that il be mutual and equal. 

» V. How Complainant Has Been Affected 

j ^Z A Complainant has suffered financial loss from a competitive disadvantage in being unable 

to have its customers land on a drop zone on the Airport so as to avoid a van ride back to the 

point where the parachutes are repacked and jump airplane reboarded (along with facing the 

costs involved with providing a van and driver) (Exhibit 1). It has also had to pay some $3,500 

to grade and level the drop zone il has rented. Complainant suffered loss of business when the 

airporl manager made repeated threats against the pilot of a Twin Otter that was under contract to 

Complainant to carry jumpers. The threats were successful in that the pilot took the airplane and 

left, leaving Complainant to use a single-engine airplane that could only carry a small fraction of 

the customers who would have otherwise gone in the Twin Otter. 

I ^2>T Complainant has been unable to get the airport manager to return telephone calls since 

January of this year. Further, the airport manager set up a forty-cent per gallon rebate program 

for persons purchasing large quantities of fuel (Exhibit 7), including Complainant, but has yet to 

return Complainant's money for the thousands of gallons of fuel it has purchased. 

23 
1^47 Complainant is one of the largest, \[' not ihe largest, purchaser of fuel on the Airport, It 

pays subslantiiil federal taxes forairpoit improvement with every gallon of aviation fuel it 

purchases from the City, The City makes a profit on every gallon of fuel it sells to Complainanl, 

Yet Complainant cannot get the benefit of those federal airport improvement taxes and the 

money it pays to the Cily because the City has prevented it from a legal and safe on-airporl 

aeronautical activity, 

I ^j [ ^^ '5 particularly ironic that while the City is discriminating against Complainant as if it 

were some sort of aeronautical untouchable. Complainant is one of the very few aeronautical 

businesses on the Airport that is doing reasonably well during the recession and whose business 

would double or triple when using an on-airport drop zone, meaning more income to the City. In 

a time when it is financially strapped, the City is turning down a safe, legal way of increasing its 

revenues on the Airport. 

L ^ 1 Complainant is further affected by the discriminatory behavior of the City in that it is 

faced with the costs of this Complaint. At a difficult financial time, so is the City, 

VI. Relief Desired 

[Q']1 Complainant seeks an Order from the FAA confirming the terms of Section 3-12 of FAA 

Order 5190.6A that standards for commercial aeronautical enterprises on an airport that are not 

attainable are in violation of 49 USC §§ 47107,40103(e) and an airport sponsor's grant 

assurances and prohibiting City froin imposing liability insurance requireinents on Complainant 

and its subcontractors that are unobtainable; thus striking the portions of Section 11 of the Lease 

regarding skydiving commercial general liability and auto insurance coverage and policy limits 

that are not available. 

24 
^ ^M Complainant further seeks an Order from the FAA confirming the terms of Section 3-12 

of FAA Order 5190.6A implementing 49 USC §§ 47107, 40103(e) and grant assurances, that 

conditions on all those who engage in commercial aeronautical enterprise on an airport must be 

equal and prohibiting City from imposing terms in the following Lease sections: 11 (automobile 

liability insurance policy limits); I I.e. (Complainant to pay for City's liability insurance for ils 

specific aeronautical activity); Recitals C, D, E, F, G and H; the final sentence of Section 2 

(annual rent increase, to the extent it is not equal to other commercial aeronautical enterprises on 

the Airport); Section 3 (Lease term, to the extent it is less than other commercial aeronautical 

enterprises on the Airport); Section 5; Section 6,a, (to the extent it limits the type of aeronautical 

activity on the drop zone); Section 6.d. (to the extent it prohibits erection of a building for 

Complainant to carry out its business); Section 6,g, (to the extent it prohibits storage of businessrelated material within Complainant's building); and Sections 13, 14 and 25 (to the extent the 

obligations set out are not mutual). 

1 ^ 7 P'"^"y' Complainant seeks an Order from the FAA requiring that City enter into a lease 

with Complainant within thirty days that is in compliance with the Order(s) the FAA issues in 

this matter and the City's grant assurances and that City take no retaliatory action against 

Complainant for filing this Complaint 

Respectfully submitted, 

Richard J. Durden, Attorney at Law 

Attorney for Complainant 

Dated 3 / . 2 ^0 / By: 

27987 Richmond Hill Road 

Conifer, Colorado 80433 

(616)901-65156 

25 
CERTIFICATE OF SERVICE 

1 hereby certify that I have ihis day served the foregoing Complaint on the following 

persons at the following addresses by United Stales Postal Service Express Mail: 

Timothy Hayes 

422 Century Park Drive 

Suite A 

Yuba Cily, California 95991 

Jim Estep 

City Manager 

Cily of Lincoln 

600 Sixth Street 

Lincoln, California 95648 

Dated this 31'' day of July, 2009 

Tichard J. EMden 

For Coinplamant 

A .•j^t!-*^!!<?•U::^. : .