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### ofMassachusetts
NORWOOD AIRPORT COMMISSION
Mark P. Ryan, Vice Chairman Kevin J. Shaughnessy, Clerk Hylie Hutchens Leslie W. LeBlanc Martin E. Odstrchel Paul V. Shaughnessy, Jr.

July 9, 2015
Office ofthe ChiefCounsel Attention: FAAPart 16 Docket Clerk AGC-600 Federal Aviation Administration 800 Independence Ave., S.W. Washington, D.C. 20591 RE: Respondents' Rebuttal to Complainant's Reply Part 16 Complaint: Boston Executive Helicopters v. Town ofNorwood, Massachusetts and Norwood Airport Commission; DocketNo. 16-15-05
Dear SirorMadam: Michael Sheehan

Pursuantto 14 C.F.R. Part 16, please acceptthis correspondence as the Rebuttal bythe Respondents, Town ofNorwood, Massachusetts ("Town" or "TownofNorwood") and Norwood Airport Commission ("NAC" or "Airport Commission") to the June 8, 2015 Reply bythe Complainant, BostonExecutive Helicopters ("BEH"), following the Respondents' Answerto the Part 16 Complaint (also referred to as the "Complaint"). Forthe reasons discussed below, as well as those already presented inthe May 8, 2015 Answerto the Complaint, the Townandthe NAC (collectively, "Respondents") respectfully request thatthe Federal AviationAdministration ("FAA"): (1) dismiss the Complaint; (2) decline to investigatethe Complaint; (3) determine that the Respondents have complied withthe FAA's Grant Assurances; and (4) take no further action inthe above-referenced matter.
In the interests ofefficiency and economy, the Respondents generally refer to and incorporate herein their Answer, which addresses BEH's arguments on a point-by-pointbasis, accompaniedbyrelated supporting documentation. Issues and arguments raised by the Respondents intheir Answer were necessary to demonstrate the full context ofthe historical and ongoing interactions between BEH and the Respondents, to properly address the incorrect onesided version ofevents presented by BEHin its Complaint, to explainthejustificationfor the Respondents' conduct, and to place the FAA in a properpositionto assess the credibility of BEH's arguments. Accordingly, the Respondents only address here the additional arguments raised by BEHin its June 8, 2015 Reply.
As explained inthe Answer and herein, the actions undertakenbythe Respondents have been equally supportive ofBEH andproviding a competitive environment, while atthe same time applying bonafide requirements necessary to protectthe users ofNorwood Memorial Airport ("Airport") andthe general public. The Respondents never solicited for a second fixed125 Access Road, Norwood, MA 02062 860385vl PH: (781) 255-5616 FAX: (781) 255-5617base operator ("FBO'') business at the Airport, and BEH's attempt to establish such an FBO business have been after the fact, notwithstanding priorrepresentations made by BEH when it first arrived at the Airport. Significantly, despite the Respondents' affirmative and proactive efforts to engage BEH, BEH to date has not satisfied all ofthe requirements for issuance ofa commercial permitto operate an FBO business, under applicable Airport requirements and underthe conditional lease offerthat BEH accepted. In its Reply, BEH somehow suggests thatthere is an impropermotive by the Respondents-butthis is contradicted by the Respondents' exhibits and amounts to nothing more than legally charged hyperbole and unsubstantiated speculation. To the extentthat BEH's Complaint and Reply are unsupported by documentation and instead rest upon argument or conjecture, BEHhas not compliedwith its obligations under 16 C.F.R. § 16.23(g), which requires BEH's filings to be "accompaniedby supporting documentation upon which" BEH relies.
BEH has refused or otherwise failed to provide requested financial, insurance, and fuel plan informationrequired by the Respondents, and other information has otherwise been submitted by BEH in a dilatory andpiecemeal manner-which is the reasonthat the Respondents have not granted BEH's commercial permit application atthe presenttime, as documented in the meeting minutes and otherexhibits accompanying the Respondents' Answer and this Rebuttal. Contrary to BEH's suggestion, the Respondents cannot ignore the protection ofthe welfare and safety ofthe users ofthe Airport and the general public.
Final Inspection of BEH Fuel Farm

In their May 8, 2015 Answerto the Complaint, the Respondents noted that BEH had not: (1) submitted the required financial information; or (2) scheduled a mandatory final inspection of its fueling facility by the Norwood Fire Department. Regarding the latterrequirement-the Norwood Fire Department inspection-BEH did finally submitto, and pass, this inspection on May 14, 2015, two (2) months after BEH had filed its Part 16 Complaintto the FAA onMarch 11, 2015 and eleven (11) months after BEH filed its Part 13 Complaint on June 5, 2014.
As noted in Exhibits 37, 38, and 39 ofthe Respondent's Answer, BEH-by express statements made by BEH President Christopher Donovan ("Mr. Donovan") at the May 14, 2014, June 11, 2014, and July 30, 2014 NAC meetings-ledthe Respondents to believe that the final inspection would be handled one (1) year ago. In all ofthat time, BEH did not contact and coordinate a final inspection with the Norwood Fire Department, even though this hadbeen broughtto BEH's attention on any number ofoccasions. Itis a red herring for BEHto have cited the dates ofcompletion ofthe fuel farm-the fuel farm required a final inspectionbefore the Volatile and Inflammable Fluids ("VIF") license could be released bythe Norwood Board of Selectmen ("Board ofSelectmen"), the local licensing authority. Moreover, contrary to BEH's assertion on page 4 ofthe Reply that "itwas his [i.e., Mr. Donovan's] understanding that the VIF inspection required putting fuel in the system," Mr. Donovan in fact neverbotheredto contactthe Norwood Fire Department directly to confirm this assumption. BEH provides no evidence otherwise, and it is unreasonable for Mr. Donovanto 2 860385vlhave relied upon what he personally perceived as the applicable requirements for obtaining a final inspection. Mr. Donovan could have-but did not--contactthe Norwood Fire Department to confirm the exactrequirements for the final inspection, and instead, consistent with his other actions in obtaining a commercial permit, he alone was solely responsible for any delay inthe release ofthe VIF license.
For more than a year--concurrentwith Mr. Donovan's representations about the status of the final inspectionto the NAC-AirportManager Russ Maguire ("Mr. Maguire" or ''Airport Manager") checked in regularly withNorwood Fire ChiefAnthony Greeley ("ChiefGreeley") to determine whether BEH had scheduled its final inspection. In fact, ChiefGreeley, like the Airport Manager and Airport Commission, was mystified that BEH had not, and was not, taking the initiative to undergo a final inspection, all the while BEH/Mr. Donovanwere complaining publicly-and filing legal actions with the FAA (i.e., the withdrawn Part 13 Complaint and the present Part 16 Complaint)-that BEH was being held back without cause by the Airport Commission. Additionally, in a February 12, 2014 email (Exhibit 106) 1

, ChiefGreeley actually recommended that the Airport Commission not issue a commercial (FBO) permitto BEH until BEH had passed its final inspection with the Norwood Fire Department, notwithstanding other requirements bythe Airport Commission such as the outstanding financial information. In his email to the Airport Manager, ChiefGreeley stated:
ifyou grant the full service commercial permit (to BEH), you may want to release that only after final inspection by the NFD (Norwood Fire Department) when thejob is fully completed. Many times the Board of Selectmen grant the VIF [Volatile and Inflammable Fluids] License only to release when final inspection is conducted by the Fire Prevention Bureau. NFD will communicate to yourboard when final inspection is complete and accepted.
See Exhibit 106 (emphasis added). Additionally, ChiefGreeley stated: "Wehave all documentation regarding this project and we are standing by for inspection when ready." See id. (emphasis added). Thus, the Norwood Fire Department was anticipating an inspection in February 2014, some fourteen (14) months before BEH actually submittedto that inspection. BEH, and only BEH, was responsible for that delay.
In its Reply, BEH attempts to characterize the final inspection conducted by the Norwood Fire Department, by describing the alleged reaction ofChiefGreeley duringthat final inspection. See Reply at 4 n.1. In doing so, BEH relies upon hearsay and conjecture in describing Chief Greeley's response, which is unsupported and lacks the type ofsupporting documentation required by 16 C.F.R. § 16.23(g). Nonetheless, it is undisputed that BEH received approval from the Norwood Fire Department after the final inspection was complete as ofMay 14, 2015 (see

1Forpurposes ofconsistency, the Respondents have continued the sequence ofnumbering from the exhibits accompanying their Answer. BEH's exhibits are referred to as "BEHExhibit " 3 860385vlMay 14, 2015 Email from Paul Butters to Fran Jessoe contained in BEH Exhibit 159)-and anything else argued by BEH about that final inspection is simply incorrect. The Board ofSelectmen approved the release ofthe VIF license to BEH at its May 19, 2015 meeting, following the Board ofSelectmen's decision at its January 22,2013 meeting and the May 14, 2015 final inspection. See Exhibit 107. However, BEH Exhibit 160 is not an official record ofthe Board ofSelectmen's meeting-itwas not created or otherwise approved by the Respondents. Instead, Exhibit 107 contains the official minutes ofthe May 19, 2015 Board ofSelectmenmeeting.
BEH's attempt to suggest improper conductby me atthe May 19, 2015 meeting is entirely inappropriate, as BEH chiefly cites a truncated copy ofan unofficial transcript and conjecture (BEH Exhibit 160). Contrary to BEH's argument, and as reflected in the official meeting minutes, the purpose ofmy attendance at the May 19, 2015 Board ofSelectmenmeeting was in my capacity as Norwood Town Engineer, to discuss water and sewerrates, an issue that is completely unrelated to BEH. See Exhibit 107 at 2-3. 

### It was not my intentionto attend that meeting "on [my] own initiative and with no notice to BEH"-whichis an example ofthe type ofinappropriate and incorrect accusatory allegations and rhetoric contained in BEH's Complaint and Reply. See Reply at 4. BEH's VIF license was onthe posted agenda for the same May 19, 2015 meeting as the water and sewerrates. See Exhibit 107 at 4. Forthat reason, the Board ofSelectmenrequested that I remain at the meeting for this separate agenda item, to answer any questions that may arise. See id. Indeed, the official meeting minutes reflect that Idid answer inquiries from the Board of Selectmen-which, unlike the Airport Commission, is not charged with oversight ofthe aviation activities at the Airport. Again, the official meeting minutes-notBEH's unofficial, selfprepared transcript-speaks for itselfin terms ofthe issues deliberated by the Board of Selectmen and my own participation. BEH's unofficial, self-prepared transcript (BEH Exhibit 160) even contradicts the allegations cast by BEH on page 4 ofits Reply.
More to the point, BEH is simply incorrect about the discussion ofits submission for an FBO commercial permit and the Airport Commission's request for financial information for that commercial permit. Consistent with what Iexplained to the Board ofSelectmen, BEH's Fiscal Year 2014 Commercial Permit Application did not include operation as a "Full-service, fixedbase operator," nor did BEH select ""Fuel Storage and Dispensing" among the categories of services it intended to provide. See Exhibit 9. By comparison, BEH did select certain flight operations, ground operations, and unique services as the proposed services on its Fiscal Year 2014 Commercial Permit Application. See id. In other words, BEH did not, in its Fiscal Year Commercial Permit Application hold itselfout or seek approval as a commercial fueling provider orto provide FBO services, which it later sought during Fiscal Year 2014. Additionally, as I explained to the Board ofSelectmen, BEH had not provided the financial information previously requested by the Airport Commission. This is detailed at length in the Respondents' Answer and below. Indeed, one ofthe Selectmen similarly indicatedthat he met with BEH and its attorney regarding this issue, in order to determine howto assist in the

4 860385vlFBO applicationprocess, but BEH "flat outrefused to provide the required financial documents.'' See Exhibit 1 07 at 5.
In a May 26, 2015 letter, as Acting NAC Chairman, I notified BEH in writing thatthe NAC was informed by the Norwood Fire Prevention Bureauthat BEH'sVIF license, approved in January 2013, was subsequently released to BEHby the Norwood Board ofSelectmen following the May 14, 2015 inspection ofBEH's fuel facility and final approval by Chief Greeley. See Exhibit 108. This May 26, 2015 letterreminded BEH that it required a commercial permitto operate an FBO business in orderto engage in orperform commercial fueling activities, including the storage, sale and distribution offuel to or for third parties. See id. The VIF license means that BEHhas obtainedthe required license to operate its fuel farm and, consistent with Section 11.3 ofthe FAA's Compliance Manual-Order 5190.6B (September 2009), may engage in self-fueling activities. This was confirmed inthe May 26, 2015 letterto BEH. See id. At present, BEH does nothave a commercial permit and therefore is limited to selffueling only. The commercial dispensing offuel by BEH is predicated on BEH receiving a commercial permit from the Airport Commissionto operate an FBO. See Exhibit 104 § III (requiring a commercial permitto operate an FBO at the Airport).
Defiance of Commercial Permit Requirement

BEH objects to the recommendation made to the Board ofSelectmen for its May 19, 2015 meetingto conditionthe VIF license to only self-fueling activities. This was a recommendation consistent with Section 11.3 oftheFAA's Compliance Manual-Order 5190.6B (September 2009), as discussed above. Such a recommendationwas in an abundance ofcaution given BEH'sprior conduct, including defiance and a lack oftransparency, and to avoid BEH from using the VIF license as a mechanism to operate an FBO without the required commercial permit.The Airport Commission's concern with BEHusing the VIF license as a means to operate an FBO without the necessary commercial permit appears to have beenrealized. BEH does not dispute the requirements ofthe Airport General Regulations, which require anAirport Commission-issued commercial permitto conduct a commercial activity atthe Airport, including to operate an FBO. See Exhibit 104 §III. Nor does BEH dispute that an FBO commercial permithas not been granted by the Airport Commission-as indicated herein and inthe Answer, BEH has never submitted a complete application for a commercial permit to operate an FBO.
In yet another seeming act ofdefiance, BEHhas begunto advertise and hold itselfoutto the public as a full-service FBO, as shown on BEH'swebsite as recently as July 2, 2015. See Exhibit 109. BEH'swebsite specifically states: "Welcome To Boston Executive Boston's newest Full Service FBO." See id. Moreover, BEH's website advertises FBO services, including "Jet-A" aviation fuel and aircraft ground handling. See id. BEH's actions are egregious and concerningbecause, instead offully providing the requested information

860385v1 5necessary to evaluate BEH's commercial permit application as an FBO or obtaining the requisite commercial permit, BEH has falsely held itselfoutto the general public as capable of functioning as an FBO.
Submittal of Financial and Other Information for Commercial Permit

Another FBO requirement imposed on BEH-to provide the Respondent's withthe requested financial information-remains outstanding. Simply stated, BEH has not submitted the required financial information that both BEH and the Respondent mutually agreed for BEH to provide. BEHhas also not provided a proper insurance certificate or a revised fuel plan consistent with issues raised by FlightLevel Aviation a/k/a FlightLevel Norwood, LLC C'FlightLevel") onthe use ofits Lot G leasehold and a court order issued inpending litigation between FlightLevel and BEH ("FlightLevel/BEH Litigation").
BEH attempts to contradictrecommendations communicatedbythe FAA at the August 5, 2014 land-use compliance inspection at the Airport-which were referenced in my meeting with the Board ofSelectmen. No BEH representative was present whenthese FAArecommendations were communicated. FAA's Tom Vick ("Mr. Vick") and Lauren King actually conducted the day-long inspection, and this was attended by Massachusetts Department ofTransportation ("MassDOT") officials, the Airport Manager, and, for at least some ofthe meeting, onbehalfof the NAC, myself.
Mr. Vick made it clear from the outsetthat FAA would follow a check list during the August 5, 2014 land-use compliance inspection. FormerAirport Commissioner Oulton Hues, Jr. ("Mr. Hues") insisted on raising a question off-topic and outside the FAA checklist Mr. Vick was following. Specifically, Mr. Hues wanted to knowwhether it was within thejurisdiction of an airport authority to ask a prospective business for its business plan and financial information. Mr. Vick stated that itwas a very good idea and in fact that airport authorities should be requiring this (financial) information. That exchange was subsequently captured in the approved minutes ofthe August 13, 2014 Norwood Airport Commissionmeeting. See Exhibit 141 at 2.
The ensuing discussion will showthe Respondents' level ofeffort in attempting to cooperate with BEH and facilitate the receipt and review ofthis information. These efforts have been thwarted orcomplicated in large partbecause ofBEH's professed concern that the financial information be kept confidential and unattainable by a third partythrough a public records request. Moreover, BEH has not provided current and applicable insurance and fuel plan information, despite requests by oronbehalfofthe Respondents?

2 BEH references its business plan, butthe latest iteration ofthis document was only produced in July 2014, following months ofrepeated requests at Airport Commissionmeetings for BEHto submit a properbusiness plan. See, e.g. Exhibits 60, 64. 6 860385vlA. Massachusetts Requirements for Public Records and Public Meetings
As governmental entities, the Respondents are subjectto the Massachusetts Public Records Law (Massachusetts General Laws ("Mass. Gen. Laws") ch. 66, § 10 and Mass. Gen. Laws ch. 4, § 7(26)) and the Massachusetts Open Meeting Law (Mass. Gen. Laws ch. 30A, §§ 18-25). These Massachusetts laws govern third party requests for documents received bythe Respondents (the Massachusetts Public Records Law), and the conduct ofmeetings in open session or executive (closed) session, including the use ofdocuments (the Massachusetts Open Meeting Law). BEH fails to address the applicability ofboth ofthese statutes, which are relevant to the procedure that the Airport Commission approved to accommodate BEH's professed confidentiality concerns for submitting financial information.
From the standpoint ofthe Massachusetts Public Records Law, all documents received by a governmental body-the Airport Commission included-are considered "public records," a term that is broadly defined by Mass. Gen. Laws ch. 4, § 7(26). 3 There is a statutory presumptionthat all public records are public, and a governmental body has a burdento demonstrate with specificity that an exemption from disclosure applies. See Mass. Gen. Laws ch. 66, § 10; Attorney General v. Assistant Commissioner ofReal Property Department of Boston, 404 N.E.2d 1254, 380 Mass. 623, 625 (1980). Exemptions from disclosure (when a third party request is made) are stringently and narrowly interpreted. See Mass. Gen. Laws ch. 4, § 7(26); Assistant Commissioner ofReal Property Department ofBoston, 380 Mass. at 625. The Massachusetts Public Records Lawcontains twenty (20) statutory exemptions, which are outlined in Mass. Gen. Laws ch. 4, § 7(26). None ofthese statutory exemptions directly authorizes the Respondents to withhold BEH's financial information inthe event ofa third party public records request. While Exemption (g) to the Public Records Law applies to trade secrets, commercial information, and financial information, this exemption does "not apply to information submitted as required by law or as a condition ofreceiving a governmental contract or otherbenefit." (Mass. Gen. Laws ch. 4, § 7(26)(g)) (emphasis added). Exemption (g) also is limitedto information "voluntarily provided to an agency for use in developing governmental policy

...." Exemption (g) does not apply because BEH seeks a benefit vis-a-vis a lease and commercial permit, BEH is expected to provide financial information at the request ofthe Airport Commission (ratherthan voluntarily), and BEH is notproviding financial information for the development ofgovernmental policy. Thus, the Respondents would likely be required to disclose BEH's financial records in the event ofa third party request, underthe Massachusetts Public Records Law.

3 The term "public records" is broadly defined as "books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials ordata, regardless ofphysical form orcharacteristics, made orreceived by any officer or employee of any agency, executive office, department, board, commission, bureau, division orauthority ofthe commonwealth, or ofany political subdivisionthereof, or ofany authority establishedbythe general court to serve a public purpose, unless such materials or data fall within the following [statutory] exemptions

...." Mass. Gen. Laws ch. 4, § 7(26). 7 860385vlBy contrast, the Massachusetts OpenMeeting Lawapplies to the conduct ofpublic meetings by public bodies (such as, but not limited to, the Airport Commission). Public bodies
can only deliberate at a duly postedmeeting. See Mass. Gen. Laws ch. 30A, § 18 (containing definitions of"deliberation" and "meeting"); id. § 20 (containing meeting requirements). Unless any often ( 1 0) statutorily defined purposes for executive (closed) session applies, all meetings of
a public body mustbe opento the public. See id. § 20(a). None ofthese ten (10) purposes for executive session applies to the review ofthe BEH's commercial permit application, including the financial informationbeing soughtbythe Airport Commission, and therefore any deliberation ofBEH's commercial permit application must occur in open session. See id. § 21.
The consequence ofan open session is that "all documents and exhibits used atthe [open] session, shall be public records in their entirety and not exemptfrom disclosure pursuantto any ofthe exemptions under" Mass. Gen. Laws ch. 4, § 7(26), the statutory exemptions for the Massachusetts Public Records Law, with two (2) narrow exceptions that do not apply here. See id. § 20(e) (emphasis added). Were the Airport Commissionto discuss BEH'sfinancial information, it not only must occur in open session, but any ofthe financial information would potentially be subjectto disclosure, because Section 20(e) ofthe Massachusetts OpenMeeting Law overrides the Massachusetts Public Records Lawexemptions.
B. Efforts to Secure BEH's Financial Information
As described in its Answer, the Airport Commission and Airport Manager advocated on BEH's behalfwhen BEH soughtto extend its assumption ofthe sublease for Lot F. The Airport Commission and Airport Manager corresponded withthe FAA about BEH's stated needto amortize its proposed developmentthrough a long-term lease. Yet, by April 2014, BEH submitted generalized and insufficiently detailed financial information, which conflicted with BEH's ownrepresentations to the Airport Commission as to the necessity ofa long-term lease. See Exhibit 110.
In any event, in an attempt to advance the receipt ofrepeatedly requested financial information consistent with the purpose ofand obligations contained in the Airport's Minimum Standards, the Airport Commissionvoted at its February 11, 2015 meetingto conditionally offer Parcel A onthe West Apronto BEH. See Exhibit 68. This offer was contingent on BEH providing detailed financial information (contained in Tab B to a February 12, 2015 letter from the Airport Commission's attorney) withinthirty (30) days ofacceptance ofthe lease offer. See id. Suchfinancial information was to be subsequently approvedbythe Airport Commission. See id. This financial information included: (a) three (3) months ofbusiness bank statements; (b)
a balance sheet; (c) an income statement; (d) a cash flow statement/cash onhand/financial reserves; (e) a personal guaranty and financial information from the guarantor (including a credit report); (f) a Dunn and Bradsheet Corporation creditreport; (g) a Certificate ofGood Standing; and (h) a ProofofInsurance. See id. BEHtimely acceptedthe conditional West Apron (Parcel A) lease offer. However, BEHwould notprovide complete and unredacted financial information as required by Tab B to the February 12, 2015 lease offer. See Exhibit 68. In a March 16, 2015 letter from its attorney, the Airport Commissionnotified BEH (through its attorney) thatthe

860385vl 8financial information previously submitted by BEH was incomplete and insufficient, thatthe Airport Commission was concerned aboutthe completeness ofinformation, that information was contained in multiple documents, and that informationproduced was unnecessary redacted. See BEH Exhibit 161. The Airport Commission cited its need to protect itselfand the aeronautical community against financial risk from a new FBO entrant, and relied upon an FAA Director's Determination inFlightline Aviation, Inc. v. City ofShreveport, FAA DocketNo. 16-07-05 (Director's Determination, March 7, 2008) in doing so. See id.
On March 27, 2015, BEH (through its attorney) submitted an incomplete response to the financial informationrequired by Tab B to the February 12, 2015 lease offer. See Exhibit 112. Specifically, BEHrefused to provide guarantorinformation orprovide three (3) months of business bank statements, a balance sheet, or a cashflow statement. See id. BEH also insisted upon a confidentiality agreement as a preconditionto providing a business bank statements and a balance sheet-whichconflicted withthe foregoing provisions ofthe Massachusetts Public Records Law and Massachusetts OpenMeeting Law. At its April15, 2015 meeting, the Airport Commissionunanimously voted to offer an extensionto BEH to provide BEH with more time to provide the Airport Commission withthe requested financial information. See Exhibit 113.5 Nearlythree (3) weeks afterthe Airport Commission'sApril 15, 2015 meeting, BEH submitted a proposed Confidentiality Agreement on May 6, 2015. 6 See BEHExhibit 164. This

4 BEH Exhibit 161 is reflective ofthe charged and accusatory approachundertaken by BEH and its attorneys. Specifically, BEH Exhibit 161 contains a response to an accusation made by BEH Attorney Timothy McCulloch ("Attorney McCulloch") to the Airport Commission's attorney about an alleged statementthat the latter was accused ofmaking at the Airport Commission's March 11, 2015 meeting (which Attorney McCulloch did not even attend). See Exhibit 111. This alleged statement involved the sufficiency ofBEH's financial information. See id. In BEH Exhibit 161, the Airport Commission's attorney respondedthat this allegation was meritless and that no such statementwas ever made bythe Airport Commission's attorney about BEH's financial information. The Airport Commission's attorney further requested that Attorney McCulloch work cooperativelyto address the outstanding issues for BEH's FBO commercial permit application. See BEH Exhibit 161. Notably, Attorney McCulloch acknowledged thathis
own accusation was groundless in his March 27, 2015 letterto the Airport Commission's attorney. See Exhibit 112. 5 BEH Exhibit 163 contains an unofficial transcript ofthe April 15, 2015 Airport Commission meeting, apparently prepared from the recording by a Go Pro camera. This is not an official transcript ordocument ofthe Airport Commission-instead,Respondents' Exhibit 113 contains the official, approved April 15, 2015 Airport Commissionmeeting minutes. 6 In its Reply, BEHunreasonably criticizesthe Airport Commission and its attorney for preparing an Answerto BEH's detailed Complaint at the same time that BEH submitted a Confidentiality Agreement onMay 6, 2015. See BEHExhibit 164. The Answerwas submitted two (2) days later, onMay 8, 2015. Althoughthe Confidentiality Agreement was discussed at the Airport Commission's April 15, 2015 meeting, BEH's attorney waited twenty-one (21) days to submit a draft ofthat Confidentiality Agreement, only days before the nextAirport Commissionmeeting onMay 13, 2015. See Exhibit 112; BEH Exhibit 164. Itis unfair and inconsistent for BEHto delay the preparation ofthat Confidentiality Agreement, butto expect an 9 860385v1Confidentiality Agreement not only directly conflicted with the Massachusetts Public Records Law and Massachusetts Open Meeting Laws, but it was unduly broad and overly burdensome, expressly disclaimed any representation or warranty as to the accuracy ofBEH's financial records, and imposed improper duties and potential liability uponthe Airport Commission. These issues included, but were not limited to, the following:

• BEH defined "Confidential Information" as overly broad inthe Confidentiality Agreement. While the introductory paragraph referred to "Confidential Information" as ''confidential financial and otherbusiness and operations information," the second paragraphbroadly defined the term as "includ[ing], without limitation, any information data orknowledge concerning Disclosing Party that Disclosing Party regards as confidential orproprietary, regardless of form." The foregoing definition not onlybroadens the term "Confidential Information" as extending beyondthe financial andbusiness information described inthe introductoryparagraph, but also left it solely up to BEH alone to determine what is "financial information" or "business information" without any input bythe Airport Commission or consistency withMassachusetts law (such as the definition of"public records" underthe Massachusetts Public Records Law, Mass. Gen. Laws ch. 4, § 7(26)). The term "Confidential Information" also did not contain any exclusion for previously submitted information-such as BEH's business plan-whichwould be subjectto potential disclosure underthe Massachusetts Public Records Lawbecause it had already beenreceived bythe Airport Commission.

• The phrase "Confidential Information" in the secondparagraph ofthe Confidentiality Agreement included "any analyses, compilations, studies orother documents orrecords preparedby Receiving Party that contain, otherwise reflect, are generated from orrelate in any way to any ofthe foregoing." This meantthat the term "Confidential Information" underthe "Confidentiality Agreement" would attach to anything thatthe Airport Commission did inresponse to the document-such as byhaving the information BEH submits reviewed by an outsider (including legal counsel or a financial orbusiness expert, irrespective of the attorney-client privilege, work productprotection, or other applicable privilege orprotection).

• Paragraph 1ofthe Confidentiality Agreement statedthatthe Confidential Information would be used "solely for the purposes ofevaluating BEH's FBO license application." This limitation would preclude any action from beingtaken bythe Airport Commission for any otherreason-such as adverse action in connection with BEH'sFBO commercial permit (e.g., a suspension or revocation). IfBEH were to provide incorrect or false financial orbusiness

immediate turnaround onreview ofthat document, which, as noted above, contained significant deficiencies and conflicts with Federal and Massachusetts law. Such delay is in additionto BEH's ownprior inactions andrefusals to provide financial information, priorto and as requested inthe February 12, 2015 lease offer. 10 860385vl860385vl information, the Airport Commission would not be able to take enforcement action accordingly or otherwise exercise its authority to protect Airportpatrons and the general public.

• Paragraph 2 ofthe ConfidentialityAgreementprovidedthat BEH shall be notified in advance, "withprompt written notice," ofany legally compelled disclosure of the Confidential Information, which included a public records request under Massachusetts law. Such an obligation would create an additional legal requirement uponthe Airport Commissionnot containedunder applicable lawsuch as, but not limited to, requiring BEH's involvement in responding to a public records request. Yet, the obligation ofresponding underthe Massachusetts Public Records Law is imposed upon the governmental agency alone, not a private party. See Mass. Gen. Laws ch. 66, § 10. Ifdisclosure is required underthe Massachusetts Public Records Law-inwhole or in part--Drby legal process (such as a subpoena or investigation) the Airport Commission couldbe required to promptly disclose non-exempt documents, and Paragraph 2 impededthis obligationby creating delay through mandatory notificationto and potential involvement by BEH in a response.

• Paragraph 2 ofthe ConfidentialityAgreement imposed a burdenuponthe Airport Commission, as "Receiving Party," that it will "exercise its good faith efforts to obtain a protective order or otherreliable assurance that confidential treatment will be accorded such Information." This provision created an obligation over and above requirements under a legal process (such as a subpoena or investigation) orthe Massachusetts Public Records Law. Specifically, this provision mandated thatthe Airport Commission seek a protective order (and potentiallybe subjectto liability ifsuch an order is not granted or obtained). By contrast, the Massachusetts Public Records Law does involve protective orders and instead requires that a government agency produce non-exemptrecords and provide the basis for any withholding orredaction.

• Surprisingly, Paragraph 3 ofthe Confidentiality Agreement expressly disclaimed any representation or warranty as to the accuracy orcompleteness ofConfidential Information. This provision created a significant question as to the utility and efficacy ofBEH submitting complete or accurate information and provided a potential difficulty and impediment for the Airport Commissionto rely upon any submitted information. Throughthis provision, BEH could rely uponthe Confidentiality Agreementto insulate itselffrom providing incorrect orinaccurate information, eventhough such information is necessary in a correct and complete form for a review BEH's FBO commercial permit application. The limitation of liability inParagraph 3-thatBEH and BEH's officers, employees, stockholders, members, managers, affiliates, subsidiaries oragents cannotbe liable-was susceptible to interpretation in a way that no adverse action couldbe taken against BEH (including withregard to disciplining its FBO commercial permit) based on the content ofthe Confidential Information.

11• Paragraph 4 ofthe Confidentiality Agreement required the Airport Commissionto return all written materials containing orreflecting Confidential Information. This would preventthe Airport Commissionfrom confirming the content and accuracy ofthe Confidential Information, or from using the same in response to future action with respect to the FBO commercial permit (such as a renewal or any enforcement). A similar concern exists withrespect to Paragraph 6 ofthe Confidentiality Agreement-theterm ''residual knowledge" meantthat such knowledge could not be used bythe Airport Commission subsequentto consideration ofBEH's FBOpermit application orfor any otherpurpose, such as enforcement orto address false or inaccurate financial orbusiness information.

• In Paragraph 8 ofthe Confidentiality Agreement, there was a reference to "individual members" ofthe Airport Commission. While Airport Commissioners act in their official capacities as TownofNorwood officials, this provision could be interpreted as to impose individual liability ofthe Airport Commissioners.

• Paragraph 9 ofthe Confidentiality Agreement created liability for the Airport Commission--eventhoughthere is no such counterpartprovisionunder applicable Massachusetts law, such as but not limitedto the Massachusetts Public Records Law. This potential liability entailed monetary damages, injunctive relief, specific performance, and other equitable remedies for any breach. Also, Paragraph 9 ofthe Confidentiality Agreement would waive any requirementthat BEHmustpost a bond ifit were to sue and be required to post a bond (which potentially exists underthe Massachusetts Rules ofCivil Procedure).

• Paragraph 9 is similarly inconsistent with applicable Massachusetts municipal law by entitling BEH, ifit were deemed a prevailing party, to an award ofattorney fees, costs, litigationrelated expenses, and expert witness fees. Bycomparison, such fees and litigated related expenses are not recoverable underthe Public Records Law.

• Paragraph 10 ofthe Confidentiality Agreement was improperbecause it created liability upon the Airport Commission even after BEH's FBO commercial permit application was reviewed.

• Paragraph 11(ii) ofthe Confidentiality Agreement was unreasonable because it eliminated any immunity or objectionthat couldbe made bythe Airport Commission, regardless ofapplicable Federal or Massachusetts Law. For example, while there is an immunityunder Massachusetts lawfor torts (Mass. Gen. Laws ch. 258, § 10), Paragraph 11(ii) states that such an immunity is waived. Similarly, immunities underthe Federal and Massachusetts civil rights statutes would also be eliminated by Paragraph 11(ii).
See BEH Exhibit 164 (emphasis added). BEH's proposed Confidentiality Agreement was so excessive and stringentthat it could not be rescued by modification.

12 860385vl

### By email to BEH's attorney dated May 12, 2015, the Airport Commission's attorney explained that the specific terms ofBEH'sproposed Confidentiality Agreement were never agreed to in principle or otherwise at the Airport Commission's April15, 2015 meeting. See Exhibit 114. This Confidentiality Agreement was only discussed as a concept at that meeting, and only then as a way ofpotentially addressing BEH'sprofessed confidentiality concerns. See Exhibit 113. The Airport Commission's attorney also explained that the Confidentiality Agreement contained a significant number ofissues, that it potentially violated the Massachusetts Public Records Law, and that the Airport Commission could not contract out of its obligations to comply with the Massachusetts Public Records Law. See Exhibit 114.
In additionto researching and analyzing whether BEH'sproposed Confidentiality Agreement violated Massachusetts law, the Airport Commission's attorney communicated with the Office ofthe Massachusetts Supervisor ofPublic Records and the Office ofthe Attorney General Division ofOpen Government, the state agencies that administer and enforce the Massachusetts Public Records Law and Massachusetts Open Meeting Law, respectively. See Exhibit 115. BEH's allegation concerning the timing and content ofthe research and analysis by the Airport Commission's attorney (see BEH Reply at 6) is unfounded. Rather, the outcome of this research and these communications was a confirmationthat BEH'sproposed Confidentiality Agreement, which had been submitted only one (1) week earlier, conflicted with Massachusetts law, and that discussion ofBEH's financial records by the Airport Commission must occur in open session, withthe potential for mandatory disclosure to a third party upon request following submission. See id. BEH has neverprovided any email or written opinion authored by the Airport Commission's attorney to the contrary. The Airport Commission's attorney addressed his concerns at the Airport Commission's May 13, 2015 meeting, along with the confirmatory verbal opinions provided by the Massachusetts Supervisor ofPublic Records and the Office ofthe Attorney General Division of Open Government. See id.; Exhibit 116. BEH did not submit the unredacted financial records at the May 13, 2015 Airport Commission meeting, nor did it identify precisely which financial records were evenbrought to that meeting. At the May 13, 2015 meeting, the Airport Commission, its attorney, and BEH and BEH's attorney discussed and agreed to a proposed alternative involving a review ofBEH's financial records by an independent third party consultant, paid for by BEH, who would report the outcome ofthe reviewto the Airport Commission for its consideration in evaluating BEH's FBO commercial permit application. See Exhibits 115, 116, 120. This alternative would allow a meaningful assessment ofBEH's financial records, while at the same time addressing BEH's professed confidentiality concerns and rendering mootthe proposed Confidentiality Agreement. See Exhibit 115. The Airport Commission's attorney reminded BEH's attorneys aboutthis alternative laterthat day, and he expressed a willingness to discuss the applicable Massachusetts Public Records Law and Massachusetts Open Meeting Law issues with BEH's attorneys and the mechanics ofthe agreed upon financial records review alternative. See id.

13 860385vlFollowing up onthe request by the Airport Commission's attorney, BEH's attorneys participated in a telephone conference on May 19, 2015. 7 See Exhibit 117. During that telephone conference, the parties' respective attorneys discussed potential qualifications for a third party consultant, and the potential scope ofreview. See id. The Airport Commission's attorney explained that the thirdpartyreview was being conducted, as agreed to by BEH and the Airport Commission at the May 13, 2015 meeting, to address BEH'sprofessed confidentiality concerns. See id.
BEH was also reminded during the May 19,20105 telephone conference that submission offinancial information to the Airport Commission would potentially be subject to disclosure upon request under applicable Massachusetts law. The Airport Commission's attorney further explained that the records would be reviewed to determine ifBEH had submittedthe records identified in Tab Bto the February 12, 2015 lease offer (which, to date, have not been submitted in a complete and unredacted form). In the spirit ofthe efforts ofclosure and expediting approval, the Airport Commission's attorney also explained-contraryto the allegation in BEH's Reply-that a special meeting ofthe Airport Commission could be conducted after the third party review was completed, without waiting for the regular monthly Airport Commission meeting.
A second telephone conference betweenthe parties' attorneys occurred on May 21,2015. See id. Duringthis telephone conference, for the first time, BEH stated that it had no guarantor-previously, in its March 27, 2015 letter, BEH simplyrefused to provide a guarantor or guarantor information. See id.; Exhibit 112. Nor did BEHraise any contention at the Airport Commission's April 15, 2015 and May 13, 2015 meetings, or during the May 19, 2015 telephone conference betweenthe parties' attorneys. See Exhibits 113, 116, 117, 120. There was a clear difference between BEH's refusal to provide information and BEH's suggestionthat there was no responsive informationto submit. In any event, BEH did not objectto providing guarantor information at the April 15, 2015 orMay 13, 2015 Airport Commission meetings, nor did BEH's attorneys objectto providing such information at any time during emails afterthose meetings or the foregoing May 19, 2015 telephone conference. See Exhibits 113, 116, 117, 120. The Airport Commission's attorney followed up the May 21, 2015 telephone conference by confirmingthe procedures for retaining a third party consultant, and for confirming thatthe Airport Commission sought financial information about any individual who would be financially responsible for BEH, giventhe full scale FBO activities proposed and to protectthe public and Airport patrons. See Exhibit 117. The Airport Commission's attorney reminded BEH that a complete submission would be necessary, ratherthan the piecemeal approach undertakenby BEH. See id. Further, the Airport Commission's attorney identified Aviation Management Consulting Group ('"AMCG") as a potential thirdparty reviewer. See id.

7 Inexcusably, BEH'sReply generally includes and/or describes a portion ofAttorney McCulloch's communications to the Airport Commission's attorney, yet fails to include responses from the Airport Commission's attorney, which contradict the allegations contained in BEH'sReply and BEH's one-sided version ofevents. 14 860385vlFor example, the Airport Commission soughtto ensure that BEH couldpay its lease obligations and be financially capable for addressing any potential issues withthe storage, dispensing, handling and sale ofaviation fuel-which rendered it necessary to obtain a guarantor from BEH orreceive information about BEH's investors or guarantor and their financial ability to address such issues. Giventhe limitations under Massachusetts municipal finance law-such as Mass. Gen. Laws ch. 44, § 53-BEH's suggestion ofprepayment ofthe entire West Apron (Parcel A) lease was insufficient and unworkable.
In Flightline Aviation, Inc. v. City ofShreveport, FAA DocketNo. 16-07-05 (Director's Determination, March 7, 2008), the requirement ofa personal guaranty was considered bythe FAA as part ofthe appropriate actions undertaken by an airport sponsorto protect itselffrom financial and/or litigation risk. This is relevant here because BEH has not demonstrated experience to operate an FBO and, contraryto BEH's argument, BEH has not demonstrated to the Airport Commissionthat it has sufficient assets and insurance for the proposed FBO business, which include but are not limited to the attendantrisks for commercial fueling activities. Notwithstanding BEH's agreementto the third partyreview at the May 13, 2015 Airport Commissionmeeting, BEH (through its attorney) objectedto following through with such review in a June 4, 2015 email. See Exhibits 118, 119. While BEH's attorney suggestedthat I conductthis review, this conflicted withthe Airport Commission's May 13, 2015 vote andthe parties' prior agreement, and was deemed inadvisable given BEH's allegations andthe necessity under Massachusetts law (see Mass. Gen. Laws ch. 4, § 6(5)) for the Airport Commissionto deliberate and act as a public body, ratherthanby a single member. See Exhibit 119. During June 2015, the Airport Commission's attorney subsequently contacted AMCG to discuss its willingness and ability to undertake the third party review ofBEH's financial records. See Exhibits 118, 119, 120, and 121. The Airport Commission's attorney also reminded BEH's attorney that BEH could submit complete and un-redacted financial records, butthat it wouldbe doing so without any protection from disclosure under Massachusetts law. See Exhibits 119, 120.
Because ofBEH's wavering and inconsistent responses, by email dated June 16, 2015 and while waiting for a response from AMCG, the Airport Commission's attorney attemptedto confirm the specific financial informationthat BEH expectedto provide to AMCG. See Exhibit 121. This request was renewed onJune 18, 2015, at whichtime the Airport Commission's attorney provided BEH's attorneys with a copy ofAMCG's standardproject authorization agreement and offered to prepare a scope to address the parties' prior agreement and Tab B to the February 12, 2015 lease offer. See Exhibit 122. Byemail dated June 22, 2015, the Airport Commission's attorney prepared the aforementioned scope for AMCG's engagement letter. See Exhibit 123. BEH's attorney then amended the draft scope for AMCG's engagement letter (see Exhibit 124), but did so in a mannerthat ignored the financial informationthat the Airport Commissionrequested inthe February 12, 2015 lease offer, as well as the parties' agreement at the Airport Commission's May 15, 2015 to use a third partyreview (see Exhibit 125). The Airport Commissionhas never

15 860385vlmodified the financial information itpreviouslyrequested under the conditional lease offer for the West Apron (Parcel A), nor has it modified its vote to assign review ofthe financial informationto a third party as agreed to bythe parties. Moreover, while the February 12, 2015 lease offer was limited only to Parcel A onthe West Apron, BEH's attorney attempted to expanded the scope to include the entire WestApron (i.e., Parcels A and B), which was never voted upon, offered by, or otherwise approved bythe Airport Commission (and remains subject to a potential request for proposals process in the near future). See Exhibit 125. BEH also attempted to use the third party reviewto address "a mechanism to ensure full payment ofthe rents for the entire 5-yearterm ofboth the West Ramp Parcel and the entire West Ramp," eventhoughthe only purpose ofthe third party reviewwas to consider whether BEH had submitted the requested financial records, as a result ofits professed confidentiality concerns. See id. This suggested mechanism ignored the concerns for ensuring that BEH could be financially responsible to operate an FBO and pay rent for the lease term. BEH's attorney subsequently responded in a June 25, 2015 letter that mischaracterized the Airport Commission's April15, 2015 meeting. See Exhibit 126. However, as explained in a letter from the Airport Commission's attorney, the Airport Commissionnever voted to reconsider ormodify the financial information identified in Tab B to the February 12, 2015 lease offer, and instead the AMCG scope ofengagement would need to be consistent withthe Airport Commission'spriorvotes (which BEH'sproposed revisions were not). See Exhibit 127. AMCG's scope ofreview currently remains unresolved.
Atthe presenttime, BEH's financial information and business planhave notbeen reviewed by a third party consultantbecause ofBEH's ongoing refusal to provide the information deemed necessary by the Airport Commission, consistent withthe stated purposes of the Airport's Minimum Standards and as outlined in Tab B to the February 12, 2015 lease offer. Norhas BEH agreed to a proper scope ofreviewby AMCG. BEH cannot simply rely upon its experience operating a Part 135 operation as a proper comparator for its ability to start and operate an FBO, which involves an entirely different set ofobligations and financial requirements. The Airport Commissionremains willing to work with BEH in addressing these issues and permitting a second FBO at the Airport, but it must insist upon receiving proper financial records to protect Airport patrons and the general public. The Airport Commission's support is demonstrated by repeated votes to extend BEH's Fiscal Year 2014 and 2015 commercial permits--eventhough BEH's Fiscal Year 2014 commercial permit application failed to request approval for a full scale FBO and such activities were contemplatedby BEH during Fiscal Year 2014. See Exhibits 9, 113, 116, 128.8

8 At its July 8, 2015 meeting, the Airport Commission approved the draft minutes from its June 1

0, 2015 meeting, with minorrevisions not applicable here.

860385vl 16

### C. Other Submittal Issues
In a June 12, 2015 email, the Airport Commission (through its attorney) noted that BEH failed to submit an insurance certificate identifying coverage limits for spills and requested that a revised insurance certificate be provided. See Exhibits 119, 121. This was necessary because of BEH'sproposed fueling activities, and was consistent with the insurance certificate providedby FlightLevel, the existing FBO at the Airport. See id.
In a letter dated June 17, 2015, BEH (through its attorney) declined to provide evidence ofspill coverage, citing the Airport's Minimum Standards and summarily contending that "BEH's current insurance policies meetthe minimum standards and its operation ofa FBO will as well." See Exhibit 129. BEH also argued that it would be branded and follow the standards and insurance coverage requirements for its particularbrand. See id.
BEH's June 17, 2015 response conflicted with multiple representations made by Mr. Donovanto Airport management, in which he stated that he did not intend to sell branded fuel. See Exhibit 122. Based on Mr. Donovan'srepresentations, by selling unbranded fuel, BEH would not be subjectto insurance or otherrequirements imposedby an outside fuel brand and therefore BEH's argument would be illusory. See id. The Airport Commission also reminded BEH that Paragraph V (Insurance) ofthe West Apron (Parcel A) lease offer that BEH accepted required BEHto maintained insurance as may be required bythe Airport Commissionwith limits in the amount(s) specified by law and/orby the Airport Commission. See id. While BEHcited the Minimum Standards, these Minimum Standards did not preclude the Airport Commission from requiring evidence ofspill coverage. The Airport Commissionrequested evidence ofspill coverage from BEH,justas the same had beenprovided by FlightLevel. See id. The Airport Commission even provided BEH with a copy ofFlightLevel's insurance certificate to demonstrate its spill coverage, listed under "Pollution Liab." See Exhibit 130. To date, BEH has notprovidedthe requested insurance certificate for spill coverage, despite priorrequests for such a certificate. See Exhibit 127. After the Airport Commission's July 8, 2015 meeting, BEH's attorney represented to the Airport Commission's attorney that BEH did not want to incurthe additional cost for spill coverage at the presenttime, which amounts to an entirely different reason for BEH'srefusal to provide evidence ofspill coverage. In July 2013, BEH submitted a fueling plan, yet BEH never revised this fueling planto reflect FlightLevel's objections overthe use ofFlightLevel's Lot G orthe court order issued in the pending FlightLevel/BEH Litigation. See Exhibit 13 1. Only afterbeingpromptedby the 

### Airport Commission (through its attorney) did BEH provide a briefnarrative to address its revised fueling plan-yetit was incumbent upon BEH to have raised this issue on its own volition, ratherthan wait for an inquiry from the Airport Commission. See id.
While BEH has suggested in its Reply that it has prevailed inthe FlightLevel/BEH Litigation involving Lot G, this is not the case, because only a preliminary injunctionto preserve the status quo has been issued and there has been no final adjudication onthe merits. See Exhibit 87. BEH's attorney even acknowledged as such, because he stated in a June 23, 2015

17 860385vlemail that the issue ofBEH fueling onLot G "willbe adjudicated inthat action as appropriate'' and "[o]nee that issue is dealt with inthe litigation, BEH will update its fueling plan accordingly." See Exhibit 131.
BEHhas recognized that it could not fuel aircraft on Lot G, based onthe court order in the FlightLevel!BEH Litigation. See id.; see also Exhibit 87. FlightLevel, onthe otherhand, continues to objectto BEH's encroachment into Lot G and has criticized BEH's own design of its Lot 

### F hangar for resulting in the encroachment. See Exhibit 132.
BEH's revised fueling plan-describedonly withbrevity in the June 23, 2015 email from BEH's attorney-necessitates BEH submitting a scaled depiction, to ensure that BEHis in compliance with applicable Object Free Areas and National Fire ProtectionAssociation setbacks. This scaled version was requested ontwo (2) separate occasions, butto date has notbeen submitted by BEH. See Exhibits 127, 133. Accordingly, it is unclear whether BEH can submit a compliantrevised fueling plan, which is necessary giventhe scope ofBEH'sproposed FBO activities. While BEH attempts in its Replyto provide a narrative description ofLot F, its failure to accompany this narrative with a scaledplan (as the Airport Commissionhas requested for the revised fueling plan) renders that discussion unsubstantiated and speculation. See 16 C.F.R. § 16.23(g). Waltzing Matilda Waiver of Financial Information

Onpage 10 ofits Reply, BEH alleges that, atthe April 15, 2015 and May 13, 2015 public meetings, NAC responded to a request from a new airport business, Waltzing Matilda, for a waiver ofthe financial requirements inthe Minimum Standards. NAC did issue a waiver ofthe financial requirements for Waltzing Matilda, and conditionally approvedthe application of Waltzing Matildafor a commercial permit at the May 13, 2015 meeting. See Exhibit 116 at 2. Here, BEH attempts to showthat the Airport Commission gave preferential treatmentto Waltzing Matilda, while requiring BEHto submitthe requested financial information. In fact, recognizing that Waltzing Matildawas a start-up Part 135 operator (not an FBO) and thus, did nothave at that time three (3) months ofoperating expenses, the Airport Commissionwaivedthe Minimum Standards requirementto provide financial informationuntil December 2015, so that Waltzing Matildawould have adequate time to provide the required information to the Airport Commission. See Exhibit 116 at 2. The Airport Commissiondid not waive the submittal of financial information withoutthat condition, and instead determined that an extension ofseven (7) months would provide Waltzing Matilda adequate time to establish the required financial records. Priorto the vote atthe May 13, 2015 meeting, Waltzing Matildanoted that-because it was a newcompany-the owners had not yet separatedtheirpersonal financial information from their company financial information. In fact, the Airport Commissionprovided similar leniency to BEH in 2010, as evidencedbythe limited financial information submittedbyBEH (Exhibit 4)-which similarly lackedthree (3) months ofoperating expenses and certainother financial records. Again, priorto the favorable vote for Waltzing Matilda, this precedentby BEH, among otherAirport commercial permitholders, was introduced into the discussion and deliberation
18 860385vlwhich, with the ensuing favorable vote, allowed Waltzing Matildato begin its commercial operations conditioned on the production offinancial records in seven (7) months. By contrast, BEH has been a commercial permitholder at the Norwood Airport for more than five (5) years. Accordingly, BEH has certainly had sufficienttime and experience to obtain the financial informationrequired by the Airport Commission, particularly given the FBO it proposes to operate. BEH has not provided the Airport Commission with documentation its financial ability to operate an FBO, and its arguments to the contrary are unaccompanied by evidentiary support.
Gate 3 Taxi-Lane TOFA
On page 12 ofits Reply, BEH contends that the "taxi-lane markings in front ofits hangar, which are not required by the FAA in that location, be removed. Ifthose markings are removed there is no TOFA."9 (Emphasis in original). This assertion is patently false, as explained at length onpages 14-15 and 17-21 ofthe Respondents' May 8, 2015 Answer and the corresponding evidentiary support is contained in Exhibits 33-34, 40-49, 104, and 105. Additionally, in the Reply, BEH's assertion-"Ifthose markings are removed there is no TOFA''--only reinforces BEH's unauthorized actions onthis matter. In November 2013, the Airport Manager notified Mr. Donovan in an email, expressing concern that BEH's ongoing construction was causing damage to the gate 3 taxi-lane. See Exhibit 134. As then-Vice Chairman ofthe Airport Commission, as well as a licensed civil engineer, I weighed in onthis damage with corrective actions I prescribed to restore the pavement, rejecting cracksealing and instead recommending sawcutting beyond the subbase failure, removal ofthe pavement, compacting the subbase, newhot mix asphalt, and finally sealing thejoint and pavement. See Exhibit 135. Exhibit 136 shows the level ofdamage that was causing concern. This damage was brought to Mr. Donovan's attention, and Mr. Donovanprovided a response. See Exhibit 137. In this response, Mr. Donovan stated: [A]ny and all pavement issues even possibly causedby any work we have done will be fully addressed and repaired with our Engineers involved as well as Mark Ryan as he understands this area.

However, well after BEH completed its construction, the gate 3 taxi-lane markings were never restored by BEH. In a September 14, 2014 email to Mr. Donovan (see Exhibit 138), the Airport Manager followed up onthis outstanding issue, underscoring to Mr. Donovan: While the weather is still warm enough, BEH should plan to restore those gate 3 taxi-lane edge markings (north of your hangar and apron) lost during your

9 BEH refers to a settlement discussion onpages 11 and 12 ofits Reply, which is inappropriate and inadmissible. BEH's "terms sheet" was so excessive in nature that it precludedthe Respondents from providing a meaningful counteroffer.

860385v1 19construction earlier this year. There were four sets of markings, with an inner distance of 20 ft. from centerline. Each set should be 15 ft. long; and the individual markings shouldbe six inches wide
See Exhibit 138.
Mr. Donovannever responded to the September 14, 2014 email, and BEH neverrestored the taxi-lane edge markings that border BEH's Lot F leasehold, as noted inthe photos contained in Exhibit 139, which were taken onJune 26, 2015. Itis the Respondents' beliefthatBEH's decision notto restore the markings is consistentwith BEH's ownresponse, that "'[i]fthose markings are removed there is no TOFA." See Reply at 12.
OnJuly 8, 2015, the Airport Commissionreminded BEHthat it still had not complied with its assurances to restore the gate 3 taxi-land edge markings to their original condition. See Exhibit 140. The Airport Commission demanded a planto restore the markings within seven (7) days and for these markings to be restored within twenty-one (21) days. See id.
From BEH's actions, statements and legal arguments, it appears to be BEH's intentto incorporate the gate 3 taxi-lane into its fueling plan due to BEH's inadequate facility planning at the time BEH insisted on constructing a large hangar on a small sub-lease lot (i.e., Lot F). In fact, the gate 3 taxi-lane, like the gate 2 taxi-lane, is a common way for all ofthe Airport's users, notjustBEH, and as noted inthe Respondents' Answer (p. 18), the gate 3 taxi-lane is also used as an emergency way for Airport fire/rescue equipment and personnel responding to an onairport emergency from the Norwood Fire Department. This designated use pre-dated BEH's 2010 advent onto the Airport. Moreover, since at least December 2012, long before BEH initiated construction, BEH was made aware that it would be required to '"comply with all taxi-lane object-free restrictions that apply to the siting ofBEH's fueling equipment[,] perthe airport's design standards, and clarifying guidance from the Federal Aviation Administration." See Exhibit 33. BEH chose to defy compliance ofthe TOFA matter, all the while claiming, onpage 15 ofits Reply, that '"the designation ofa taxi-lane in front ofBEH'shangar is arbitrary and unjustified, and is not applied to otherhangar owners in essentially identical situations onthe airport." This in fact is patently false. Onpage 14 ofits Reply, BEH further pursues its argument regarding the gate 3 taxi-lane TOFA, insisting that ''there is no FAA policy directionto have a taxilane onthat part ofthe ramp at all." In fact, the taxi-lane designation and relevant markings were a result ofthis areabeing approved for re-construction and improvement in 2007 with FAA and MassDOT Airport Improvement Program funds. Thus, the establishment ofthe gate 3 taxi-lane TOFA was a condition existing as ofapproximatelythree (3) years priorto BEH obtaining its first commercial permit from the Airport Commission. All ofthese facts were presented and supported with documentation onpages 17 to 21 ofthe Respondents' Answer. Finally, onpage 17 ofits Reply, BEH asserts that Lot F '"will be sufficient for BEH's aircraft fueling and FBO operations." Ifthis is so, why does BEH continue to fight so ardently to

20 860385vl

### have the gate 3 TOFA designation changed? The NAC believes that BEH needs the added space to fuel aircraft in what is nowthe common way for all airport**users~** 

### since-withthe construction**ofBEH~s** 

### large hangar on a relatively small lease**lot-BEH~s** 

### Lot F is land-constrained. This was a direct result of**BEH~**

### s inadequate landplanning.
Lease Offers and Opportunities


### Onpage 12 ofits Reply, BEH claims it has not rejected any NAC offers for space onthe airport ramp. This assertion is patently false. As chronicled onpages 24 through 34 ofthe**Respondents~** 

### Answer, and documented in Exhibit 57, BEH was first offered part ofthe West Apron in March 2014; BEH subsequently turned down this offer (see Exhibit 58) even after being cautioned not to do so by the Airport Commission. BEH allegation ofa "'preference for FBO FlightLevel in granting airport leases" is unsubstantiated and incorrect, in defiance ofthe evidentiary requirements in 16 C.F.R. § 16.23(g). 10


### On page 13 ofits Reply, BEH argues thatthe DC-3 Apron could have been made available for FBO use. Yet, on pages 34 through 36 ofthe**Respondents~ Answer~**  

### this was refuted at length, along with the corresponding Exhibits 76 through 78. In short, there were several companies showing an interest in the DC-3 Apron, which, to a great**extent~** 

### was why the Airport Commission chose to advertise this land for lease, and it restricted the use to aircraft parking and aircraft ground handling based on countervailing considerations for the most appropriate use based on safety, efficiency and planning concerns. BEH chose not to bid onthe DC-3 Apron, eventhough it had every opportunity to do so before the deadline for submitting proposals. Helicopter Operations


### On pages 18 and 19 ofits Reply,**BEH~s** 

### attorney implies that because ""Mr. Donovan has more than 8,000 hours ofhelicopterpilot time, including a tour in Iraq, and has a perfect safety**record~"** 

### he should be allowed to land and take-offwherever he wants onthe Airport. In fact, overthe years, there has been any number ofhelicopterpilots using the Airport whose flight hours and experience far exceed those ofMr. Donovan. These pilots have been more than willing to comply with the**Airport~s** 

### helicopter flight procedures. These are procedures Mr. Donovan had complied with-as a pilot for both Wiggins Airways and Helicopters, Inc.-prior to Mr. Donovan becoming the president and chiefpilot ofBEH. On page 19 ofits Reply, BEH argues thatthe helicopter rules changes proposed by the NAC in 2010 ""were not made at the time BEH began its Part 135 operation in summer 2010, but rather almost immediately after BEH made its initial request for FBO status in October 2010.**~~ BEH~** 

### spositionhere is nothing more than unjustified and egregious suspicion.

10 

### While the April 9, 2014 meeting minutes were prepared using the audio recording, that recording was inadvertently destroyed by the former NAC Secretary after draft minutes were typed--dueto human**error~** 

### not impropermotive.

860385v1 

### 21In 2010, soon after BEH received its first commercial permit, BEHbegan helicopter operations offFlightLevel's north ramp. Blue Hill Helicopters, a busy flight school and commercial permitholder also based at the Airport, similarlybeganto operate from FlightLevel's north ramp, after ceasing its operations on the Airport's south quadrant, onthe helipads located on the south end ofthe north/south taxi-lane. With both BEH and Blue Hill Helicopters now operating offthe north ramp, FlightLevel began to experience an exponentiallyhighernumber ofhelicopters. This ramp was furthermore being shared by corporatejets and maintenance aircraft. Itwas evident thatthis was approaching too much activity for one (1) relatively small ramp. Compounding this, Airport management was becoming concerned about the mixing offixed wing and rotary-winged aircraft. Itwas also clearthat helicoptertraffic from the Airport's based operators was creating the need to assess whetherhelipads similarto those already constructed onthe south end ofthe north/south taxilane should also be constructed on the north end ofthe north/southtaxi-lane. As stated inthe Respondents' Answer (Exhibit 18), in a January 7, 2011 email to FAA's Donna Witte: [T]he one and only intent ofourproposedprocedures, which is to incorporate into ourregulations a helicopter operating areathat-as ofright now---is only provisionally ok'd for helo operations. See Exhibit 18. Onpage 21 ofits Reply, BEH asserts that "theNAC Commissioners subsequently voted to limit helicopter operations exclusively to the helipads altogether, with no basis in operating safety or incident experience." This is false, as evidenced bypages 7 through 10 ofthe Respondent's Answer and accompanying Exhibit 21a.
BEH also states: "BEHhas real issues withthe helipads and with changes in airport operating rules in recent years that have not been beneficial for a helicopter operation from Lot F." See Reply at 21. This statement makes clearthat BEH's aim is to operate its helicopters from Lot F, adjacent to the gate 3 taxi-lane, and to achieve this objective by discrediting any infrastructure changes (e.g., construction offour (4) helipads onthe north quadrant, to support BEH and Blue Hill Helicopters), along with the efforts and costs borne bythe Airport Commission, MassDOT, and the FAAto accommodate the Airport's north quadrant helicopter operators. In fact, for the size ofits non-movement area, the Airport has, arguably, the most helicopter operating areas ofany airport its size in the NewEngland region.
Characterization of Christopher Donovan Page 2 ofBEH's Reply notes "anumber ofnegative and derogatory statements about BEH and about BEH President Christopher Donovan in particular." However, an airport sponsor may consider financial and/or litigation risk in dealing with airport users, and it can consider a history ofproblems with an airport user. See Jack H. Cox v. City ofDallas, TX, FAA Docket No. 16-97-2 (Record ofDetermination, October 24, 1997); Seasands Air Transport, Inc. v. Huntsville-Madison County Airport Authority, FAA Docket 16-05-17 (Director's Determination, August 28, 2006); Flightline Aviation, Inc. v. City ofShreveport, FAA Docket No. 16-07-05

22 860385v1

### (Director's Determination, March 7, 2008); Jacquelin R. Ashton and Kent Ashton v. City of Concord, NC, FAA DocketNo. 16-02-01 (Director's Determination, August 22, 2003; Final Agency Decision, February 27, 2004). In Seasands Air Transport, the FAA observed as follows:
An airport sponsor acts as a proprietor with regard to managing its airport to certain reasonable levels ofservice, personal decorum, business professionalism and financial responsibility; in addition to safety, security and efficiency. It 

### chooses with whom it does business and what parties gain access to the secure areas ofits airport and under whichterms. . . . A sponsor may apply reasonable standards ofsecurity and personal behavior, and reasonable rules oftenancy. The Authority's Federal obligations, including grant assurance 22[,] do not require it to continue a business relationship with any corporationthat fails to exercise management controls or sufficient corporate governance to prevent and correcthighly unprofessional behaviorby its principals oremployees.
FAA Docket 16-05-17 (Director's Determination, August 28, 2006).
Mr. Donovan has beenthe key arbiter ofthe controversy createdby BEH. In fact, it is documented throughout the Respondents' Answer that Mr. Donovan seems to compulsively challenge existing conditions and procedures at the Airport. With BEH, and priorto that, with Helicopters, Inc., Mr. Donovan's activities have been at the center ofNorwood Police reports (Exhibits 1and Exhibit 85), legal action (see Exhibit 2), and even warnings by FAA (see Exhibit 27). Mr. Donovanhas furthermore tried to make false and meritless accusations of discrimination against the Airport Commission (see Exhibit 19).
Mr. Donovanhas attempted to unfairly and unnecessarily involve the FAA through the Part 13 and 16 complaintprocesses (see Exhibit 16), and turning to the local mediato present false claims that his company is being treated unfairly by the Airport Commission (see Exhibit 1

00). Mr. Donovan has further created much ofthe litigious climate and controversy that now marks the Respondents' relationship with BEH. In fact, to date, the Respondents are waiting on the outcome ofa public hearing involving charges filed against Mr. Donovan and fellow BEH employee, Robert Silva, which involved the irresponsible dumping ofpollutants onthe airport's federally protected land (see Exhibits 83, 85,and 102). Thus, the NAC's characterization ofMr. Donovan is well founded, well documented, relevant, necessary to place BEH's allegations in full context, and consistent with applicable FAA guidance for an airport sponsorto considerthe actions ofprincipals and employees ofairport businesses.
In describing BEH's owner, Moshe Yanai ("Mr. Yanai"), onpage 9 ofits Reply, BEH states: ''Mr. Yanai is apilot and aircraft owner, who has maintained aircraft and operated at Norwood Airport for two decades." However, contrary to the image that BEH attempts to project, BEH's owner, Mr. Yanai is only an unknown figure on the Norwood Airport. This has beenthe case for many years. In fact, Mr. Yanai has never attended an Airport Commissionmeeting. Nor at any time has Mr. Yanai ever communicated with, or dealt with, the Airport Commission--eitherin person

23 860385vlor in writing. Airport management, which has a full-time presence onthe Norwood Airport, has only seen Mr. Yanai once in the past several years, and this included no direct communication. Significantly, Mr. Yanai's access control security badge expired onJune 4, 2012, overthree (3) years ago, and Mr. Yanai has not since expressed an interest, either directly or indirectly, to be processed for a newbadge. Because Mr. Yanai has not had an active presence onthe Norwood Airport for many years, the Airport Commissionhas had no choice but to deal with Mr. Donovan in his stead.
CONCLUSION Regardless ofthe industry, businesses-byway oftheir personnel-arejudged favorably or otherwise, by how they behave, not only to their own customers but to their overseers. This business tenet alone forms the basis ofNAC's assessment: that BEH, a company projected solely through the temperament and actions ofits president, Mr. Donovan, is the antithesis ofa model tenant. The NAC's conclusion is evidenced by no less than BEH'sturbulent five (5) year history at the Airport. In that time, BEH has repeatedly and willfully defied not only the NAC but also the conventions ofsound business practice, responsibility, and goodwill. This, in turn, has undermined the Airport Commission's confidence that BEH, even as an FBO, will right itself.
Mr. Donovan, as the one and only accountable force behind BEH, has made clear on countless occasions the litigious and adversarial impulse ofhis company. In seeking an FBO commercial permit, BEH has employed these legal means against the Airport Commission and Airport management. Additionally, in adversarial fashion, BEH has used legal means to defy airport rules, regulations, and procedures (e.g., those pertaining helicopter operations). Ironically, as stated in the Respondents' Answer (p. 43), Mr. Donovan'spattern ofbehavior is to claim discrimination, all the while seeking treatment separate from, and more favorable to, the requirements equally applicable to other Airport businesses and pilots. Still, the Airport Commission remains willing to entertain and consider BEH's FBO commercial permit application. The Airport Commission has not only advocated for BEH, but it has granted BEH numerous extensions-includingfor submitting a business plan, for its Fiscal Year 2014 and 2015 commercial permits, and for providing requested financial information. To date, BEH simply has notprovided the requested financial information, evidence ofspill coverage, orrevised fueling plan, all ofwhich are necessary for the Airport Commissionto issue a decision on BEH's commercial permit application.
For the Airport Commission, BEH's litigious posture has amounted to many man-hours dedicated to defending the NAC'sposition. These are man-hours that could have beenmore fruitfully dedicated to advancing the Norwood Airport. Accordingly, injudging BEH's performance thus far, which must be weighed alongside its unyielding, litigious orientation, the NAC feels well positioned in its unfavorable evaluation ofthis business. In this Rebuttal, the Norwood Airport Commission stands firm on all other points previously articulated in the Respondent's May 8, 2015 Answer, which are appropriately supported with accompanying documentation.

24 860385vlIn closing, we respectfully request that the FAA determine BEH's Part 16 Complaint to be unfounded and: (1) dismiss the Complaint; (2) decline to investigate the Complaint; (3) determine that the Respondents have complied with the FAA's Grant Assurances; and (4) take no further action.

## ~----------- Mark P. Ryan, Chairm Norwood Airport Commission



### cc: Timothy I McCulloch, Esquire; NorwoodAirport Commission; Norwood General Manager; Norwood Town Counsel; Massachusetts Department ofTransportationAeronauticsDivision

860385v1 25CERTIFICATE OF SERVICE I, BrandonH. Moss, counsel to the Respondents, Town ofNorwood and Norwood Airport Commission inBostonExecutive Helicopters, LLC v. Town ofNorwood, Massachusetts and NorwoodAirport Commission, FAA Docket No. 16-15-05, hereby certifies that onthis

### ,~:::5 day ofJuly 2015, a copy ofthe foregoing document was served via overnight mail and email as follows: Complainant, BostonExecutive Helicopters, LLC (one copy): Timothy I. McCulloch, Esquire Hinshaw & Culbertson LLP 2375 East CamelbackRoad, Suite 750 Phoenix, AZ 85016 TMcCulloch@hinshawlaw.com

FAAPart 16 Airport Proceedings Docket (original and three (3) copies):
Office ofthe ChiefCounsel Attention: FAAPart 16 Airport Docket Clerk AGC-600 Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 9-AWA-AGC-Part-16@faa.gov

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26APPENDIX A INDEX OF EXHIBITS TO RESPONDENTS' REBUTTAL (Part 16 Complaint: Boston Executive Helicopters v. Town ofNorwood, Massachusetts and Norwood Airport Commission; Docket No. 16-15-05) Exhibit 106 Email from Norwood Fire ChiefAnthony Greeley to Russ Maguire, dated February 12, 2014 Exhibit 107 May 19, 2015 Norwood Board ofSelectmen Meeting Minutes Exhibit 108
Letter from Mark Ryan to Christopher Donovan, dated May 26, 2015 Exhibit 109
Printouts from Boston Executive Helicopters, LLC Website, dated July 2, 2015 Exhibit 110
Boston Executive Helicopters, LLC Financial Submission, dated April2014 Exhibit Ill
Letter from Attorney Timothy I. McCulloch to Attorney Brandon H. Moss, dated March 12, 2015 Exhibit 112
Letter from Attorney Timothy I. McCulloch to Attorney Brandon H. Moss, dated March 27, 2015 Exhibit 113 April 15, 2015 Norwood Airport Commission Meeting Minutes Exhibit 114 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated May 12, 2015 Exhibit 115 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated May 13, 2015Exhibit 116 May 13, 2015 Norwood Airport Commission Meeting Minutes Exhibit 117
Letter from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 3, 2015
Exhibit 118
Email from Attorney Timothy I. McCullochto Attorney Brandon H. Moss, dated June 4, 2015
Exhibit 119
Email from Attorney Timothy I. McCullochto Attorney Brandon H. Moss, dated June 11, 2015
Exhibit 120 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 12, 2015
Exhibit 121 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 15,2015
Exhibit 122 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 18, 2015
Exhibit 123 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 22, 2015
Exhibit 124 Edits to Aviation Management Consulting Group Engagement LetterbyAttorney Timothy I. McCulloch Exhibit 125 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 24, 2015
Exhibit 126
Letter from Attorney Timothy I. McCullochto Attorney Brandon H. Moss, dated June 25, 2015

11Exhibit 127 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated July 8, 2015
Exhibit 128
June 10,2015 Norwood Airport Commission Meeting Minutes
Exhibit 129
Letter from Attorney Timothy I. McCulloch to Attorney Brandon H. Moss, dated June 17, 2015 Exhibit 130 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 22, 2015
Exhibit 131 Email from Attorney Timothy I. McCulloch to Attorney Brandon H. Moss, dated June 23, 2015
Exhibit 132
Letter from FlightLevel Aviation to Norwood Board ofSelectmen and Norwood Airport Commission, dated June 8, 2015 Exhibit 133 Email from Attorney Brandon H. Moss to Attorney Timothy I. McCulloch, dated June 25, 2015
Exhibit 134 Email from Russ Maguire to Christopher Donovan, dated November 8, 20 13
Exhibit 135 Email from Mark Ryan to Norwood Airport Commission and Christopher Donovan, dated November 8, 2013 Exhibit 136 Photograph ofGate 3 Taxi-Lane Damage Exhibit 137 Email from Christopher Donovanto Norwood Airport Commission, dated November 10,2013

111Exhibit 138 Email from Russ Maguire to ChristopherDonovan, dated September 14, 2014
Exhibit 139 Taxi-Lane Photographs
Exhibit 140
Letter from Mark Ryan to Christopher Donovan, dated July 8, 2015
Exhibit 141 August 13, 2014 Norwood Airport Commission Meeting Minutes

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IV