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This petition is regarding the storage and staging of construction equipment and materials at
709 109th Ave. N. Naples, FL 34108 for usage of repairing the water and sewer systems on
streets/avenues in Naples Park.
The activities on this site, which include but are not limited to, heavy equipment operations,
concrete demolitions, etc. are resulting in unacceptable levels of noise, vibrations, and actual
physical damage to adjacent properties - fencing and cracks in walls. Additionally, home
businesses and rental properties in the immediate and surrounding area are experiencing
tangible and appreciable revenue losses due to the extremely noisy and disruptive operations
taking place on the aforementioned site, which are ongoing from 7:00 a.m., six days a week.
This significant loss of revenue from the cancellation of bookings and/or refunds that were
provided is a direct result of the constant noise and industrial activity taking place on this site.
Homeowners are justifiably concerned that the ongoing effects of this activity in this staging
area will decrease property values and make resale very difficult.
Several neighbors have reported experiencing extreme stress, anxiety and life disruption, as
well as loss of rest for those working night shifts and attempt sleep during the daylight hours.
Some neighbors work out of their home, and the constant noise, vibrations, and disruption
during their work day from materials being loaded and dumped has had a significant negative
impact on their performance and ability to concentrate, making it extremely difficult for them to
do their job.
Below are the signatures of homeowners/neighbors that petition the activity in this staging site.
It is our understanding that the contract between owners Don and Lana Cahill and the
construction company DN Higgins is being executed on a month to month basis. As such, The
Naples Park Neighbors strongly request that the aforementioned Staging Site be relocated to
give us relief from the extreme noise and disruption of the Staging Site activity.
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LEASE AGREEMENT
This agreement, entered into this 2nd day of March,2021, between, Donald &
Lana Cahill hereinafter called the Lessor, and Douglas N. Higgins, inc.,
located at 3390 Travis Pointe Road, Suite A, Ann Arbor, Michigan 48108,
hereinafter called the Lessee.
Witnesseth, that in consideration of the covenants herein contained, on the
part of the said Lessee to be kept and performed, the said Lessor does hereby
demise and lease to the said Lessee that certain vacant property:
Located at 713 109`1'Ave N. Strap No.:509200 15 223A28, Sec. 28,
Township 48, Range 25.
To hold the said premises hereby to the 15th day of March, 2021, and
thereafter demise unto the said Lessee from the 15th day of March, 2021,
and continuing as a minimum through the 15th of March 2022, and on a
month to month basis thereafter at the rate of$15.00 per day. Said Lessee
paying therefore the rents as follows:
$1,000 due upon execution of this lease, representing the first fill month's
rent at $500.00 per month and $500.00 by way of a security deposit to be
returned to Lessee upon the earlier of the expiration or termination of this
agreement, provided that, (a) the premises are returned in good and tenable
condition and (b) all rents due Lessor by Lessee herein are paid and current.
After 1st of March 2022, rent of$500.00 per month is due on or before the 1`'
of each month for as long as both parties agree. Rents paid shall include all
taxes.
A. The Lessor covenants with the Lessee that the Lessee paying the rent
when due as aforesaid, shall peaceably use, occupy and possess the said
premises for the full term of this lease without let, hindrance, eviction,
molestation, or interruption whatever, except as provided below, and the
said Lessee covenants with the Lessor:
1. To pay rent at the time it is due.
2. To pay all electric, mowing and upkeep charges which may be
assessed upon the demised premises during the term hereof.
3. Not to suffer or commit any waste of the premises, nor make any
unlawful, improper or offensive use of same.
4. Not to assign this lease or underlet the said premises or any part
thereof without the consent of the said Lessor being first obtained
in writing.
5. That this lease shall terminate when the Lessee vacates the said
premises, providing all payments have been made hereunder or a
sub-lease agreement has been executed.
6. At the termination of said tenancy to quietly yield up the said
grounds in as good and tenable condition in all respects as the
same now are.
7. Lessee shall provide Lessor with an insurance certificate showing
general liability, worker's compensation and a minimum of
$2,000,000.00 of pollution insurance currently in force with a ten
day cancellation clause.
8. Lessee shall not store any hazardous material (excepting diesel
fuel) or use anything but certified Florida soil(per existing code)
as fill.
9. Douglas N. Higgins, Inc. accepts full liability for any incident
taking place on the lot during the duration of the agreed
contracted dates and until they have completed all agreed work
and completely and permanently vacated said lot, provided, the
subject incident arises from the acts of the employees and agents
of Douglas N. Higgins, Inc. while occupying the lot during the
term of this lease.
10. Douglas N. Higgins, Inc.'hells-Melinda H. ng harmless from
any and all liability incurred and arising from the occupation of
the lot by Douglas N. Higgins, Inc. and/or its employees during
the contract term and up until all work is completed and Douglas
N. Higgins, Inc. has completely and permanently vacated the lot.
11. Douglas N. Higgins, Inc. accepts full responsibility for any
damage to the lot during the complete duration of the agreed
contracted dates, provided that, any and all damage caused is the
result of an act or acts by Douglas N. Higgins, Inc., its employees
and agents. Douglas N. Higgins, Inc. agrees that it shall remain
responsible for the acts of itself, its employees and agents until
Douglas N. Higgins, Inc. shall have completed all agreed work
and completely and permanently vacated such lot. Douglas N.
Higgins, Inc. agrees to repair any and all damages incurred as a
result of the acts of Douglas N. Higgins, Inc., its employees and
agents. Complete and permanent vacancy of the lot by Douglas
N. Higgins, Inc. shall not have occurred until such time when
repair work is completed and properly inspected.
12. In the event that Douglas N. Higgins, Inc. has not permanently
and completely vacated the lot by December 22nd, 2017, Douglas
N. Higgins, Inc. agrees to pay Lessor$16.67 per day on a day-to-
day basis for that portion of any week that the property is used for
less than one month until such time as they have completely
vacated. Douglas N. Higgins, Inc. agrees to notify Lessor by
email when the lessee has vacated the lot,
B. Lessee further covenants with the Lessor that the Lessor shall:
I. Give the Lessee 14 days written notice of termination should
Lessor decide to terminate this agreement.
2. Allow the property to be used for the storage of business
equipment and construction materials by the Lessee during the
duration of this contract.
C. Provided always that if the rent hereby reserved, or any part thereof,
shall be in arrears, or in event of any breach of any of the covenants and
agreements on the part of the Lessee herein contained, the Lessor may
at his option declare the entire rent for the term for which said premises
are leased, due and payable and/or retain the security deposit as
liquidated damages, and/or may declare this lease terminated and re-
enter upon the said demised premises.
1. In addition, Lessee agrees to protect, defend,hold and save
harmless Lessor from any and all claims,actions, lawsuits and
demands of any kind arising out of the Lessee's use of the
property during the period of this lease.
2. Ordinances and Statutes. Lessee shall comply with all statutes,
ordinances and requirements of all municipal, state and federal
authorities now in force or which may hereafter be in force,
pertaining to the premises, occasioned by or affecting the use
thereof by Lessee.
3. Entry and Inspection. Lessee shall permit Lessor or Lessor's
agents to enter upon the premises at reasonable times for the
purpose of inspecting the same, and will permit Lessor at any time
to place upon the premises any usual 'To Let", "For Sale" or"For
Lease" signs, and permit persons desiring to lease the same to
inspect the premises.
4. Heirs, Assigns, Successors. This lease is binding upon and inures
to the benefit of the heirs, assigns and successors in interest to the
parties.
5. Attorneys' Fees. Should it become necessary for Lessor to
employ an attorney to enforce any of the conditions or covenants
hereof, including but not limited to the collection of rents or
gaining possession of the premises, Lessee agrees to pay all
expenses so incurred, including court costs and reasonable
attorneys' fees.
6. Waiver. The failure of Lessor to insist upon the strict
performance of any one or more of the obligations under this
agreement in any one or more instances shall not be construed as a
waiver or relinquishment for the performance of such or any other
obligations.
7. Governing Law and Jurisdiction. This agreement shall be
governed, construed and interpreted by, through and under the
laws of the State of Florida and the parties agree that any matters
or claims arising out of this agreement shall be subject to the
exclusive jurisdiction of the State and Federal Courts located
within the State of Florida.
8. Entire Agreement. The foregoing constitutes the entire agreement
between the parties and may be modified only by a writing signed
by both parties. The following Exhibits, if any, have been made a
part of this lease before the parties' execution hereof: Exhibit A.
Witness our hands and seals this 2nd day of March,2021
Signed, sealed and delivered
In the presence of:
Cy4!4 .UUo•-.
Witness (print name below) Donald Cahill
5 A UAH 1 t.L_- Land owner
Douglas N. Higgins, Inc. �!
Witness (print name below) Authorized signer
ALL CHECKS SHALL BE PAYABLE TO AND SENT TO:
Donald Cahill
700 110"' Ave. N
Naples, Florida 34108
Ih01 Gmail
Fwd: Follow Up
Gareth Rockliffe <garethrockliffe@me.com> Fri, May 6, 2022 at 10:55 AM
To: Nancy Lewis <nancyl.naples@gmail.com>
Hi Nancy. This was my first follow up email to Angela that resulted in a formal complain on the 311 App.
Gareth
Begin forwarded message:
From: Gareth Rockliffe <garethrockliffe@icloud.com>
Subject: Follow Up
Date: March 9, 2022 at 9:20:43 AM EST
To: "Angela.Goodner@colliercountyfl.gov° <Angela.Goodner@CollierCountyFL.Gov>
Hi Angela.
Thank you for speaking with me on Monday regarding the staging area on 109th Ave N. I did contact Eric
Short, however I'm still waiting for a call back.
I'm attaching a few images for your attention so you can see I'm not exaggerating the dire situation. The very
fact that every other building site in Naples has a five foot privacy fence and 109th does NOT, shows the lack of
effort by both the contractor and the City and a complete lack of respect they have for the homeowners quality
of life.
Our group will soon be finishing a video that shows in full extent of the hell we've all been living though for the
past ten months. This situation is not acceptable for the homeowners all of whome are impacted both
financially and personally by this activity which is now planned to continue through 2024.
Nancy Lewis
Subject: Re: 709 109th Ave N. Code Violation
Date: Friday, April 29, 2022 at 10:06:54 AM Eastern Daylight Time
From: Gareth Rockliffe
To: Nancy Lewis
Attachments: image001.jpg, 21-7823 Specifications.pdf
Thanks Nancy...you rock!
Sent from my iPhone
On Apr 29, 2022, at 8:41 AM, Nancy Lewis <nancyl.naples@gmail.com> wrote:
Gareth,
Per below... keeping you in the loop. Will advise as soon as I hear anything
more.
Warm regards,
Nancy Lewis
Nancy Lewis, Candidate for Collier County Commission District 2
NancyListens@nancylewislistens.com
nancylewislistens.com
Follow us on Facebook: NLdistrict2
From: Nancy Lewis <nancyl.naples@gmail.com>
Date: Friday, April 29, 2022 at 8:32 AM
To: <James.French@colliercountyfl.gov>
Cc: <George.Yilmaz@colliercountyfl.gov>, <Mark.lsackson@colliercountyfl.gov>,
<Michael.Ossorio@colliercountyfl.gov>
Subject: 709 109th Ave N. Code Violation
Jamie,
Thank you for returning my call to continue Tuesday's conversation
regarding the code violation complaint on 709 109th Ave N., Naples Park.
To reiterate our conversation, I understand that you were notified by Eric
Short and Mike Ossorio about the complaint, are in receipt of the video and
acknowledge that you directed them not to pursue the investigation,
however, leave it 'open'. It is also my understanding that you shared the
video with the county manager and were advised that he would be seeking
advice from the county legal staff and that you, as department head, could
do no more.
Also, in our conversation, I affirmed that I sent the video email to George
Yilmaz, administrator of the Public Utilities Division responsible for the PUR
project.
As a follow up to that conversation, I pulled the contract and have provided
it for your convenience. Mr. Higgins is being paid to remove the old pipes
and dispose, not break them up on site. As per the contract, "Payment of
removing and disposing asbestos concrete pipe will be made at the
appropriate contract unit price per linear foot in accordance with Collier
County Standard and as specified herein. Payment shall include all testing,
including air monitoring. Each individual section (20' max) of asbestos
concrete water main removed shall be individually wrapped and marked for
disposal prior to being placed in a lined dump truck for transport to the
landfill. One copy of the waste manifest from the disposal site shall be
provided to Collier County within 48 hours of receipt. The Collier County
landfill will not accept loads after 3pm (Monday through Friday) or on
Saturday, Sunday, or Collier County recognized holidays."
I am, again, reaching out on behalf 30+ Naples Park residents who
contacted me to request help in the resolve of this issue after numerous
attempts on their part have fallen on deaf ears.
(video: hops://www.youtube.com/watch?v=xwwt-5175ss).
Transporting industrial/demolition debris to a privately owned residential
lot and breaking it down before transporting it off-site is a violation of
development code and Mr. Higgin's contract. Collier County Code
Enforcement, as entrusted with enforcement of the developments laws,
needs to red-tag and rectify this ASAP, in order to restore the integrity of
this community and avoid additional exposure.
In the interim, I have asked the residents involved to refrain from taking this
matter to the media in hopes that you will take immediate action to
remedy.
Thank you,
Nancy Lewis
Nancy Lewis, Candidate for Collier County Commission District 2
NancyListens@nancylewislistens.com
nancylewislistens.com
Follow us on Facebook: NLdistrict2
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239-877-4141
www.garethrockliffe.com
www.soderquistphoto.com
Gareth Rockliffe
garethrockliffe@mac.com
www.garethrockliffe.com
GMD Public Portal
Complaint Status
CELU20220002031
Date: 2/25/2022
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complaint Info oration
Case Number: CELU20220002031
Status: Closed
Complaint Type: Land Use
Description: Caller states lots are being used by a construction company as a
staging area for asphalt, cement, gravel, sand soil...etc as well as
heavy machinery on site. Caller says this activity should not be
alowed as it is a residential (RMF6) area. She states 8-10 nearby
homes are being affected by the activiy. The owner is aware of
the concerns but still plans to renew their lease when it comes up
in March.
Locality of Complaint: 709 109th Ave N -- Double lot
713 109th Ave N
Property Owner's Full Name: CAHILL, DONALD B&LANA L
- Locations-
Locations: Property
62426840002
Address
709 109th AVE N, Naples, Vacant Land
- Inspections
There are no inspections for this complaint.
GMD Public Portal •
Complaint Status
CECV20220003645
Date: 4/12/2022
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Com,pl in1 Tnfor •�+n
Case Number: CECV20220003645
Status: Investigation
Complaint Type: Code Violation
Description:
Locality of Complaint: 709 109TH AVE N
NAPLES, FL 34108
P# 62426840002
Property Owner's Full Name: CAHILL, DONALD B&LANA L
- Locations
Locations: Property
62426840002
Address
709 109th AVE N, Naples, Vacant Land
- Inspections
There are no inspections for this complaint.
eLaws eCases I Florida State I Florida Administrative Code I Florida Courts ( Counties & Cities of Florida I Code of Federal
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m Collier County
Land Development Code
Chapter 5. SUPPLEMENTAL STANDARDS
Appendix 5.04.00. TEMPORARY USES AND STRUCTURES
§ 5.o4.oi. Temporary Use Permits
Latest version.
A. Purpose and intent. Based upon the nature of some uses, their impact on adjacent
uses, their compatibility with surrounding properties, and the length of time a use is
intended to function, there is an identified need to allow certain temporary uses
within a development sitend to provide for other types of temporary uses such as
special events, sales and promotionslt is the intent of this section to classify
temporary uses and to provide for their permitting.
B. General. The County Manager or designee may grant a temporary use permit for
requests that demonstrate compliance with the intent of this section and Chapter 5
of the LDC. Approvals for such requests shall be based upon, but not limited to, the
applicant's description of the temporary use, the intended duration of the use, hours
of operation and the impacts of the proposed temporary use on adjacent properties.
C. Indemnification. The applicant shall be required to indemnify and hold harmless
Collier County, its officers, agents and employees from and against all claims, suits,
actions, damages, liabilities, expenditures or causes of action arising out of or
occurring during the activities of applicant under a permit issued hereupon in the
form and manner provided by the County Manager or designee.
D. Cancellations and postponements.
1. If a permitted event is canceled or postponed, the applicant shall furnish Collier
County with written notification of such cancellation or postponement and the
reason(s) for same. It is understood that weather conditions may cause last
minute cancellations; however, the applicant shall make every effort to notify the
county staff prior to the scheduled commencement of said event. If the event is
to be re-scheduled, notice of the date and time of the rescheduled event shall
be provided.
2. If a permitted event is postponed, the permit will be amended to reflect the
rescheduled event dates and a copy will be provided to the applicant prior to the
eves n.
3. If an event is cancelled and the County is notified prior to the initially proposed
commencement date the number of days used will not count towards the
maximum number of authorized days afforded for events by the LDC.
E. Suspension or revocation. Failure to comply with the terms and conditions of the
temporary use permit, once issued, shall be grounds for immediate suspension of
the permitted activity until such time as the noncompliance is remedied. A permit
may be revoked, without refund, for established public safety and welfare issues.
The suspension or revocation shall be initially communicated verbally, followed by a
written suspension or revocation order. The continued failure to comply with the
terms and conditions of a previously suspended permit may result in the revocation
of said permit.
F. Violations. The failure to obtain a required Temporary Use Permit, and/or the failure
to cease activities authorized by such a temporary use permit, including the removal
of any displays, structures , merchandise, equipment, signs or banners authorized
by said permit, upon expiration, suspension, or revocation shall establish a violation
of the LDC and shall be subject to the penalties established within the LDC.
(Ord. No. 10-23, § 3.DD; Ord. No. 13-56, § 3.0)
0
9J, erçunty
COLLIER COUNTY GOVERNMENT 2800 NORTH HORSESHOE DRIVE
GROWTH MANAGEMENT DIVISION NAPLES, FLORIDA 34104
www.colliergov.net (239)252-2400 FAX:(239)252-6358
Duration of Use: (O' l e2J (/P-/ -073 Hours of Operation:
Provide a description of the proposed use and the impact of the propo e.d use on adjacent
properties. Zrt,p,2,-+Cy S /47,e
SUBMITTAL REQUIREMENTS
See Chapter 4 J.7 of the Administrative Code for submittal requirements. The following items must be
submitted with the completed application packet;
El Completed Application (download current form from County website)
❑ Proposed temporary structures require the submittal of a conceptual site plan (see Chapter 4 1.1 of
the Administrative Code)
Fee Requirements:
fl Construction and Development TU Fee:$125.00
❑ Extension or Renewal:$100.00
All checks payable to:Board of County Commissioners
The completed application,all required submittal materials and the permit fee shall be submitted to:
Growth Management Division/Planning and Regulation
ATTN:Business Center
2800 North Horseshoe Drive
Naples,FL 34104
By acceptance of this permit, the applicant agrees to defend, hold harmless and indemnify Collier
County nd i agents from any and all liability which may arise as a result of the issuance of this
perm'
Applicant/Agent Date
Approval:
Fire Code Offi I Dote
f pia — Ird- 02- /
Planne Date
This permit does not constitute approvals which may also be necessary under other local, state and federal
regulations, including, but not limited to right-of-way permit, building permit, FAA, FCC, fire district, & DEP.
This TU permit is issued pursuant to information provided by the applicant.
5/12/2014 Page 2 of 2
Collier County
COLLIER COUNTY GOVERNMENT 2800 NORTH HORSESHOE DRIVE
GROWTH MANAGEMENT DEPARTMENT NAPLES, FLORIDA 34104
www.colliergov.net Ph:(239)252-2400 FAX: (239)252-6358
TEMPORARY USE PERMIT-CONSTRUCTION & DEVELOPMENT
LDC sections 5.04.01, 5.04.03 & 10.02.06 F
Chapter 4 1.7 of the Administrative Code
PERMIT NUMBER TU: t)/,J(L I C.C( 0.
El Offices for Construction/Administration
Other Use Authorized by LDC Sec. 5.04.03
Extension / /�
Permit valid from: 4., / I / ' f't 1'/ / / Jr_
This permit is valid for 24 months and may be renewed annually based upon demonstration of need and
payment of a fee. A request for renewal shall be submitted to the County in writing 30 days prior to the
expiration of the temporary use permit.
THIS PERMIT SHALL BE DISPLAYED ON SITE
During the construction of development for which at least a preliminary development order has been
granted, the developer may request a temporary use permit to authorize the location and use of a trailer for
administrative functions directly associated with the actual processes of construction. If utilities connections
(electricity, plumbing) are required, the Building Review and Permitting Department must be contacted. For
holding tanks contact the Health Department.
APPLICANT CONTACT INFORMATION
Applicant: )ni..1/45 4/. /71* _ ;C
Address: L/V z� ��`�<�i/Se/�! City: /l/Qp/f5 State:�L , ZIP:i�"(J'/
Telephone:29/-774f- 3(30 Cell:2 '91 3-46 / a Fax:
E-Mail Address:ATIA00 f/ Sr /4 I)A/74,,,ts . Co.",
Owner: ?i2d,/J azit / /
Address: 7cao do✓ti j1' ' /r� City: N4I4S State: CL• ZIP: y/Qq
Telephone: Cell: Fax:
E-Mail Address:
PROPERTYD INFORMATION
Development/Subdivision: /(/COGS _('g
SDP#: So9.2Un -/5-a7.23 An Developer: /
Address of Subject Site: 7/3 4./7 A 6 AL 5 (2 • _1(1D4d7
5/12/2014 Page 1 of 2
Coder County
Growth Management Department
COLLIER COUNTY TEMPORARY USE PERMIT
CONSTRUCTION & DEVELOPMENT
PERMIT NO. TU - PL20210001343
During the construction of any development for which at least a preliminary development order has been granted, the
developer may request a temporary use permit to authorize the location and use of a trailer for administrative
functions directly associated with the actual processes of construction. If utilities connections (electricity. plumbing)
are required. the Building Review and Permitting Department must be contacted. For holding tanks contact the
Health Department.
Other Use Authorized by LDC Sec. 5.04.03(I)
EFFECTIVE DATES:
Permit valid from 6-1-2021 to 6-1-2022
• (Twenty-four(24)month maximum. Requests for renewal must be submitted to the Planning Services Director
prior to expiration.)
PROPERTY LOCATION
Description: 713 109th AVE N
Douglas N Higgins Inc
*"Staging Area*'
Address of Site: 700 110TH AVE N
Zoning RMF-6 SDP
APPLICANT INFORMATION
Douglas N. Higgins, Inc.
4485 Enterprise Avenue
Naples, FL 34104
Telephone: (239) 774-3130
OWNER INFORMATION
CAHILL, DONALD B& LANA L
700 110TH AVE N
NAPLES, FL 34108
By acceptance of this permit, the applicant agrees to defend, hold harmless and indemnify Collier County
and its agents from any and all liability which may arise as a result of the issuance of this permit. This
permit does note constitute approvals which may also be necessary under other local, state and federal
regulations, including, but not limited to right-of-way permit, building permit, FAA, FCC, fire district, & DEP.
This TU permit is issued pursuant to information provided by the applicant.
Reviewed By:
Maria Estrada, Planner
Date: June 03, 2021
THIS PERMIT SHALL BE DISPLAYED ON SITE
Co per County
Public Utilities
108" Avenue North and 109' Avenue North
Public Utilities Renewal
Prepared By:
isi Grady Minor
3800 Via Del Rey
Bonita Springs, FL 34134
September 2020
B. Payment for temporary water main connections will be made at the appropriate contract
unit price per each temporary connection installed and accepted which price and
payment shall be full compensation to furnish and install pipe, temporary jumpers,
temporary meters, valves, fittings, joint restraints, existing utility protection,
bacteriological sampling, abandonment once clearance is obtained, restoration, and all
other work for a complete installation.
2.12 Removal and Disposal of Asbestos Concrete Water Main
A. Measurement for removal and disposal of the existing asbestos concrete water main
will be based on the laying length of the pipe in linear feet actually removed and
disposed of as measured along the centerline of the pipe, including length of fittings
and specials measured along the centerlines,between the limits shown on the Drawings
and restraint of pipe as required by contract documents.
B. Payment of removing and disposing asbestos concrete pipe will be made at the
appropriate contract unit price per linear foot in accordance with Collier County
Standard and as specified herein. Payment shall include all testing, including air
monitoring. Each individual section (20' max) of asbestos concrete water main
removed shall be individually wrapped and marked for disposal prior to being placed
in a lined dump truck for transport to the landfill. One copy of the waste manifest from
the disposal site shall be provided to Collier County within 48 hours of receipt. The
Collier County landfill will not accept loads after 3pm (Monday through Friday) or on
Saturday, Sunday, or Collier County recognized holidays.
2.13 Allowance
A. An allowance is established to cover unanticipated costs including, but not limited to,
un-located utilities and unforeseen site conditions. (No additional payment shall be
made for rock excavation, replacement of fill material or dewatering). Use of
Allowance must be approved by the Collier County prior to the execution of the work.
All work must be billed on a time and material, lump sum, or unit price basis as agreed
upon by the Contractor, County, CEI, and EOR.
SECTION 3: WASTEWATER SYSTEM
3.1 8-inch PVC Gravity Sewer Pipe(Remove,Dispose, Replace)
A. Measurement for gravity sewer pipe, except as otherwise specified, will be based on
the horizontal laying length of the pipe in linear feet as measured to the nearest foot,
including the lengths of manholes and fittings, as installed and accepted.
B. Payment for furnishing and installing SDR 26 PVC gravity sewer will be made at the
Contract unit price per linear foot for the pipe in place, removal and disposal of the
existing VCP (including lined VCP), laying of the pipe, maintaining the wastewater
collection system in operation at all times,bypass pumping,plugs,and pumper/vacuum
trucks as necessary; support of existing sanitary sewer components, including
manholes; support of existing and proposed utility components including potable water
service laterals and conduits; compaction per FDOT standards, connections not
specified elsewhere, coordination with other contractors, and temporary facilities for
testing. Payment shall also include roadway removal and televising of the completed
108th Avenue North and 109th Avenue North Section IV - 12
Public Utility Renewal
B. Payment for removing and replacing stabilized subgrade will be made at the
appropriate contract unit price per square yard installed including furnishing all FDOT
certified material,compaction per FDOT standards,testing,equipment,and disposal of
old material. All activities should be in accordance with the Collier County ROW
Standards and as detailed on the Plans.
3.11 Road Restoration -Limerock Base (8-inch)
A. Measurement for removing and replacing roadway base will be based on the area
actually placed as field measured and shown on as-built drawings.
B. Payment for removing and replacing roadway base will be made at the appropriate
Contract unit price per square yard for FDOT certified base installed including
furnishing all material, compaction per FDOT standards, testing, equipment, and
disposal of old material. Replace all base in accordance with the Collier County ROW
Standards and details shown on the Plans.
3.12 Road Restoration—2-1/2" Asphalt (Two Lifts)
A. Measurement for removing and replacing street pavement surface will be based on the
area actually placed as field measured and shown on as-built drawings.
B. Payment for removing, disposing and replacing street pavement surface will be made
at the appropriate Contract unit price per square yard for pavement surface installed in
the work. Replace all pavement surface in accordance with the Collier County ROW
Standard Details and details shown on the Plans. This payment item shall be all
encompassing for all asphalt, sign removal and replacements, reflective pavement
markers, testing, and temporary striping and markings. This payment item shall cover
both lifts of asphalt. Contractor may apply for fifty percent (50%) payment at the
completion of the first lift of asphalt, and the remaining fifty percent (50%) shall be
paid at the completion and acceptance of the second lift.
3.13 Final Paving Striping/Marking
A. Measurement for various items covered under Final Paving Striping/Marking will not
be made for payment, and all items shall be included in the contract lump sum price.
B. Payment for Final Paving Striping/Marking will be made at the contract lump sum price
for the item, which price and payment shall be full compensation for final pavement
striping and markings within the project area.
3.14 Remove, Dispose,and Replace Concrete Curb
A. Measurement for removing, disposal, and replacing concrete curb and gutter will be
based on the total linear feet of material actually placed as field measured and shown
on as-built drawings.
B. Payment for removing, disposal, and replacing concrete curb and gutter shall be made
at the appropriate Contract unit price which price and shall include removal and
disposal of existing material, adjustment, furnishing subgrade and stabilizing material,
furnishing and installing of concrete curb and gutter to match the current conditions per
FDOT Standards, and testing as specified herein. Existing stormwater patterns shall be
maintained at all times during construction.
108th Avenue North and 109th Avenue North Section IV- 16
Public Utility Renewal
PAYMENT ITEMS
A. No separate payment will be made for the following Work, and its cost shall be included
in the Bid Price of the Payment Item to which it is associated:
1. Trench excavation, sheeting, shoring and bracing.
2. Dewatering and associated water quality testing as stipulated in the South Florida
Water Management District Permit.
3. Best management practices and controls required to meet dewatering discharge water
quality standards.
4. Erosion and sedimentation control and turbidity screening.
5. Excavation, fill, backfill, pipe bedding (including 57 stone), compaction, and grading,
including furnishing and installing imported material as required.
6. Excavation of all material encountered, including rock, organic, inorganic, and
unsuitable material and all material transportation and disposal.
7. Right-of-way, site, and all disturbed area restoration including grading, sod, mulch,
plantings, trees, landscape, etc. Sod type shall be determined by the type of sod that
constitutes 50%or more of the property to be restored.
8. Final and temporary restoration.
9. Removal and temporary replacement of driveways and roadways disturbed during
construction to maintain stable condition until permanent restoration is completed.
10. Tree trimming.
11. Removal, repair, and replacement of existing irrigation located within the ROW.
12. Maintaining irrigation systems operable during construction.
13. Removal and disposal of existing water main and associated appurtenances (other than
AC water main piping).
14. Removal and disposal of existing stormwater pipes, culverts, mitered ends, headwalls,
and associated structures.
15. Removal and replacement of existing bollards(wooden or concrete).
16. Cleanup and site dust control, including daily sweeping and watering and as needed to
maintain a clean work area and daily collecting and disposal of all trash and debris
within the project site.
17. Testing, including all materials, fees, certifications, and equipment.
18. Maintenance of utility service.
19. Appurtenant work.
20. Removal and replacement of fencing and other structures within the ROW.
21. Saw cutting.
22. Coordination with other contractors.
23. All transportation, storage, and labor.
24.Notifications to property owners of construction schedule and service interruptions.
25. Hiring of power company to relocate or support power poles as required
108th Avenue North and 109th Avenue North Section IV -2
Public Utility Renewal
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90-.11,
Orlando Airports District Office
U.S. Department 8427 SouthPark Circle,Suite 524
of Transportation Orlando,FL 32819
Federal Aviation Phone:(407)487-7220
Administration
September 8, 2020
Mr. Chris Rozansky
Executive Director
City of Naples Airport Authority
160 Aviation Drive North
Naples, Florida 34104-3568
Dear Mr. Rozansky:
We are transmitting to you for execution the Grant Offer for Airport Improvement Program (AIP)
Project No. 3-12-0053-038-2020 at Naples Municipal Airport in Naples, Florida. This letter outlines
expectations for success. Please read the conditions and assurances carefully.
To properly enter into this agreement,you must do the following:
a. The governing body must provide authority to execute the grant to the individual signing the
grant; i.e. the sponsor's authorized representative.
b. The sponsor's authorized representative must execute the grant,followed by the attorney's
certification, September 16, 2020, in in order for the grant to be valid.
c. The grant offer must be electronically signed by the sponsor's legal signatory authority and then
the grant offer will be routed via email to the sponsor's attorney. Once the attorney has
electronically attested to the grant, an email with the executed grant will be sent to all parties.
d. You may not make any modification to the text, terms or conditions of the grant offer.
Subject to the requirements in 2 CFR §200.305, each payment request for reimbursement under this
grant must be made electronically via the Delphi elnvoicing System. Please see the attached Grant
Agreement for more information regarding the use of this System.
The terms and conditions of this agreement require you to complete the project without undue delay.
We will be monitoring your progress to ensure proper stewardship of these Federal funds. We expect
you to submit payment requests for reimbursement of allowable incurred project expenses
consistent with project progress. Should you fail to make draws on a regular basis, your grant may be
placed in "inactive" status, which will affect your ability to receive future grant offers.
1
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icm (OA-
5 lU\2-2-
Until the grant is completed and closed, you are responsible for submitting formal reports as follows:
• A signed/dated SF-270 (non-construction projects) or SF-271 or equivalent (construction
projects) and SF-425 annually, due 90 days after the end of each federal fiscal year in which this
grant is open (due December 31 of each year this grant is open); and
• Performance Reports, which are due within 30 days of the end of a reporting period as follows:
1. Non-construction project: Due annually at end of the Federal fiscal year.
2. Construction project: Submit FAA form 5370-1, Construction Progress and Inspection
Report at the end of each fiscal quarter.
As a condition of receiving Federal assistance under this award,you must comply with audit
requirements as established under 2 CFR part 200. Subpart F requires non-Federal entities that expend
$750,000 or more in Federal awards to conduct a single or program specific audit for that year. Note
that this includes Federal expenditures made under other Federal-assistance programs. Please take
appropriate and necessary action to assure your organization will comply with applicable audit
requirements and standards.
Once the project(s) is completed and all costs are determined, we ask that you close the project
without delay and submit the necessary final closeout documentation as required by the Orlando
Airports District Office.
Krystal Ritchey, 407-487-7233, is the assigned program manager for this grant and is readily available
to assist you and your designated representative with the requirements stated herein. We sincerely
value your cooperation in these efforts and look forward to working with you to complete this
important project.
2
U.S.Department
of Transportation
Federal Aviation
Administration
GRANT AGREEMENT
PART I—OFFER
Federal Award Offer Date September 8, 2020
Airport/Planning Area Naples Municipal Airport
AIP Grant Number 12-0053-038-2020
Unique Entity Identifier 0922309520000
TO: City of Naples Airport Authority
(herein called the"Sponsor")
FROM: The United States of America(acting through the Federal Aviation Administration, herein
called the "FAA")
WHEREAS, the Sponsor has submitted to the FAA a Project Application dated May 21, 2020, for a grant
of Federal funds for a project at or associated with the Naples Municipal Airport, which is included as
part of this Grant Agreement; and
WHEREAS,the FAA has approved a project for the Naples Municipal Airport (herein called the
"Project") consisting of the following:
Improve Airport Drainage and Install Perimeter Wildlife Fence
which is more fully described in the Project Application.
NOW THEREFORE, According to the applicable provisions of the former Federal Aviation Act of 1958,
as amended and recodified, 49 U.S.C. § 40101, et seq., and the former Airport and Airway
Improvement Act of 1982 (AAIA), as amended and recodified, 49 U.S.C. § 47101, et seq., (herein the
AAIA grant statute is referred to as "the Act"),the representations contained in the Project Application,
and in consideration of (a) the Sponsor's adoption and ratification of the Grant Assurances dated
March 2014, as applied and interpreted consistent with the FAA Reauthorization Act of 2018 (see 2018
FAA Reauthorization grant condition.), (b) and the Sponsor's acceptance of this Offer; and, (c) the
benefits to accrue to the United States and the public from the accomplishment of the Project and
compliance with the Grant Assurances and conditions as herein provided.
THE FEDERAL AVIATION ADMINISTRATION, FOR AND ON BEHALF OF THE UNITED STATES, HEREBY
OFFERS AND AGREES to pay one hundred (100) percent of the allowable costs incurred
accomplishing the Project as the United States share of the Project.
3 - 12 - 0053 -038 - 2020
Assistance Listings Number(Formerly CFDA Number): 20.106
This Offer is made on and SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
CONDITIONS
1. Maximum Obligation.The maximum obligation of the United States payable under this Offer is
$2,464,301.
The following amounts represent a breakdown of the maximum obligation for the purpose of
establishing allowable amounts for any future grant amendment, which may increase the foregoing
maximum obligation of the United States under the provisions of 49 U.S.C. § 47108(b):
$0 for planning
$2,464,301 airport development or noise program implementation; and,
$0 for land acquisition.
2. Period of Performance.The period of performance begins on the date the Sponsor formally accepts
this agreement. Unless explicitly stated otherwise in an amendment from the FAA,the end date of the
period of performance is 4 years (1,460 calendar days)from the date of formal grant acceptance by the
Sponsor.
The Sponsor may only charge allowable costs for obligations incurred prior to the end date of the
period of performance (2 CFR §200.309). Unless the FAA authorizes a written extension, the sponsor
must submit all project closeout documentation and liquidate (pay off) all obligations incurred under
this award no later than 90 calendar days after the end date of the period of performance (2 CFR
§200.343).
The period of performance end date does not relieve or reduce Sponsor obligations and assurances
that extend beyond the closeout of a grant agreement.
3. Ineligible or Unallowable Costs.The Sponsor must not include any costs in the project that the FAA
has determined to be ineligible or unallowable.
4. Indirect Costs-Sponsor. Sponsor may charge indirect costs under this award by applying the indirect
cost rate identified in the project application as accepted by the FAA, to allowable costs for Sponsor
direct salaries and wages.
5. Determining the Final Federal Share of Costs.The United States' share of allowable project costs will
be made in accordance with the regulations, policies, and procedures of the Secretary. Final
determination of the United States' share will be based upon the final audit of the total amount of
allowable project costs and settlement will be made for any upward or downward adjustments to the
Federal share of costs.
6. Completing the Project without Delay and in Conformance with Requirements. The Sponsor must
carry out and complete the project without undue delays and in accordance with this agreement, and
the regulations, policies, and procedures of the Secretary. Per 2 CFR § 200.308,the Sponsor agrees to
report to the FAA any disengagement from performing the project that exceeds three months. The
2
3 - 12 -0053 -038 - 2020
report must include a reason for the project stoppage. The Sponsor also agrees to comply with the
assurances which are part of this agreement.
7. Amendments or Withdrawals before Grant Acceptance.The FAA reserves the right to amend or
withdraw this offer at any time prior to its acceptance by the Sponsor.
8. Offer Expiration Date.This offer will expire and the United States will not be obligated to pay any part
of the costs of the project unless this offer has been accepted by the Sponsor on or before September
16, 2020, or such subsequent date as may be prescribed in writing by the FAA.
9. Improper Use of Federal Funds.The Sponsor must take all steps, including litigation if necessary, to
recover Federal funds spent fraudulently, wastefully, or in violation of Federal antitrust statutes, or
misused in any other manner for any project upon which Federal funds have been expended. For the
purposes of this grant agreement,the term "Federal funds" means funds however used or dispersed
by the Sponsor, that were originally paid pursuant to this or any other Federal grant agreement.The
Sponsor must obtain the approval of the Secretary as to any determination of the amount of the
Federal share of such funds. The Sponsor must return the recovered Federal share, including funds
recovered by settlement, order, or judgment,to the Secretary.The Sponsor must furnish to the
Secretary, upon request, all documents and records pertaining to the determination of the amount of
the Federal share or to any settlement, litigation, negotiation, or other efforts taken to recover such
funds. All settlements or other final positions of the Sponsor, in court or otherwise, involving the
recovery of such Federal share require advance approval by the Secretary.
10. United States Not Liable for Damage or Injury.The United States is not responsible or liable for
damage to property or injury to persons which may arise from, or be incident to, compliance with this
grant agreement.
11. System for Award Management (SAM) Registration and Universal Identifier.
A. Requirement for System for Award Management (SAM): Unless the Sponsor is exempted from this
requirement under 2 CFR 25.110,the Sponsor must maintain the currency of its information in the
SAM until the Sponsor submits the final financial report required under this grant, or receives the
final payment, whichever is later. This requires that the Sponsor review and update the information
at least annually after the initial registration and more frequently if required by changes in
information or another award term. Additional information about registration procedures may be
found at the SAM website (currently at http://www.sam.gov).
B. Unique entity identifier (UEI) means a 12-character alpha-numeric value used to identify a specific
commercial, nonprofit or governmental entity. A UEI may be obtained from SAM.gov at
https://sam.gov/SAM/pages/public/index.isf.
12. Electronic Grant Payment(s). Unless otherwise directed by the FAA, the Sponsor must make each
payment request under this agreement electronically via the Delphi elnvoicing System for Department
of Transportation (DOT) Financial Assistance Awardees.
13. Informal Letter Amendment of AIP Projects. If, during the life of the project, the FAA determines that
the maximum grant obligation of the United States exceeds the expected needs of the Sponsor by
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$25,000 or five percent (5%), whichever is greater, the FAA can issue a letter amendment to the
Sponsor unilaterally reducing the maximum obligation.
The FAA can also issue a letter to the Sponsor increasing the maximum obligation if there is an overrun
in the total actual eligible and allowable project costs to cover the amount of the overrun provided it
will not exceed the statutory limitations for grant amendments. The FAA's authority to increase the
maximum obligation does not apply to the "planning" component of condition No. 1.
The FAA can also issue an informal letter amendment that modifies the grant description to correct
administrative errors or to delete work items if the FAA finds it advantageous and in the best interests
of the United States.
An informal letter amendment has the same force and effect as a formal grant amendment.
14. Air and Water Quality. The Sponsor is required to comply with all applicable air and water quality
standards for all projects in this grant. If the Sponsor fails to comply with this requirement, the FAA
may suspend, cancel, or terminate this agreement.
15. Financial Reporting and Payment Requirements.The Sponsor will comply with all federal financial
reporting requirements and payment requirements, including submittal of timely and accurate reports.
16. Buy American. Unless otherwise approved in advance by the FAA,the Sponsor will not acquire or
permit any contractor or subcontractor to acquire any steel or manufactured products produced
outside the United States to be used for any project for which funds are provided under this grant.The
Sponsor will include a provision implementing Buy American in every contract.
17. Maximum Obligation Increase. In accordance with 49 U.S.C. § 47108(b), as amended, the maximum
obligation of the United States, as stated in Condition No. 1 of this Grant Offer:
A. May not be increased for a planning project;
B. May be increased by not more than 15 percent for development projects if funds are available;
C. May be increased by not more than 15 percent for land project if funds are available.
18. Audits for Public Sponsors.The Sponsor must provide for a Single Audit or program specific audit in
accordance with 2 CFR part 200. The Sponsor must submit the audit reporting package to the Federal
Audit Clearinghouse on the Federal Audit Clearinghouse's Internet Data Entry System at
http://harvester.census.gov/facweb/. Provide one copy of the completed audit to the FAA if
requested.
19. Suspension or Debarment. When entering into a "covered transaction" as defined by 2 CFR §180.200,
the Sponsor must:
A. Verify the non-federal entity is eligible to participate in this Federal program by:
1. Checking the excluded parties list system (EPLS) as maintained within the System for Award
Management (SAM)to determine if the non-federal entity is excluded or disqualified; or
2. Collecting a certification statement from the non-federal entity attesting they are not excluded
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or disqualified from participating; or
3. Adding a clause or condition to covered transactions attesting individual or firm are not
excluded or disqualified from participating.
B. Require prime contractors to comply with 2 CFR §180.330 when entering into lower-tier
transactions (e.g. Sub-contracts).
C. Immediately disclose to the FAA whenever the Sponsor (1) learns they have entered into a covered
transaction with an ineligible entity or(2) suspends or debars a contractor, person, or entity.
20. Ban on Texting While Driving.
A. In accordance with Executive Order 13513, Federal Leadership on Reducing Text Messaging While
Driving, October 1, 2009, and DOT Order 3902.10,Text Messaging While Driving, December 30,
2009, the Sponsor is encouraged to:
1. Adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers
including policies to ban text messaging while driving when performing any work for, or on
behalf of, the Federal government, including work relating to a grant or subgrant.
2. Conduct workplace safety initiatives in a manner commensurate with the size of the business,
such as:
a. Establishment of new rules and programs or re-evaluation of existing programs to
prohibit text messaging while driving; and
b. Education, awareness, and other outreach to employees about the safety risks
associated with texting while driving.
B. The Sponsor must insert the substance of this clause on banning texting while driving in all
subgrants, contracts and subcontracts.
21. Exhibit "A" Property Map. The Exhibit "A" Property Map dated August 24, 2012, is incorporated herein
by reference or is submitted with the project application and made part of this grant agreement.
22. Employee Protection from Reprisal.
A. Prohibition of Reprisals—
1. In accordance with 41 U.S.C. § 4712, an employee of a grantee or subgrantee may not be
discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person
or body described in sub-paragraph (A)(2), information that the employee reasonably believes
is evidence of:
i. Gross mismanagement of a Federal grant;
ii. Gross waste of Federal funds;
iii. An abuse of authority relating to implementation or use of Federal funds;
iv. A substantial and specific danger to public health or safety; or
v. A violation of law, rule, or regulation related to a Federal grant.
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2. Persons and bodies covered: The persons and bodies to which a disclosure by an employee is
covered are as follows:
i. A member of Congress or a representative of a committee of Congress;
ii. An Inspector General;
iii. The Government Accountability Office;
iv. A Federal office or employee responsible for oversight of a grant program;
v. A court or grand jury;
vi. A management office of the grantee or subgrantee; or
vii. A Federal or State regulatory enforcement agency.
3. Submission of Complaint—A person who believes that they have been subjected to a reprisal
prohibited by paragraph A of this grant term may submit a complaint regarding the reprisal to
the Office of Inspector General (OIG) for the U.S. Department of Transportation.
4. Time Limitation for Submittal of a Complaint-A complaint may not be brought under this
subsection more than three years after the date on which the alleged reprisal took place.
5. Required Actions of the Inspector General —Actions, limitations and exceptions of the Inspector
General's office are established under 41 U.S.C. §4712(b)
6. Assumption of Rights to Civil Remedy- Upon receipt of an explanation of a decision not to
conduct or continue an investigation by the Office of Inspector General, the person submitting
a complaint assumes the right to a civil remedy under4l U.S.C. §4712(c).
23. 2018 FAA Reauthorization.This grant agreement is subject to the terms and conditions contained
herein including the terms known as the Grant Assurances as they were published in the Federal
Register on April 3, 2014. On October 5, 2018, the FAA Reauthorization Act of 2018 made certain
amendments to 49 U.S.C. chapter 471.The Reauthorization Act will require FAA to make certain
amendments to the assurances in order to best achieve consistency with the statute. Federal law
requires that FAA publish any amendments to the assurances in the Federal Register along with an
opportunity to comment. In order not to delay the offer of this grant, the existing assurances are
attached herein; however, FAA shall interpret and apply these assurances consistent with the
Reauthorization Act. To the extent there is a conflict between the assurances and Federal statutes, the
statutes shall apply.The full text of the Act is at https://www.congress.gov/bill/115th-congress/house-
bill/302/text.
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The Sponsor's acceptance of this Offer and ratification and adoption of the Project Application
incorporated herein shall be evidenced by execution of this instrument by the Sponsor, as hereinafter
provided, and this Offer and Acceptance shall comprise a Grant Agreement, as provided by the Act,
constituting the contractual obligations and rights of the United States and the Sponsor with respect to
the accomplishment of the Project and compliance with the assurances and conditions as provided
herein. Such Grant Agreement shall become effective upon the Sponsor's acceptance of this Offer.
UNITED STATES OF AMERICA
FEDERAL AVIATION ADMINISTRATION
(Signature)
Bart Vernace
(Typed Name)
Manager
(Title of FAA Official)
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PART I I-ACCEPTANCE
The Sponsor does hereby ratify and adopt all assurances, statements, representations, warranties,
covenants, and agreements contained in the Project Application and incorporated materials referred
to in the foregoing Offer, and does hereby accept this Offer and by such acceptance agrees to comply
with all of the terms and conditions in this Offer and in the Project Application.
I declare under penalty of perjury that the foregoing is true and correct."
Executed this 14th day of September
City of Naples Airport Authority
..............................................................................................................................................................................................................
(Name of Sponsor)
(Signature of Sponsor's Authorized Official)
By: Chris Rozansky
(Typed Name of Sponsor's Authorized Official)
Title: Executive Director
(Title of Sponsor's Authorized Official
CERTIFICATE OF SPONSOR'S ATTORNEY
I, William L.Owens , acting as Attorney for the Sponsor do hereby certify:
That in my opinion the Sponsor is empowered to enter into the foregoing Grant Agreement under the
laws of the State of Florida. Further, I have examined the foregoing Grant Agreement and the actions
taken by said Sponsor and Sponsor's official representative has been duly authorized and that the
execution thereof is in all respects due and proper and in accordance with the laws of the said State
and the Act. In addition, for grants involving projects to be carried out on property not owned by the
Sponsor,there are no legal impediments that will prevent full performance by the Sponsor. Further, it
is my opinion that the said Grant Agreement constitutes a legal and binding obligation of the Sponsor
in accordance with the terms thereof.
Dated at Naples,Florida, (location)this 14th day of September 2020
By:
(Signature of Sponsor's Attorney)
'Knowingly and willfully providing false information to the Federal government is a violation of 18
U.S.C. Section 1001 (False Statements) and could subject you to fines, imprisonment, or both.
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ASSURANCES
PLANNING AGENCY SPONSORS
A. General.
1. These assurances shall be complied with in the performance of grant agreements for
airport development, airport planning, and noise compatibility program grants for airport
sponsors.
2. These assurances are required to be submitted as part of the project application by
sponsors requesting funds under the provisions of Title 49, U.S.C., subtitle VII, as
amended. As used herein, the term "public agency sponsor" means a public agency with
control of a public-use airport; the term "private sponsor" means a private owner of a
public-use airport; and the term "sponsor" includes both public agency sponsors and
private sponsors.
3. Upon acceptance of this grant offer by the sponsor, these assurances are incorporated in
and become part of this grant agreement.
B. Duration and Applicability.
The terms, conditions and assurances of this grant agreement shall remain in full force and
effect during the life of the project.
C. Sponsor Certification.
The sponsor hereby assures and certifies, with respect to this grant that:
1. General Federal Requirements.
It will comply with all applicable Federal laws, regulations, executive orders, policies,
guidelines, and requirements as they relate to the application, acceptance and use of
Federal funds for this project including but not limited to the following:
FEDERAL LEGISLATION
a. Title 49, U.S.C., subtitle VII, as amended.
b. Federal Fair Labor Standards Act- 29 U.S.C. 201, et seq.
c. Hatch Act—5 U.S.C. 1501, et seq.2
d. Rehabilitation Act of 1973 -29 U.S.C. 794
e. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2OOOd et seq., 78 stat. 252) (prohibits
discrimination on the basis of race, color, national origin)
f. Americans with Disabilities Act of 1990, as amended, (42 U.S.C. § 12101 et seq.),
prohibits discrimination on the basis of disability
g. Age Discrimination Act of 1975 -42 U.S.C. 6101, et seq.
h. Single Audit Act of 1984- 31 U.S.C. 7501, et seq.2
i. Drug-Free Workplace Act of 1988 -41 U.S.C. 702 through 706.
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EXECUTIVE ORDERS
a. Executive Order 12372 - Intergovernmental Review of Federal Programs
FEDERAL REGULATIONS
a. 2 CFR Part 180- OMB Guidelines to Agencies on Governmentwide Debarment and
Suspension (Nonprocurement).
b. 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards. [OMB Circular A-87 Cost Principles Applicable to
Grants and Contracts with State and Local Governments, and OMB Circular A-133 -
Audits of States, Local Governments, and Non-Profit Organizations].4,5,6
c. 2 CFR Part 1200—Nonprocurement Suspension and Debarment
d. 14 CFR Part 13 - Investigative and Enforcement Procedures
e. 14 CFR Part 16- Rules of Practice For Federally Assisted Airport Enforcement
Proceedings.
f. 28 CFR § 50.3 - U.S. Department of Justice Guidelines for Enforcement of Title VI of the
Civil Rights Act of 1964.
g. 49 CFR Part 18 - Uniform administrative requirements for grants and cooperative
agreements to state and local governments.3
h. 49 CFR Part 20- New restrictions on lobbying.
i. 49 CFR Part 21— Nondiscrimination in federally-assisted programs of the Department
of Transportation - effectuation of Title VI of the Civil Rights Act of 1964.
j. 49 CFR Part 26—Participation by Disadvantaged Business Enterprises in Department of
Transportation Programs.
k. 49 CFR Part 28—Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities conducted by the Department of Transportation.
I. 49 CFR Part 30- Denial of public works contracts to suppliers of goods and services of
countries that deny procurement market access to U.S. contractors.
m. 28 CFR Part 35- Discrimination on the Basis of Disability in State and Local Government
Services.
n. 28 CFR § 50.3 - U.S. Department of Justice Guidelines for Enforcement of Title VI of the
Civil Rights Act of 1964.
o. 49 CFR Part 28— Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities conducted by the Department of Transportation.
p. 49 CFR Part 32—Governmentwide Requirements for Drug-Free Workplace (Financial
Assistance)
q. The Federal Funding Accountability and Transparency Act of 2006, as amended (Pub. L.
109-282, as amended by section 6202 of Public Law 110-252).
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SPECIFIC ASSURANCES
Specific assurances required to be included in grant agreements by any of the above laws,
regulations or circulars are incorporated by reference in this grant agreement.
FOOTNOTES TO ASSURANCE C.1.
1 These laws do not apply to airport planning sponsors.
2 These laws do not apply to private sponsors.
3 49 CFR Part 18 and 2 CFR Part 200 contain requirements for State and Local Governments
receiving Federal assistance. Any requirement levied upon State and Local Governments
by this regulation and circular shall also be applicable to private sponsors receiving Federal
assistance under Title 49, United States Code.
4 On December 26, 2013 at 78 FR 78590, the Office of Management and Budget (OMB)
issued the Uniform Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards in 2 CFR Part 200. 2 CFR Part 200 replaces and combines the former
Uniform Administrative Requirements for Grants (OMB Circular A-102 and Circular A-110
or 2 CFR Part 215 or Circular) as well as the Cost Principles (Circulars A-21 or 2 CFR part
220; Circular A-87 or 2 CFR part 225; and A-122, 2 CFR part 230). Additionally it replaces
Circular A-133 guidance on the Single Annual Audit. In accordance with 2 CFR section
200.110, the standards set forth in Part 200 which affect administration of Federal awards
issued by Federal agencies become effective once implemented by Federal agencies or
when any future amendment to this Part becomes final. Federal agencies, including the
Department of Transportation, must implement the policies and procedures applicable to
Federal awards by promulgating a regulation to be effective by December 26, 2014 unless
different provisions are required by statute or approved by OMB.
5 Cost principles established in 2 CFR part 200 subpart E must be used as guidelines for
determining the eligibility of specific types of expenses.
6 Audit requirements established in 2 CFR part 200 subpart F are the guidelines for audits.
2. Responsibility and Authority of the Sponsor.
It has legal authority to apply for this grant, and to finance and carry out the proposed
project; that a resolution, motion or similar action has been duly adopted or passed as an
official act of the applicant's governing body authorizing the filing of the application,
including all understandings and assurances contained therein, and directing and
authorizing the person identified as the official representative of the applicant to act in
connection with the application and to provide such additional information as may be
required.
3. Sponsor Fund Availability.
It has sufficient funds available for that portion of the project costs which are not to be
paid by the United States.
4. Preserving Rights and Powers.
a. It will not take or permit any action which would operate to deprive it of any of the
rights and powers necessary to perform any or all of the terms, conditions, and
assurances in this grant agreement without the written approval of the Secretary
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5. Consistency with Local Plans.
The project is reasonably consistent with plans (existing at the time of submission of this
application) of public agencies in the planning area.
6. Accounting System,Audit, and Record Keeping Requirements.
a. It shall keep all project accounts and records which fully disclose the amount and
disposition by the recipient of the proceeds of this grant, the total cost of the project
in connection with which this grant is given or used, and the amount or nature of that
portion of the cost of the project supplied by other sources, and such other financial
records pertinent to the project.The accounts and records shall be kept in accordance
with an accounting system that will facilitate an effective audit in accordance with the
Single Audit Act of 1984.
b. It shall make available to the Secretary and the Comptroller General of the United
States, or any of their duly authorized representatives, for the purpose of audit and
examination, any books, documents, papers, and records of the recipient that are
pertinent to this grant. The Secretary may require that an appropriate audit be
conducted by a recipient. In any case in which an independent audit is made of the
accounts of a sponsor relating to the disposition of the proceeds of a grant or relating
to the project in connection with which this grant was given or used, it shall file a
certified copy of such audit with the Comptroller General of the United States not later
than six (6) months following the close of the fiscal year for which the audit was made.
7. Planning Projects.
In carrying out planning projects:
a. It will execute the project in accordance with the approved program narrative
contained in the project application or with modifications similarly approved.
b. It will furnish the Secretary with such periodic reports as required pertaining to the
planning project and planning work activities.
c. It will include in all published material prepared in connection with the planning
project a notice that the material was prepared under a grant provided by the United
States.
d. It will make such material available for examination by the public, and agrees that no
material prepared with funds under this project shall be subject to copyright in the
United States or any other country.
e. It will give the Secretary unrestricted authority to publish, disclose, distribute, and
otherwise use any of the material prepared in connection with this grant.
f. It will grant the Secretary the right to disapprove the Sponsor's employment of specific
consultants and their subcontractors to do all or any part of this project as well as the
right to disapprove the proposed scope and cost of professional services.
g. It will grant the Secretary the right to disapprove the use of the sponsor's employees
to do all or any part of the project.
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h. It understands and agrees that the Secretary's approval of this project grant or the
Secretary's approval of any planning material developed as part of this grant does not
mean constitute or imply any assurance or commitment on the part of the Secretary
to approve any pending or future application for a Federal airport grant.
8. Reports and Inspections.
It will submit to the Secretary such annual or special financial and operations reports as
the Secretary may reasonably request.
9. Civil Rights.
It will promptly take any measures necessary to ensure that no person in the United
States shall, on the grounds of race, creed, color, national origin, sex, age, or disability be
excluded from participation in, be denied the benefits of, or be otherwise subjected to
discrimination in any activity conducted with, or benefiting from,funds received from this
grant.
a. Using the definitions of activity,facility and program as found and defined in §§ 21.23
(b) and 21.23 (e) of 49 CFR § 21, the sponsor will facilitate all programs, operate all
facilities, or conduct all programs in compliance with all non-discrimination
requirements imposed by, or pursuant to these assurances.
b. Applicability
1) Programs and Activities. If the sponsor has received a grant (or other federal
assistance) for any of the sponsor's program or activities, these requirements
extend to all of the sponsor's programs and activities.
2) Facilities. Where it receives a grant or other federal financial assistance to
construct, expand, renovate, remodel, alter or acquire a facility, or part of a
facility,the assurance extends to the entire facility and facilities operated in
connection therewith.
3) Real Property. Where the sponsor receives a grant or other Federal financial
assistance in the form of, or for the acquisition of real property or an interest in
real property,the assurance will extend to rights to space on, over, or under such
property.
c. Duration.
The sponsor agrees that it is obligated to this assurance for the period during which
Federal financial assistance is extended to the program, except where the Federal
financial assistance is to provide, or is in the form of, personal property, or real
property, or interest therein, or structures or improvements thereon, in which case
the assurance obligates the sponsor, or any transferee for the longer of the following
periods:
4) So long as the airport is used as an airport, or for another purpose involving the
provision of similar services or benefits; or
5) So long as the sponsor retains ownership or possession of the property.
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a.)Required Solicitation Language.
b.)It will include the following notification in all solicitations for bids, Requests
For Proposals for work, or material under this grant agreement and in all
proposals for agreements, including airport concessions, regardless of funding
source:
"The City of Naples Airport Authority, in accordance with the provisions of Title VI of
the Civil Rights Act of 1964 (78 Stat. 252,42 U.S.C. §§ 2000d to 2000d-4) and the
Regulations, hereby notifies all bidders that it will affirmatively ensure that any
contract entered into pursuant to this advertisement, disadvantaged business
enterprises and airport concession disadvantaged business enterprises will be
afforded full and fair opportunity to submit bids in response to this invitation and will
not be discriminated against on the grounds of race, color, or national origin in
consideration for an award."
d. Required Contract Provisions.
1) It will insert the non-discrimination contract clauses requiring compliance with
the acts and regulations relative to non-discrimination in Federally-assisted
programs of the DOT, and incorporating the acts and regulations into the
contracts by reference in every contract or agreement subject to the non-
discrimination in Federally-assisted programs of the DOT acts and regulations.
2) It will include a list of the pertinent non-discrimination authorities in every
contract that is subject to the non-discrimination acts and regulations.
3) It will insert non-discrimination contract clauses as a covenant running with the
land, in any deed from the United States effecting or recording a transfer of real
property, structures, use, or improvements thereon or interest therein to a
sponsor.
4) It will insert non-discrimination contract clauses prohibiting discrimination on the
basis of race, color, national origin, creed, sex, age, or handicap as a covenant
running with the land, in any future deeds, leases, license, permits, or similar
instruments entered into by the sponsor with other parties:
a.) For the subsequent transfer of real property acquired or improved under the
applicable activity, project, or program; and
b.)For the construction or use of, or access to, space on, over, or under real
property acquired or improved under the applicable activity, project, or
program.
e. It will provide for such methods of administration for the program as are found by the
Secretary to give reasonable guarantee that it, other recipients, sub-recipients, sub-
grantees, contractors, subcontractors, consultants, transferees, successors in interest,
and other participants of Federal financial assistance under such program will comply
with all requirements imposed or pursuant to the acts,the regulations, and this
assurance.
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f. It agrees that the United States has a right to seek judicial enforcement with regard to
any matter arising under the acts,the regulations, and this assurance.
10. Engineering and Design Services.
It will award each contract, or sub-contract for program management, construction
management, planning studies,feasibility studies, architectural services, preliminary
engineering, design, engineering, surveying, mapping or related services with respect to
the project in the same manner as a contract for architectural and engineering services is
negotiated under Title IX of the Federal Property and Administrative Services Act of 1949
or an equivalent qualifications-based requirement prescribed for or by the sponsor of the
airport.
11. Foreign Market Restrictions.
It will not allow funds provided under this grant to be used to fund any project which uses
any product or service of a foreign country during the period in which such foreign
country is listed by the United States Trade Representative as denying fair and equitable
market opportunities for products and suppliers of the United States in procurement and
construction.
12. Policies, Standards, and Specifications.
It will carry out the project in accordance with policies, standards, and specifications
approved by the Secretary.
13. Disadvantaged Business Enterprises.
The recipient shall not discriminate on the basis of race, color, national origin or sex in the
award and performance of any DOT-assisted contract covered by 49 CFR Part 26. The
recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of DOT-assisted contracts.The
recipient's DBE program, as required by 49 CFR Parts 26, and as approved by DOT, is
incorporated by reference in this agreement. Implementation of these programs is a legal
obligation and failure to carry out its terms shall be treated as a violation of this
agreement. Upon notification to the recipient of its failure to carry out its approved
program, the Department may impose sanctions as provided for under Parts 26 and 23
and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. § 1001
and/or the Program Fraud Civil Remedies Act of 1936 (31 U.S.C. § 3801).
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(r '
tt FAA
41.1F°.: Airports
NISTR�
Current FAA Advisory Circulars Required for Use in AIP Funded and PFC Approved
Projects
Updated: 4/18/2019
View the most current versions of these ACs and any associated changes at:
http://www.faa.gov/airports/resources/advisory circulars and
http://www.faa.gov/regulations policies/advisory circulars/
NUMBER TITLE
7 1L Obstruction Marking and Lighting
Change 2
150/5000 9A Announcement of Availability Report No. DOT/FAA/PP/92-5, Guidelines
for the Sound Insulation of Residences Exposed to Aircraft Operations
150/5000-17 Critical Aircraft and Regular Use Determination
150/5020-1 Noise Control and Compatibility Planning for Airports
150/5070-6B Airport Master Plans
Changes 1-2
150/5070-7 The Airport System Planning Process
Change 1
150/5100-13B Development of State Standards for Nonprimary Airports
150/5200-28F Notices to Airmen (NOTAMS)for Airport Operators
150/5200-30D Airport Field Condition Assessments and Winter Operations Safety
Change 1
150/5200-31C Airport Emergency Plan
Changes 1-2
150/5210-5D Painting, Marking, and Lighting of Vehicles Used on an Airport
16
FAA Advisory Circular Required for Use AIP Funded and PFC Approved Projects Updated:4/18/2019
3 - 12 - 0053 -038 - 2020
NUMBER TITLE
150/5210-7D Aircraft Rescue and Fire Fighting Communications
150/5210-13C Airport Water Rescue Plans and Equipment
150/5210-14B Aircraft Rescue Fire Fighting Equipment, Tools and Clothing
150/5210-15A Aircraft Rescue and Firefighting Station Building Design
150/5210-18A Systems for Interactive Training of Airport Personnel
150/5210-19A Driver's Enhanced Vision System (DEVS)
150/5220-10E Guide Specification for Aircraft Rescue and Fire Fighting (ARFF) Vehicles
150/5220-16E Automated Weather Observing Systems (AWOS) for Non-Federal
Changes 1 Applications
150/5220-17B Aircraft Rescue and Fire Fighting (ARFF)Training Facilities
150/5220 18A Buildings for Storage and Maintenance of Airport Snow and Ice Control
Equipment and Materials
150/5220-20A Airport Snow and Ice Control Equipment
150/5220-21C Aircraft Boarding Equipment
150/5220-22B Engineered Materials Arresting Systems (EMAS)for Aircraft Overruns
150/5220-23 Frangible Connections
150/5220-24 Foreign Object Debris Detection Equipment
150/5220-25 Airport Avian Radar Systems
150/5220-26 Airport Ground Vehicle Automatic Dependent Surveillance - Broadcast
Changes 1-2 (ADS-B) Out Squitter Equipment
150/5300-13A
Change 1 Airport Design
150/5300-14C Design of Aircraft Deicing Facilities
General Guidance and Specifications for Aeronautical Surveys:
150/5300-16A Establishment of Geodetic Control and Submission to the National
Geodetic Survey
17
FAA Advisory Circular Required for Use AIP Funded and PFC Approved Projects Updated:4/18/2019
3 - 12 -0053 - 038 - 2020
NUMBER TITLE
150/5300-17C
Change 1 Standards for Using Remote Sensing Technologies in Airport Surveys
150/5300 18B General Guidance and Specifications for Submission of Aeronautical
Change 1 Surveys to NGS: Field Data Collection and Geographic Information
System (GIS) Standards
150/5320-5D Airport Drainage Design
150/5320-6F Airport Pavement Design and Evaluation
150/5320-12C Measurement, Construction, and Maintenance of Skid Resistant Airport
Changes 1-8 Pavement Surfaces
150/5320-15A Management of Airport Industrial Waste
150/5235-4B Runway Length Requirements for Airport Design
150/5335-5C Standardized Method of Reporting Airport Pavement Strength - PCN
150/5340-1L Standards for Airport Markings
150/5340-5D Segmented Circle Airport Marker System
150/5340-18F Standards for Airport Sign Systems
150/5340-26C Maintenance of Airport Visual Aid Facilities
150/5340-30J Design and Installation Details for Airport Visual Aids
150/5345-3G Specification for L-821, Panels for the Control of Airport Lighting
150/5345-5B Circuit Selector Switch
150/5345 7F Specification for L-824 Underground Electrical Cable for Airport Lighting
Circuits
150/5345-10H Specification for Constant Current Regulators and Regulator Monitors
150/5345-12F Specification for Airport and Heliport Beacons
150/5345-13B Specification for L-841 Auxiliary Relay Cabinet Assembly for Pilot Control
of Airport Lighting Circuits
150/5345-26D FAA Specification For L-823 Plug and Receptacle, Cable Connectors
18
FAA Advisory Circular Required for Use AIP Funded and PFC Approved Projects Updated:4/18/2019
3 - 12 - 0053 - 038 - 2020
NUMBER TITLE
150/5345-27E Specification for Wind Cone Assemblies
150/5345-28G Precision Approach Path Indicator (PAPI) Systems
150/5345-39D Specification for L-853, Runway and Taxiway Retro reflective Markers
150/5345-42H Specification for Airport Light Bases,Transformer Housings,Junction
Boxes, and Accessories
150/5345-43H Specification for Obstruction Lighting Equipment
150/5345-44K Specification for Runway and Taxiway Signs
150/5345-45C Low-Impact Resistant (LIR) Structures
150/5345-46E Specification for Runway and Taxiway Light Fixtures
150/5345 47C Specification for Series to Series Isolation Transformers for Airport
Lighting Systems
150/5345-49D Specification L-854, Radio Control Equipment
150/5345-50B Specification for Portable Runway and Taxiway Lights
150/5345-51B Specification for Discharge-Type Flashing Light Equipment
150/5345-52A Generic Visual Glideslope Indicators (GVGI)
150/5345-53D Airport Lighting Equipment Certification Program
150/5345 54B Specification for L-884, Power and Control Unit for Land and Hold Short
Lighting Systems
150/5345-55A Specification for L-893, Lighted Visual Aid to Indicate Temporary Runway
Closure
150/5345 56B Specification for L-890 Airport Lighting Control and Monitoring System
(ALCMS)
150/5360-12F Airport Signing and Graphics
150/5360-13A Airport Terminal Planning
150/5360-14A Access to Airports By Individuals With Disabilities
19
FAA Advisory Circular Required for Use AIP Funded and PFC Approved Projects Updated:4/18/2019
3 - 12 -0053 - 038 - 2020
NUMBER TITLE
150/5370-2G Operational Safety on Airports During Construction
150/5370-10H Standards for Specifying Construction of Airports
150/5370-11B Use of Nondestructive Testing in the Evaluation of Airport Pavements
150/5370-13A Off-Peak Construction of Airport Pavements Using Hot-Mix Asphalt
150/5370-15B Airside Applications for Artificial Turf
150/5370-16 Rapid Construction of Rigid (Portland Cement Concrete) Airfield
Pavements
150/5370-17 Airside Use of Heated Pavement Systems
150/5390-2C Heliport Design
150/5395-1A Seaplane Bases
20
FAA Advisory Circular Required for Use ALP Funded and PFC Approved Projects Updated:4/18/2019
3 - 12 -0053 -038 - 2020
THE FOLLOWING ADDITIONAL APPLY TO AIP PROJECTS ONLY
Updated: 3/22/2019
NUMBER TITLE
150/5100-14E Architectural, Engineering, and Planning Consultant Services for
Change 1 Airport Grant Projects
150/5100-17 Land Acquisition and Relocation Assistance for Airport Improvement
Changes 1 - 7 Program Assisted Projects
150/5300 15A Use of Value Engineering for Engineering Design of Airport Grant
Projects
150/5320-17A Airfield Pavement Surface Evaluation and Rating Manuals
150/5370 12B Quality Management for Federally Funded Airport Construction
Projects
150/5380-6C Guidelines and Procedures for Maintenance of Airport Pavements
150/5380-7B Airport Pavement Management Program
150/5380-9 Guidelines and Procedures for Measuring Airfield Pavement
Roughness
21
FAA Advisory Circular Required for Use AIP Funded and PFC Approved Projects Updated:4/18/2019
Eyhi &rF1
4
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF ALAMEDA
10
11 CENTER FOR ENVIRONMENTAL HEALTH, Case No.: RG-11-600721
a non-profit corporation,
12 [PROPOSED] CONSENT JUDGMENT
Plaintiff,
13
v.
14
AERODYNAMIC AVIATION, et al.,
15
Defendants.
16
17
18 1. INTRODUCTION
19 1.1 The parties to this Consent Judgment("Parties") are Plaintiff,the Center for
20 Environmental Health("CEH"), and the undersigned defendants on Exhibit A (the"Settling
21 Defendants").
22 1.2 Commencing in May 2011, CEH served multiple 60-Day Notices of Violation under
23 Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986, California Health&
24 Safety Code §§ 25249.5, et seq.), alleging that the entities named in those notices violated
25 Proposition 65 by exposing persons to lead, as well as lead and lead compounds (collectively,
26 "Lead") contained in leaded aviation gasoline ("Avgas")without first providing a clear and
27 reasonable Proposition 65 warning.
28
34326137v3 - 1 -
[PROPOSED]CONSENT JUDGMENT
1 1.3 On June 30, 2011, several of the defendants in this case filed an action in the United
2 States District Court for the Eastern District of California against CEH,the California Attorney
3 General, and the Acting Director of the California Office of Environmental Health Hazard
4 Assessment(together the "Federal Defendants"). The federal plaintiffs sought declaratory and
5 injunctive relief, alleging that CEH's Proposition 65 claims were preempted by federal law. Federal
6 Defendants' motions to dismiss were granted, and the action was dismissed on October 19, 2011.
7 1.4 On October 20, 2011 CEH filed the action entitled CEH v. Aerodynamic Aviation, et
8 al., Case No. RG 11-600721, in the Superior Court of California for Alameda County. On October
9 25, 2011, CEH filed its First Amended Complaint. On July 17, 2012, CEH filed the operative
10 Second Amended Complaint(the"Complaint").
11 1.5 Each Settling Defendant distributes or offers Avgas for sale in the State of California
12 or has done so in the past.1 The Settling Defendants are composed of fixed base operators and other
13 businesses that offer Avgas for retail sale at airports in California(the"FBO Settling Defendants")
14 and distributors of Avgas that distribute Avgas to FBOs and other businesses that offer Avgas for
15 retail sale at airports in California(the "Distributor Settling Defendants"). The FBO Settling
16 Defendants together operate at 24 different airports in California. In some instances, a number of
17 different FBO Settling Defendants operate at the same California airport.
18 1.6 The Parties acknowledge that the form of Avgas currently in use is known as 1 OOLL,
19 indicating it has an octane rating of 100 and is"low lead." The concentration of lead in 100LL
20 Avgas currently in use is specified at a maximum of 0.56 grams of lead per liter of fuel under
21 specification ASTM D910. A newer form of Avgas,known as 100VLL for"very low lead,"has
22 recently been approved by the Federal Aviation Administration("FAA") and is specified at a
23 maximum of 0.45 grams of lead per liter of fuel under specification ASTM D910, but is not yet
24 commercially available for sale in California. In addition, at least one major refinery of Avgas
25
26
27 1 World Fuel Services Corporation("WFSC") is a holding company and does not distribute or offer
AvGas for sale in the State of California currently or at any time in the past. WFSC is participating
28 in the settlement on behalf of any and all of its subsidiaries and affiliates.
- 2 -
[PROPOSED]CONSENT JUDGMENT
1 recently began the process of obtaining FAA approval of a lead free alternative to Avgas that may
2 be used in all aircraft.
3 1.7 The Parties acknowledge that certain aircraft that have obtained Supplemental Type
4 Certificates from the FAA are permitted by law to use high octane automotive gasoline that does
5 not contain lead ("Mogas"). Although some aircraft are capable of using Mogas, some are not. As
6 a result, FBOs cannot offer Mogas in lieu of Avgas but only in addition to Avgas. FBOs at
7 approximately 100 U.S. airports outside of California currently sell Mogas; however, due to state
8 requirements concerning the ethanol content of standard automotive gasoline and other factors,
9 Mogas has not, to date, been available in California.
10 1.8 For purposes of this Consent Judgment,the Parties stipulate that this Court has
11 subject matter jurisdiction over the allegations of Proposition 65 violations contained in the
12 Complaint applicable to each Settling Defendant and personal jurisdiction over each Settling
13 Defendant as to the acts alleged in the Complaint,that venue is proper in the County of Alameda,
14 and that this Court has jurisdiction to enter this Consent Judgment. Each Settling Defendant
15 represents that as of the date it executes this Consent Judgment,no public enforcer is diligently
16 prosecuting a Proposition 65 enforcement action related to lead in its Avgas.
17 1.9 Nothing in this Consent Judgment is or shall be construed as an admission by the
18 Parties of any fact, conclusion of law, issue of law or violation of law, nor shall compliance with the
19 Consent Judgment constitute or be construed as an admission by the Parties of any fact, conclusion
20 of law, issue of law, or violation of law. Nothing in this Consent Judgment shall prejudice, waive
21 or impair any right, remedy, argument, or defense the Parties may have in any other legal
22 proceeding. This Consent Judgment is the product of negotiation and compromise and is accepted
23 by the Parties for purposes of settling, compromising and resolving issues disputed in this action.
24 1.10 CEH and the Settling Defendants now agree in this proposed Consent Judgment to
25 resolve CEH's claims in the Complaint by, inter alia and as set forth specifically below: (a)
26 requiring clear and reasonable warnings via the posting of signs at the airport locations identified in
27 the Complaint; and(b) ensuring that Settling Defendants distribute and sell the airplane fuel with
28 the lowest lead content that is Commercially Available (as defined below).
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[PROPOSED]CONSENT JUDGMENT
1 2. INJUNCTIVE RELIEF
2 2.1 Warnings At Airport Locations. For each airport identified in the Complaint,
3 within 90 days of the date the court enters this Consent Judgment (the "Effective Date"), those FBO
4 Settling Defendant(s) who operate a facility at the airport shall post a warning sign or signs as
5 described below. No airport shall be required to have more than three (3) warning signs posted,
6 regardless of the number of FBO Settling Defendants who operate a facility at that airport. In
7 addition, within 90 days of the Effective Date, for each of the airports identified in the Complaint,
8 those FBO Settling Defendants who operate at each such airport will be responsible for delivering
9 warnings to each residence located within one kilometer of the airport.
10 2.1.1 Warning Signs
11 (a) The warning signs discussed in Section 2.1 shall be at least 24 inches
12 high by 24 inches wide.
13 (b) The sign(s) shall be posted in location(s)previously agreed to by the
14 Parties, or as close thereto as practicable. In general,the signs will be posted in conspicuous
15 locations likely to be seen by the general public, close to major roads or intersections surrounding
16 the airport. Maps showing the locations of the signs at each of the airports where the FBO
17 Defendants operate are attached hereto as Exhibit D.
18 (c) The Parties acknowledge that the FBO Settling Defendants operate at
19 airports owned and operated by third parties (in most cases, governmental entities). In order to
20 effectuate this warning provision, the vast majority of FBO Settling Defendants have already
21 consulted with the airport authorities that control their leases to post the warning signs at the
22 agreed-upon locations. With the exception of a few locations, all of the airport authorities contacted
23 have agreed to permit the FBO Settling Defendants to post the warning signs. With regard to those
24 airport authorities that have not yet agreed to the posting of the warnings, the FBO Settling
25 Defendants operating at those airports will, within 30 days following the Effective Date, make a
26 formal request to post the warnings. If, despite an FBO Settling Defendant's requests, an airport
27 authority refuses to permit posting of any sign on airport property, the FBO Settling Defendant shall
28 inform CEH of that fact. In such an event, the FBO Settling Defendant shall post a sign on its own
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[PROPOSED]CONSENT JUDGMENT
1 property or leasehold,to the extent permitted, in the location most likely to be seen by the general
2 public.
3 2.1.2 Delivered Warnings. The delivered warnings discussed in Section 2.1 shall
4 be on size 8.5 inches by 11 inch paper. Such warnings, if hand-delivered, will be placed on the door
5 handle of each residence within the specified distance of the airport. Otherwise, such warnings will
6 be mailed via First Class U.S. Mail.
7 2.1.3 Warning Language.
8 (a) The warning sign set forth in Section 2.1.1 shall state as follows:
WARNING
9
The area within one kilometer of this airport contains lead, a chemical
10 known to the State of California to cause cancer, birth defects or other
reproductive harm. Lead is contained in the aviation fuel ("Avgas")
1 l that is used by small piston engine aircraft that take off and land at
this airport. People living, working, or traveling near this location
12 will be exposed to lead as aircraft take off and land.
13 For more information, visit www.ceh.org/avgas
14
(b) The delivered warning set forth in Section 2.1.2 shall state as follows:
15
16 WARNING
17 The area within one kilometer of[NAME OF AIRPORT] contains
lead, a chemical known to the State of California to cause cancer,
18 birth defects or other reproductive harm. Lead is contained in the
aviation fuel ("Avgas")that is used by small piston engine aircraft
19 that take off and land at this airport. People living, working, or
traveling near this location will be exposed to lead as aircraft take off
20 and land.
21 For more information, visit www.ceh.org/avgas
22
2.2 Website Content. The website referenced in the warnings shall be maintained by
23
CEH and will include, at a minimum, the following information: (1)an interactive map of each
24
airport covered by this consent judgment showing the boundaries of the airport and the surrounding
25
neighborhood; and(2) information about lead hazards and the use of lead in aviation fuel.
26
2.3 Reduction in Lead Emissions from Aviation Fuel
27
2.3.1 Concentration Of Lead In Avgas
28
- 5 -
[PROPOSED]CONSENT JUDGMENT
1 (a) As of the Effective Date, Settling Defendants shall not purchase for
2 resale in California, distribute for sale in California, or sell in California Avgas that contains a lead
3 concentration of more than 0.56 grams of lead per liter of fuel. In addition, each Settling Defendant
4 shall purchase for resale, distribute, and sell in California Avgas with the lowest concentration of
5 lead approved for aviation use that is commercially available to that Settling Defendant on a
6 consistent and sustained basis at prices and on terms, in quantities and at times sufficient to meet
7 demands of the customers of that Settling Defendant in California("Commercially Available"),
8 including 100VLL once it becomes Commercially Available to that Settling Defendant for the
9 California market.
10 (b) In order to ensure compliance with the lead concentration limits
11 established in this Section 2.3.1, a Settling Defendant shall, upon 30 days' prior written notice,
12 allow CEH(at its own expense)to obtain a sample of the Avgas currently being sold by such
13 Defendant, provided that CEH has not requested a sample from the same Settling Defendant during
14 the preceding 12 months.
15 (c) In the event that CEH concludes that a lower lead alternative to
16 100LL Avgas that is approved for aviation use will be Commercially Available to one or more
17 Settling Defendants on or after November 1, 2015, CEH shall notify each such Settling Defendant
18 as to the basis for CEH's belief at least ninety (90) days in advance of November 1, 2015. Each
19 such Settling Defendant shall, within ninety (90) days of receiving such notice from CEH, either
20 comply with paragraph 2.3.1(a)hereof, or report to CEH the basis for its conclusion that no lower
21 lead alternative to 100LL Avgas that is approved for aviation use is Commercially Available to such
22 Settling Defendant for the California market. Should CEH disagree with a Settling Defendant's
23 assessment about whether any formulation of aviation fuel is approved for aviation use and
24 Commercially Available to that Settling Defendant for the California market, CEH may seek to
25 enforce the requirements of Section 2.3.1(a) in accordance with the procedure set forth in Section
26 3.1. In any such motion,the burden shall be on CEH to establish that a lower lead alternative to
27 100LL Avgas is Commercially Available to that Settling Defendant for the California market. In
28 the absence of any notification from CEH to, and successful enforcement effort by CEH as called
- 6 -
[PROPOSED]CONSENT JUDGMENT
1 for in this Section 2.3.1(c) against, any Settling Defendant, such Settling Defendant's obligation
2 under Section 2.3.1(a)regarding Avgas that contains a lead concentration of less than 0.56 grams of
3 lead per liter of fuel shall not apply until such time as such Avgas is approved for aviation use and
4 Commercially Available to that Settling Defendant.
5 (d) At any time after 100VLL or any other lower lead alternative to
6 100LL Avgas that is approved for aviation use becomes Commercially Available for the California
7 market, any Party may file a motion to modify the terms of Section 2.3.1(a) on the basis that either:
8 (a) Avgas with a lead concentration below 0.45 grams per liter is no longer Commercially Available
9 such that the concentration level should be adjusted upward; or(b)Avgas with a lead concentration
10 at a level of 0.45 is more than 10 percent over the lead concentration level in fuel that is approved
11 for aviation and that is Commercially Available such that the level should be adjusted downward.
12 The Party seeking a modification pursuant to this Section shall provide written notice to all affected
13 Parties and shall meet and confer with all interested parties for a period of not less than 30 days
14 before filing any such motion. The Party bringing a motion to modify this consent judgment shall
15 bear the burden of demonstrating that the concentration limit in Section 2.3.1(a) should be modified
16 pursuant to this Section 2.3.1(d).
17 2.3.2 Distribution of Mogas
18 (a) As of the Effective Date, each FBO Settling Defendant that is not
19 prohibited from offering Mogas (e.g., by insurance, lease, applicable law or regulations, or other
20 conditions) will consider in good faith,but in its sole discretion,whether or not to offer Mogas.
21 (b) Also as of the Effective Date, should any FBO operating in California
22 request that a Distributor Settling Defendant provide the FBO with Mogas,the Distributor Settling
23 Defendant to whom the request is addressed shall make Mogas available to the requesting FBO.
24 Notwithstanding the foregoing, no Distributor Settling Defendant shall be required to provide
25 Mogas if, despite reasonable efforts of the Distributor,the supplier(s) of Mogas available to such
26 Distributor Settling Defendant fail to provide a certificate evidencing aviation product liability
27 coverage for such Mogas or otherwise prohibit the Distributor Settling Defendant from making such
28 Mogas available,the firms storing and transporting such Mogas fail to certify that such Mogas has
- 7 -
[PROPOSED]CONSENT JUDGMENT
] been stored and transported in accordance with aviation industry standards, or an insurance
2 underwriter has not extended liability coverage, on commercially reasonable terms, for its sale by
3 the Distributor Settling Defendant.
4 (c) No more frequently than once in any 12-month period, CEH may
5 request from any Distributor Settling Defendant a report of all requests such Distributor Settling
6 Defendant has received from FBOs in California seeking Mogas. In addition, in the event that CEH
7 has reason to believe that an FBO has requested Mogas, but a Distributor Settling Defendant has
8 declined to provide such Mogas, CEH may request that the Distributor Settling Defendant provide
9 the basis upon which the decision not to provide Mogas was made. In response to either form of
10 request from CEH, the Distributor Settling Defendant shall provide such information within 45 days
11 following such request. CEH may then challenge that determination by motion following notice to
12 the Distributor Settling Defendant and 30 days for the parties to the dispute to meet and confer.
13 3. ENFORCEMENT
14 3.1 Before moving to enforce the terms and conditions of this Consent Judgment with
15 respect to an alleged violation hereof or of Proposition 65 related to Avgas, CEH must follow these
16 procedures:
17 3.1.1 In the event that CEH identifies an airport at which(1) one or more FBO
18 Settling Defendant(s) sells Avgas but at which no warning signs have been posted or leaflets
19 delivered as described in Section 2.1 of this Consent Judgment 90 days after the Effective Date, or
20 (2)there is a violation of Section 2.3 of this Consent Judgment,then CEH or such person shall
21 notify Settling Defendant in writing within 15 days of the date CEH or such other person was
22 informed of or observed the alleged violation(the "Notice of Violation"or"NOV"). The NOV
23 shall be sent to the person(s) identified pursuant to Section 7 herein. The NOV shall at a minimum
24 set forth the date(s)the alleged violation(s)was observed, identify the address(es) of the airport(s)
25 in question, and describe the alleged violation(s)with sufficient detail to allow the recipient to
26 determine the basis of the claim being asserted. The NOV shall allege all violations that could have
27 been raised with respect to each airport in question as of the date of the NOV.
28
- 8 -
[PROPOSED]CONSENT JUDGMENT
1 3.1.2 In the event the recipient corrects the alleged violation(s) within sixty (60)
2 days of receiving the NOV, CEH shall take no further enforcement action with respect to such
3 alleged violation(s) under either this Consent Judgment, Proposition 65, or any other law.
4 3.1.3 In the event the recipient wishes to contest the allegations contained in any
5 NOV, it shall notify CEH of such in writing within thirty(30) days of its receipt of the NOV. The
6 recipient may provide any evidence to CEH or the notifying person in support of its position. In the
7 event that, upon a good faith review of the evidence, CEH or the notifying person agrees with the
8 recipient's position, no further action shall be taken. In the event the recipient provides evidence,
9 and CEH disagrees with the recipient's position, it shall, within thirty (30) days,notify the recipient
10 of such and provide the recipient, in writing, with the reasons for its disagreement. Thereafter, the
11 notifying person and recipient shall meet and confer for a period of fifteen (15) days to attempt to
12 resolve their dispute on mutually acceptable terms; if no such resolution results, CEH may seek to
13 enforce the terms and conditions contained in this Consent Judgment against the recipient. In the
14 event the recipient of an NOV fails to respond to the NOV within the allotted 30 days, CEH may
15 seek to enforce the terms of this Consent Judgment.
16 4. PAYMENTS
17 4.1 Payments by Settling Defendants. On January 9, 2015, or within thirty days after
18 entry of this Consent Judgment, whichever is later,the Settling Defendants shall make a total
19 settlement payment to CEH in the amount of$550,000.00, in full satisfaction and consideration of
20 the monetary component of the alleged violations pursuant to Health& Safety Code section
21 25249.5, et seq., which will be apportioned as set forth below. The amount that each Settling
22 Defendant is responsible for paying is set forth in Exhibit A.
23 4.2 The settlement payment shall be made by check(s)payable to the Lexington Law
24 Group Attorney-Client Trust Fund. The funds paid by the Settling Defendants shall be allocated as
25 follows:
26 4.2.1 $70,000 as a civil penalty pursuant to Health& Safety Code § 25249.7(b),
27 such money to be apportioned by CEH in accordance with Health& Safety Code § 25249.12 (25%
28 to CEH and 75%to the State of California's Office of Environmental Health Hazard Assessment).
- 9 -
[PROPOSED]CONSENT JUDGMENT
1 4.2.2 $106,000 as a payment in lieu of civil penalty to CEH pursuant to Health&
2 Safety Code § 25249.7(b), and California Code of Regulations, Title 11, § 3203(b).
3 (a) Of the amount received as a payment in lieu of civil penalty, CEH or its
4 counsel will hold$5,000 in a trust account pending the delivery of warnings under Section 2.1.
5 Within 120 days of the Effective Date, each FBO Defendant that chooses to seek partial
6 reimbursement of the expenses it incurred for providing the warnings described in Section 2.1.2
7 shall submit to CEH documentation of the expenses it has incurred in delivering those warnings to
8 residences pursuant to Section 2.1. Upon review of that documentation, within 150 days of the
9 Effective Date, CEH shall disburse to each FBO Defendant 50%of the expenses for which it has
10 submitted documentation, provided that the total amount that CEH shall be required to disburse
11 under this provision shall not exceed $5,000. If 50%the aggregate expenses for which FBO
12 Defendants have submitted documentation exceeds $5,000,then CEH shall disburse to each FBO
13 Defendant its proportionately reduced share. If 50%the aggregate expenses for which FBO
14 Defendants have submitted documentation does not exceed$5,000,then the remainder of the
15 $5,000 amount that has not been disbursed to FBO Defendants will be disbursed to CEH as a
16 payment in lieu of civil penalty.
17 (b) CEH will use the funds it receives as a payment in lieu of civil penalty to
18 continue its work educating and protecting people from exposures to toxic chemicals. CEH may
19 also use a portion of such funds to monitor compliance with this Consent Judgment and to purchase
20 and test Settling Defendant's products to confirm compliance. In addition, as part of its Community
21 Environmental Action and Justice Fund, CEH will use four percent(4%) of such funds to award
22 grants to grassroots environmental justice groups working to educate and protect people from
23 exposures to toxic chemicals. The method of selection of such groups can be found at the CEH web
24 site at www.ceh.org/justicefund.
25 4.2.3 $374,000 as reimbursement of a portion of CEH's reasonable attorneys' fees
26 and costs.
27
28
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[PROPOSED]CONSENT JUDGMENT
1 5. MODIFICATION
2 5.1 Written Consent. This Consent Judgment may be modified from time to time by
3 express written agreement of the Parties with the approval of the Court, or by an order of this Court
4 upon motion and in accordance with law.
5 5.2 Meet and Confer. Any Party seeking to modify this Consent Judgment shall
6 attempt in good faith to meet and confer with all affected Parties prior to filing a motion to modify
7 the Consent Judgment.
8 5.3 Addition of Opt-In Defendants. In order to assure consistent treatment of
9 similarly-situated market participants as well as more uniform and widely available warnings for
10 Lead in Avgas, the Parties seek to allow other entities to opt-in to this Consent Judgment in the
11 following process:
12 5.3.1 An entity is eligible to become an Opt-In Settling Defendant to the Amended
13 Consent Judgment, if it(a) is a"person in the course of doing business"as that term is defined in
14 California Health and Safety Code § 25249.11(b); and(b)distributes or offers Avgas for sale in the
15 State of California or has done so in the past. The Opt-In Settling Defendants will either be fixed
16 base operators that offer Avgas for sale (the "FBO Opt-In Settling Defendants") or distributors of
17 Avgas (the"Distributor Opt-In Settling Defendants").
18 5.3.2 No later than 180 days after entry of the Consent Judgment, an entity that
19 wishes to become an Opt-In Settling Defendant shall provide to CEH's Counsel, with a copy to
20 Defense Liaison Counsel, as specified in Section 7, each of the following: (a) its Notice of Intent to
21 Opt-In to Consent Judgment("Notice of Intent") in the form attached hereto as Exhibit B; (b) an
22 executed signature page to the proposed Amended Consent Judgment in the form attached hereto as
23 Exhibit C; (c) any certification required under Section 5.3.3; and(d)the payments required by
24 Section 5.3.4. Within twenty (20) days of its receipt of a Notice of Intent to Opt-In, CEH may
25 reject any such Notice of Intent to Opt-In by providing notice of such rejection to the entity
26 providing the Notice of Intent to Opt-In and to Defense Liaison Counsel and returning to the entity
27 providing the Notice of Intent to Opt-In any and all funds received with such entity's Notice of
28 Intent to Opt-In.
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[PROPOSED]CONSENT JUDGMENT
1 5.3.3 If a proposed Opt-In Settling Defendant has not previously received from
2 CEH a 60-Day Notice of Violation of Proposition 65 related to Lead in Avgas, it shall also provide
3 with its Notice of Intent to Opt-In a certification in the form attached hereto as Exhibit B2. Within
4 twenty (20) days of the expiration of the 180 day opt-in period, CEH, to the extent it has not already
5 done so, shall serve a 60-Day Notice of Violation of Proposition 65 pursuant to Health and Safety
6 Code § 25249.7(d)(1), relating to Lead in Avgas upon each entity that has properly notified CEH of
7 its intent to opt-in to the Consent Judgment.
8 5.3.4 Each FBO Opt-In Settling Defendant shall pay a total of$7,500 for each of
9 its California locations. Each Distributor Opt-In Settling Defendant shall pay a total of$87,500.
10 Payments pursuant to this section shall be made by check(s)payable to the Lexington Law Group
11 Attorney-Client Trust Fund and delivered to Defense Liaison Counsel as set forth in Section 7.2.
12 Within ten(10) days following entry of the Amended Consent Judgment, Defense Liaison Counsel
13 shall deliver the check(s)to CEH's Counsel, who shall then distribute these funds as set forth below
14 with ten(10) days of receipt of the check(s). These funds will be divided as follows:
15 (a) First, for each FBO Opt-In Settling Defendant, the amount of$955 for
16 each of its California locations will be paid as a civil penalty pursuant to Health& Safety Code §
17 25249.7(b), such money to be apportioned by CEH in accordance with Health& Safety Code §
18 25249.12 (25%to CEH and 75%to the State of California's Office of Environmental Health
19 Hazard Assessment). For each Distributor Opt-In Settling Defendant,the amount of$11,113 will
20 be paid as a civil penalty pursuant to Health and Safety Code § 25249.7(b), such money to be
21 apportioned by CEH in accordance with Health& Safety Code § 25249.12 (25%to CEH and 75%
22 to the State of California's Office of Environmental Health Hazard Assessment).
23 (b) The next$75,000 in aggregate payments by Opt-In Settling
24 Defendants shall, subject to Court approval, be paid to CEH's Counsel as compensation for
25 reasonable and necessary time associated with administering the Opt-In program, including sending
26 out 60-Day Notices, entering the Amended Consent Judgment and responding to inquiries regarding
27 the Opt-In program, with any remainder payable to CEH's Counsel as reimbursement of
28 unrecouped attorneys fees and costs incurred in this matter.
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[PROPOSED]CONSENT JUDGMENT
1 (c) Fifty percent(50%) of all remaining payments by Opt-In Settling
2 Defendants of up to $750,000 shall be disbursed to Defense Liaison Counsel, who shall further
3 distribute these funds to each of the Settling Defendants in accordance with the proportional amount
4 that each Settling Defendant paid to its respective counsel for attorneys fees and costs incurred
5 through October 31, 2014, to litigate this action and negotiate and finalize this Consent Judgment.
6 (d) All remaining payments by Opt-In Settling Defendants shall be
7 allocated as a payment in lieu of civil penalty to CEH and as attorneys' fees and costs to CEH's
8 counsel as reimbursement of unrecouped attorneys fees and costs incurred in this matter of up to
9 $400,000, subject to Court approval. Such payments will be divided in the same proportion as the
10 total payment by the Settling Defendants is allocated under Section 4.2. Once CEH's counsel has
11 been reimbursed as set forth above, any remaining payments by Opt-In Settling Defendants shall be
12 divided proportionately between civil penalty and payments to CEH in lieu of a civil penalty in
13 accordance with sections 4.2.1 and 4.2.2 hereof
14 (e) Under no circumstances shall any sum collected under this Consent
15 Judgment be used to defray or reimburse the amount paid by any Settling Defendant or Opt-In
16 Settling Defendant pursuant to this Consent Judgment(as opposed to the attorneys' fees incurred by
17 such Settling Defendant).
18 5.3.5 If after the close of the 180 day Opt-In period CEH has received all
19 paperwork from less than ten(10) Opt-In Settling Defendants, CEH may at its option cancel the
20 Opt-In by providing notice of such rejection to Defense Liaison Counsel and returning to each
21 entity that provided a Notice of Intent to Opt-In any and all funds received with such entity's Notice
22 of Intent to Opt-In.
23 5.3.6 Within 210 days of Entry of the Consent Judgment, and assuming it has
24 received at least one notice of intent to opt-in and has not cancelled the Opt-In pursuant to Section
25 5.3.5, CEH shall file a noticed motion for approval of a proposed Amended Consent Judgment.
26 Such motion will be made in accordance with Health and Safety Code § 25249.7(0(4) and will seek
27 the statutory findings required thereunder. The Amended Consent Judgment filed with the Court
28 may only differ from the Consent Judgment in that it will include the Opt-In Settling Defendants,
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[PROPOSED]CONSENT JUDGMENT
1 attach the Opt-In Settling Defendants' signature pages, and deem the Complaint amended to add the
2 Opt-In Settling Defendants as Defendants in this action upon entry of the Amended Consent
3 Judgment. Except as specifically stated herein, nothing in the Amended Consent Judgment shall
4 modify or in any way affect the rights or obligations of Settling Defendants and CEH as set forth
5 herein. The motion for approval of the Amended Consent Judgment shall be set for hearing at least
6 seventy (70) days after CEH serves the last 60-Day Notice of Violation of Proposition 65 regarding
7 Lead in Avgas on the Opt-In Settling Defendants.
8 5.3.7 Within thirty (30) days following court approval of the Amended Consent
9 Judgment as to an FBO Opt-In Settling Defendant, such party shall comply with the provisions of
10 section 2.1. To the extent another FBO Opt-In Settling Defendant has already complied with the
11 provisions of section 2.1 such that a sign is already posted or warnings have already been delivered
12 to residences at the airport at which the FBO Opt-In Settling Defendant operates,then the FBO Opt-
13 In Settling Defendant shall promptly reimburse its per capita share of the expenses incurred by the
14 FBO Settling Defendant(s) operating at that airport in previously complying with section 2.1,upon
15 presentation of appropriate documentation of such expenses.
16 5.3.8 The deadlines in this Order may be extended by written stipulation between
17 CEH and Defense Liaison Counsel, following Defense Liaison Counsel's consultation with the
18 Settling Defendants with no objections from them remaining unresolved.
19 5.3.9 Nothing in this Consent Judgment shall preclude CEH from resolving any
20 claim against an entity that is not a Settling Defendant on different terms than are contained in the
21 Consent Judgment or the Amended Consent Judgment.
22 5.4 Change in Settling Defendant Status. Following the Effective Date, should any
23 Settling Defendant no longer qualify as a"person in the course of doing business"under Cal. Health
24 & Safety Code § 25249.11(b),then such Settling Defendant shall provide notice to CEH together
25 with proof sufficient to demonstrate that such Settling Defendant no longer so qualifies. CEH shall
26 have 30 days in which to decide whether to dispute the notice provided hereunder. If CEH does not
27 dispute such notice, the parties shall file a stipulation and proposed order or other appropriate
28 motion requesting the Court's approval. Should CEH notify the noticing Settling Defendant that it
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[PROPOSED]CONSENT JUDGMENT
1 disputes the notice,the noticing Settling Defendant may file a motion in accordance with Sections
2 5.1 and 5.2. Upon Court approval, such Settling Defendant will have no further obligations under
3 Section 2 of this Consent Judgment. Should CEH later believe that such Settling Defendant later
4 qualifies as a"person in the course of doing business"under Cal. Health& Safety Code
5 § 25249.11(b), CEH may provide such Settling Defendant with 30 days' notice, after which the
6 parties may proceed by stipulation and order or by motion to resolve any dispute.
7 6. CLAIMS COVERED AND RELEASED
8 6.1 This Consent Judgment is a full, final and binding resolution between CEH on behalf
9 of itself and the public interest and each Settling Defendant, and its parents, subsidiaries, affiliated
10 entities that are under common ownership, directors, officers, employees, and attorneys ("Defendant
11 Releasees"), and each entity to whom they directly or indirectly distribute or sell Avgas, including
12 but not limited to distributors, wholesalers, customers, retailers, franchisees, cooperative members,
13 licensors, and licensees, ("Downstream Defendant Releasees") of any violation of Proposition 65
14 that was or could have been asserted in the Complaint against Settling Defendants,Defendant
15 Releasees, and Downstream Defendant Releasees, based on failure to warn about alleged exposure
16 to Lead contained in Avgas. Notwithstanding the foregoing, no FBO shall be released from any
17 violation of Proposition 65 that was or could have been asserted in the Complaint unless it is a
18 Settling FBO Defendant or an FBO Opt-In Settling Defendant.
19 6.2 This Consent Judgment is a full, final and binding resolution between CEH, in its
20 individual capacity only, and each Settling Defendant, Defendant Releasees, and Downstream
21 Defendant Releasees of any violation of Propostion 65 and any statutory or common law obligation
22 that was or could have been asserted in the Complaint against Settling Defendant, Defendant
23 Releasees, and Downstream Defendant Releasees, based on the sale, use, or distribution of Avgas
24 containing Lead. Notwithstanding the foregoing, no FBO shall be released from any claim that was
25 or could have been asserted in the Complaint unless it is a Settling FBO Defendant or an FBO
26 Opt-In Settling Defendant.
27 6.3 Compliance with the terms of this Consent Judgment by a Settling Defendant
28 constitutes compliance with Proposition 65 with respect to Lead contained in Avgas.
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[PROPOSED]CONSENT JUDGMENT
1 6.4 Nothing in this Section 6 affects CEH's right to commence or prosecute an action
2 under Proposition 65 against any person other than a Settling Defendant, Defendant Releasee, or
3 Downstream Defendant Releasee.
4 6.5 Nothing in Section 6 affects CEH's right to commence or prosecute an action under
5 Proposition 65 against a Downstream Defendant Releasee that: (a) is also a direct customer of a
6 non-settling seller of Avgas as to Avgas sold by such non-settling seller; or(b) sells or offers for
7 sale Avgas without Proposition 65 warnings that comply with the requirements of this Consent
8 Judgment.
9 7. NOTICE
10 7.1 When CEH is entitled to receive any notice under this Consent Judgment,the notice
11 shall be sent by first class and electronic mail to:
12 Mark Todzo, Esq.
Lexington Law Group
13 503 Divisadero Street
San Francisco, CA 94117
14 mtodzo@lexlawgroup.com
15 7.2 When any Settling Defendant is entitled to receive any notice under this Consent
16 Judgment, the notice shall be sent by first class and electronic mail to the person identified in
17 Exhibit A and to the following Defense Liaison Counsel:
18 Trenton H.Norris, Esq.
Arnold&Porter LLP
19 Three Embarcadero Center, 10th Floor
San Francisco, CA 94111
20 trent.norris@aporter.com
21 7.3 Any Party may modify the person and address to whom the notice is to be sent by
22 sending each other Party notice by first class and electronic mail.
23 8. COURT APPROVAL
24 8.1 This Consent Judgment shall become effective upon entry by the Court. CEH shall
25 prepare and file a Motion for Approval of this Consent Judgment and Settling Defendants shall
26 support entry of this Consent Judgment.
27
28
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[PROPOSED]CONSENT JUDGMENT
1 8.2 If this Consent Judgment is not entered by the Court, it shall be of no force or effect
2 and shall never be introduced into evidence or otherwise used in any proceeding for any purpose
3 other than to allow the Court to determine if there was a material breach of Section 8.1.
4 9. ATTORNEYS' FEES
5 9.1 Should CEH prevail on any motion, application for an order to show cause, or other
6 proceeding to enforce a violation of this Consent Judgment, CEH shall be entitled to its reasonable
7 attorneys' fees and costs incurred as a result of such motion or application. Should a Settling
8 Defendant prevail on any motion application for an order to show cause, or other proceeding, the
9 Settling Defendant may be awarded its reasonable attorneys' fees and costs as a result of such
10 motion or application upon a finding by the court that CEH's prosecution of the motion or
11 application lacked substantial justification. For purposes of this Consent Judgment, the term
12 substantial justification shall carry the same meaning as used in the Civil Discovery Act of 1986,
13 Code of Civil Procedure §§ 2016, et seq.
14 9.2 Except as otherwise provided in this Consent Judgment, each Party shall bear its own
15 attorneys' fees and costs.
16 9.3 Nothing in this Section 9 shall preclude a Party from seeking an award of sanctions
17 pursuant to law.
18 10. OTHER TERMS
19 10.1 The terms of this Consent Judgment shall be governed by the laws of the State of
20 California.
21 10.2 This Consent Judgment shall apply to and be binding upon CEH and Settling
22 Defendants, and their respective divisions, subdivisions, and subsidiaries, and the successors or
23 assigns of any of them.
24 10.3 This Consent Judgment contains the sole and entire agreement and understanding of
25 the Parties with respect to the entire subject matter hereof, and any and all prior discussions,
26 negotiations, commitments, or understandings related thereto, if any, are hereby merged herein and
27 therein. There are no warranties, representations, or other agreements between the Parties except as
28 expressly set forth herein. No representations, oral or otherwise, express or implied, other than
- 17 -
[PROPOSED]CONSENT JUDGMENT
1 those specifically referred to in this Consent Judgment have been made by any Party hereto. No
2 other agreements not specifically contained or referenced herein, oral or otherwise, shall be deemed
3 to exist or to bind any of the Parties hereto. No supplementation, modification, waiver, or
4 termination of this Consent Judgment shall be binding unless executed in writing by the Party to be
5 bound thereby. No waiver of any of the provisions of this Consent Judgment shall be deemed or
6 shall constitute a waiver of any of the other provisions hereof whether or not similar, nor shall such
7 waiver constitute a continuing waiver.
8 10.4 Nothing in this Consent Judgment shall release, or in any way affect any rights that
9 any Settling Defendant might have against any other party, whether or not that party is a Settling
10 Defendant.
11 10.5 This Court shall retain jurisdiction of this matter to implement or modify the Consent
12 Judgment.
13 10.6 The stipulations to this Consent Judgment may be executed in counterparts and by
14 means of facsimile or portable document format(pdf), which taken together shall be deemed to
15 constitute one document.
16 10.7 Each signatory to this Consent Judgment certifies that he or she is fully authorized
17 by the Party he or she represents to stipulate to this Consent Judgment and to enter into and execute
18 the Consent Judgment on behalf of the Party represented and legally to bind that Party.
19 10.8 The Parties, including their counsel, have participated in the preparation of this
20 Consent Judgment, and this Consent Judgment is the result of the joint efforts of the Parties. This
21 Consent Judgment was subject to revision and modification by the Parties and has been accepted
22 and approved as to its final form by all Parties and their counsel: Accordingly, any uncertainty or
23 ambiguity existing in this Consent Judgment shall not be interpreted against any Party as a result of
24 the manner of the preparation of this Consent Judgment. Each Party to this Consent Judgment
25 agrees that any statute or rule of construction providing that ambiguities are to be resolved against
26 the drafting Party should not be employed in the interpretation of this Consent Judgment and, in this
27 regard, the Parties hereby waive California Civil Code Section 1654.
28
- 18 -
[PROPOSED]CONSENT JUDGMENT
1 IT IS SO STIPULATED:
2 Dated: , 2014 CENTER FOR ENVIRONMENTAL HEALTH
3
4 By:
Name:
5 Title:
6
7 OTHER SIGNATORIES SHOWN ON EXHIBIT A
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 19 -
[PROPOSED]CONSENT JUDGMENT
1 EXHIBITS
2
3 A. Settling Defendants and Allocation of Payments
4 B. Notice of Intent to Opt-In
5 C. Signature Page of Opt-In Defendant
6 D. Signage Locations for FBO Settling Defendants
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 20 -
[PROPOSED]CONSENT JUDGMENT
1 EXHIBIT A
Settling Defendants
2
3 I. FBO Settling Defendants
4 1. Settling Defendant: Air 88, Inc. d/b/a CrownAir Aviation
5 Airport Locations Identified in Complaint: 1
6 Settlement Payment Amount: $7,029.62
7 Person(s) to Receive Notice Pursuant to Section 7.2:
8
9 Name:
10 Title:
11 Address:
12
13 E-mail:
14
15 IT IS SO STIPULATED.
16 Signed:
17 Name:
18 Title:
19 Date:
20
21
22
23
24
25
26
27
28
- 21 -
[PROPOSED]CONSENT JUDGMENT
1 2. Settling Defendant: Air Rutter International LLC
2 Airport Locations Identified in Complaint: 1
3 Settlement Payment Amount: $7,029.62
4 Person(s) to Receive Notice Pursuant to Section 7.2:
5
6 Name:
7 Title:
8 Address:
9
10 E-mail:
11
12 IT IS SO STIPULATED.
13 Signed:
14 Name:
15 Title:
16 Date:
17
18
19
20
21
22
23
24
25
26
27
28
- 22 -
[PROPOSED]CONSENT JUDGMENT
1
2 3. Settling Defendant: AirFlite, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 23 -
[PROPOSED]CONSENT JUDGMENT
1
2 4. Settling Defendant: Airport Property Partners LLC d/b/a APP Jet Center
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 24 -
[PROPOSED]CONSENT JUDGMENT
1
2 5. Settling Defendant: Amelia Reid Aviation LLC
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 25 -
[PROPOSED]CONSENT JUDGMENT
1
2 6. Settling Defendant: American Airports Corporation
3 Airport Locations Identified in Complaint: 2
4 Settlement Payment Amount: $14,059.24
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 26 -
[PROPOSED]CONSENT JUDGMENT
1
2 7. Settling Defendant: Ameriflyers of California
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 27 -
[PROPOSED]CONSENT JUDGMENT
1
7
8. Settling Defendant: Atlantic Aviation Corporation; Atlantic Aviation FBO, Inc.;
3 Atlantic Aviation of Santa Monica, LP,jointly and severally
4 Airport Locations Identified in Complaint: 4
5 Settlement Payment Amount: $28,118.48
6 Person(s) to Receive Notice Pursuant to Section 7.2:
7
8 Name:
9 Title:
10 Address:
11
12 E-mail:
13
14 IT IS SO STIPULATED.
15 Signed:
16 Name:
17 Title:
18 Date:
19
20
21
22
23
24
25
26
27
28
- 28 -
[PROPOSED]CONSENT JUDGMENT
1
2 9. Settling Defendant: Aviation Consultants, Inc. d/b/a San Luis Jet Center
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 29 -
[PROPOSED]CONSENT JUDGMENT
1
2 10. Settling Defendant: Business Jet Center Oakland, LP
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 30 -
[PROPOSED]CONSENT JUDGMENT
1
2 11. Settling Defendant: California in Nice, Inc. d/b/a Nice Air
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 31 -
[PROPOSED]CONSENT JUDGMENT
1
2 12. Settling Defendant: Castle& Cooke Aviation Services, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 32 -
[PROPOSED]CONSENT JUDGMENT
1
2 13. Settling Defendant: Channel Islands Aviation, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 33 -
[PROPOSED]CONSENT JUDGMENT
1
2 14. Settling Defendant: KaiserAir, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 34 -
[PROPOSED]CONSENT JUDGMENT
1
2 15. Settling Defendant: LancAir Corp. d/b/a San Diego Jet Center
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
l8
19
20
21
22
23
24
25
26
27
28
- 35 -
[PROPOSED]CONSENT JUDGMENT
1 16. Settling Defendant: Landmark Aviation(including Landmark Aviation GSO-SAN,
LLC and Piedmont Hawthorne Aviation, LLC),jointly and
2 severally
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 36 -
[PROPOSED]CONSENT JUDGMENT
1
2 17. Settling Defendant: Loyd's Aviation
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 37 -
[PROPOSED]CONSENT JUDGMENT
1
2 18. Settling Defendant: Maguire Aviation Group, LLC
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 38 -
[PROPOSED]CONSENT JUDGMENT
1
2 19. Settling Defendant: Napa Jet Center, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 39 -
[PROPOSED]CONSENT JUDGMENT
1
2 20. Settling Defendant: Pacific States Aviation Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
-40 -
[PROPOSED]CONSENT JUDGMENT
1
2 21. Settling Defendant: Rossi Aircraft, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 41 -
[PROPOSED]CONSENT JUDGMENT
1
2 22. Settling Defendant: Sacramento International Jet Center, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 42 -
[PROPOSED]CONSENT JUDGMENT
1
2 23. Settling Defendant: Signature Flight Support Corporation
3 Airport Locations Identified in Complaint: 5
4 Settlement Payment Amount: $35,148.10
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 43 -
[PROPOSED]CONSENT JUDGMENT
1
2 24. Settling Defendant: South Bay Aviation, Inc.
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
-44 -
[PROPOSED]CONSENT JUDGMENT
1
2 25. Settling Defendant: Sun Air Jet, LLC
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 45 -
[PROPOSED]CONSENT JUDGMENT
1
2 26. Settling Defendant: Van Nuys Skyways d/b/a Million Air Burbank
3 Airport Locations Identified in Complaint: 1
4 Settlement Payment Amount: $7,029.62
5 Person(s) to Receive Notice Pursuant to Section 7.2:
6
7 Name:
8 Title:
9 Address:
10
11 E-mail:
12
13 IT IS SO STIPULATED.
14 Signed:
15 Name:
16 Title:
17 Date:
18
19
20
21
22
23
24
25
26
27
28
- 46 -
[PROPOSED]CONSENT JUDGMENT
1 II. Distributor Settling Defendants
2 1. Settling Defendant: Air Petro Corporation and World Fuel Services Corporation,
jointly and severally
3
Settlement Payment Amount: $82,831
4
Person(s) to Receive Notice Pursuant to Section 7.2:
5
6
Name:
7
Title:
8
Address:
9
10
E-mail:
11
12
IT IS SO STIPULATED.
13
Signed:
14
Name:
15
Title:
16
Date:
17
18
19
20
21
22
23
24
25
26
27
28
- 47 -
[PROPOSED]CONSENT JUDGMENT
1
2 2. Settling Defendant: Avfuel Corporation
3 Settlement Payment Amount: $82,831
4 Person(s) to Receive Notice Pursuant to Section 7.2:
5
6 Name:
7 Title:
8 Address:
9
10 E-mail:
11
12 IT IS SO STIPULATED.
13 Signed:
14 Name:
15 Title:
16 Date:
17
18
19
20
21
22
23
24
25
26
27
28
- 48 -
[PROPOSED]CONSENT JUDGMENT
1
2 3. Settling Defendant: Eastern Aviation Fuels, Inc.
3 Settlement Payment Amount: $62,500
4 Person(s) to Receive Notice Pursuant to Section 7.2:
5
6 Name:
7 Title:
8 Address:
9
10 E-mail:
11
12 IT IS SO STIPULATED.
13 Signed:
14 Name:
15 Title:
16 Date:
17
18
19
20
21
22
23
24
25
26
27
28
-49 -
[PROPOSED]CONSENT JUDGMENT
1
2 4. Settling Defendant: Downstream Aviation, LP
3 Settlement Payment Amount: $82,831
4 Person(s) to Receive Notice Pursuant to Section 7.2:
5
6 Name:
7 Title:
8 Address:
9
10 E-mail:
11
12 IT IS SO STIPULATED.
13 Signed:
14 Name:
15 Title:
16 Date:
17
18
19
20
21
22
23
24
25
26
27
28
- 50 -
[PROPOSED]CONSENT JUDGMENT
1 EXHIBIT B
2 Notice of Intent To Opt-In to Proposition 65 Consent Judgment
3 Mark Todzo
Lexington Law Group
4 503 Divisadero Street
5 San Francisco, CA 94117
6 Please take notice that the undersigned company desires to become an Opt-In Settling
7 Defendant pursuant to the Consent Judgment approved by the Court on [INSERT DATE OF
8 ENTRY OF CJ] in Center for Environmental Health v. Aerodynamic Aviation, Inc., et al., Alameda
9 County Superior Court No. RG-11-600721. A copy of the Consent Judgment may be found at the
10 Court's web site at http://apps.alameda.courts.ca.gov/domainweb/html/index.html.
11 The undersigned company understands that, in order to participate in the settlement, it must
12 return:
13 (1) this signed Notice of Intent form;
14 (2) the attached Exhibit 1;
15 (3) the signed signature page to be inserted into the Consent Judgment;
16 (4) the payment required under Section 5 of the Consent Judgment;
17 (5) to the extent it has not already been served with a Notice of Violation from the
18 Center for Environmental Health ("CEH") alleging exposures to lead in Avgas,the
19 certification attached hereto as Exhibit 2; and
20 (6) for FBOs, a map showing the location of the signs required by Section 2.1.1(b) of the
21 Consent Judgment, which will be subject to further review and agreement by CEH.
22 All of these documents and the required payment must be received by counsel for CEH at the
23 address listed above on or before [INSERT DATE 90 DAYS AFTER ENTRY OF CJ].
24 If our company has not already been named as a defendant in the pending action, we
25 understand that the complaint will be amended to add our company as a defendant after receipt of
26 the attached settlement documents and after expiration of any 60-day notice period (provided that
27 no public enforcer has commenced and is diligently prosecuting an action regarding the violation).
28
- 51 -
[PROPOSED]CONSENT JUDGMENT
1 The undersigned represents that as of the date of execution of this Notice of Intent to Opt-In,
2 it has not received a 60-Day Notice of Violation of Proposition 65 regarding Avgas from an entity
3 other than CEH that predates a 60-Day Notice of Violation of Proposition 65 regarding Avgas.
4 Please fill out the attached forms completely. Failure to do so could lead to your
5 company being excluded from the Consent Judgment. The information on the attached form will be
6 added to Exhibit A of the Consent Judgment, along with the attached signature page, and a final,
7 fully executed copy will be circulated. The attached, completed forms and required payment
8 must be received by [INSERT DATE 90 DAYS AFTER ENTRY OF CJ].
9
I HAVE READ AND UNDERSTOOD THE CONSENT JUDGMENT AND
10 THIS NOTICE AND AM AUTHORIZED TO EXECUTE THIS DOCUMENT ON
BEHALF OF THE COMPANY LISTED BELOW.
11
12
13
Company Name
14
15
16 Signature
17
18 Printed Name
19
20
Title
21
22
23
24
25
26
27
28
- 52 -
[PROPOSED]CONSENT JUDGMENT
1 Exhibit 1
Opt-In Settling Defendants, Payments and Notice Recipients
2
1. Opt-In Settling Defendant
4
Type or print exact corporate name of Opt-In Settling Defendant
5
6
2. Type of Opt-In Settling Defendant (check one):
7
FBO Opt-In Settling Defendant
8
Distributor Opt-In Settling Defendant
9
10
3. Opt-In Settling Defendant's Settlement Payments:
11
Total Settlement Payment of$ ,to be allocated as between the
12 following:
Civil Penalty: $
13
Attorneys' Fees and Costs: $
14
15
4. Name and Contact Information of Person To Receive Notice:
16 Pursuant to Section 7.2 and Exhibit A of the Consent Judgment,the following persons should
17 receive any notices to Opt-In Settling Defendant required under the Consent Judgment:
18
Name
19
Address
20
21
22 Email address
23
[Optional Second Contact]
24
25 Name
26 Address
27
28 Email address
- 53 -
[PROPOSED]CONSENT JUDGMENT
1 Exhibit 2
Certification
2
1. I am the (title) of _ (the
3
"Company"), and I am authorized to certify on behalf of the Company. The facts stated herein
4
are,to the best of my knowledge and belief, true and accurate.
5
2. At various times during the one-year period prior to the execution of this
6
Certification (the "Relevant Period"), the Company has employed ten(10) or more employees.
7
4. During the Relevant Period, the Company distributed or offered for sale in
8
California Avgas that contained lead.
9
5. No clear and reasonable Proposition 65 warning was provided for the Avgas
10
distributed or offered for sale by the Company.
11
6. The Company further certifies that as of the date it executes this Certification: (a) no
12
public enforcer is diligently prosecuting an action related to lead in the Avgas that it distributed or
13
offered for sale; and (b) it does not have a pending 60-Day Notice of Violation of Proposition 65 as
14
to lead in Avgas that it distributed or offered for sale from any other person or entity. "Pending" in
15
the prior sentence means that such 60-Day Notice has not been withdrawn, resolved by judgment or
16
resolved by settlement agreement.
17
7. The Company understands that this Certification: (a) is being provided to the Center
18
for Environmental Health ("CEH") pursuant to Evidence Code § 1152 to form the basis for a
19
Certificate of Merit to support a 60-Day Notice of Intent to Sue pursuant to Proposition 65, (b) will
20
not be used by CEH for any other purpose; and (c) will not be shared by CEH with any person other
21
than as required by law.
22
Executed this day of , 2014.
23
24
25 Signature
26 Printed Name
27
Title
28
- 54 -
[PROPOSED]CONSENT JUDGMENT
1 EXHIBIT C
2
3
4 Dated: , 2014
5 Defendant Name
6 Signature
7
8 Printed Name
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 55 -
[PROPOSED]CONSENT JUDGMENT
EXHIBIT D
Signage Locations for FBO Settling Defendants
EhIb\ 5
LEASEHOLD AGREEMENT
THIS LEASEHOLD AGREEMENT(this"Lease")is made as of the 15th day of October,
2020(the"Effective Date")by and between the CITY OF NAPLES AIRPORT AUTHORITY, a political
subdivision of the State of Florida(the"Authority")and Gulf Coast Commercial Corporation,a Florida
corporation (the "Tenant") (the Authority and Tenant collectively the "Parties"). The Parties hereby
mutually covenant,agree and promise as follows:
1. PARTIES.
The Authority's address,telephone number and email are:
160 Aviation Drive North
Naples, Florida 34104
Phone:239-643-0733
Email: administration@flynaples.com
Tenant's address,telephone number and email are:
699 Fifth Avenue South
Naples,FL 34102
Phone:239-280-2707
Email:josephm(7innonfifth.com
2. PURPOSE.
The purpose of this Lease is for Tenant to lease from the Authority a parcel of land more
particularly described in Exhibit"A"attached hereto and made a part of this Lease(the"Premises"). The
Premises is located on the Naples Municipal Airport(the"Airport"). Tenant covenants,agrees, promises
and intends to construct improvements on and adjacent to the Premises as required by the Authority in
accordance with the terms and conditions of this Lease.
3. STATEMENT OF LEASE.
In consideration of the payment and performance by Tenant of all rental payments,
covenants and other amounts and obligations under this Lease, the Authority does hereby lease to Tenant
the Premises, together with any improvements now existing or hereafter constructed thereon or adjacent
thereto,subject to all of the terms and conditions hereof.
4. LEASE TERM.
The Authority hereby leases the Premises to Tenant for a term (the"Lease Term")which
shall commence upon the Effective Date and shall continue uninterrupted until the earlier of(a)thirty(30)
yeas from Tenant's satisfactory completion of construction of, and obtaining a certificate of occupancy
from the City of Naples for, the Approved Hangar/Connector Facilities and all related improvements in
accordance with Subsection 11.A of this Lease or(b)thirty(32)years and six(6)months from the Effective
Date of this Lease(the"Expiration Date"), unless the Lease Term shall be sooner terminated as provided
in this Lease.
NAA Form(revised April 2020)
- I -
Upon expiration or termination of this Lease as herein provided,Tenant hereby waives any
demand for possession of the Premises or any structure or improvement then situated thereon or adjacent
thereto, including without limitation improvements made at Tenant's expense,and Tenant agrees to vacate
and return the Premises and all structures and improvements situated thereon or adjacent thereto to the
Authority peaceably, quietly and in good order and condition, ordinary wear and tear excepted, and shall
deliver the keys to the Premises to Authority at its offices described above. Time is of the essence under
this Lease.
5. RENT.
A. Rental Rate. The rental rate to be paid by Tenant for the Premises under this
Lease shall be$0.60 per square foot per annum. Tenant hereby covenants and agrees to pay this stated per
square foot rental rate for the Premises,a parcel of land agreed by the Parties to contain 40,699 square feet.
The rental payments from the Effective Date to the immediately following October 1st of this Lease shall
be made in equal monthly installments of$2,034.95(the"Base Rental"),plus applicable sales or other tax,
all due in advance on the first day of every calendar month (the "Due Date") during the Lease Term.
Payment shall be made in cleared funds by cash.check or electronic transfer regularly and monthly without
notice from Authority during the Lease Term.
B. Increase in Rental Rate. The rental rate under this Lease shall at no time be less
than the Base Rental. The Authority and Tenant,however,agree and stipulate that the rental rate under this
Lease may be unilaterally increased by the Authority, annually, effective October 1st of each year as set
forth in the Authority's Rates and Charges on file in the offices of the Authority's Executive Director
(collectively the"Rates and Charges"). Tenant understands and agrees that adjustments in the rental rates
hereunder as set forth in the Rates and Charges may be based on, among other things, (i) changes in the
United States Department of Labor, Bureau of Labor Statistics,Consumer Price Index (the Index for U.S.
City Average for Urban Consumers), (ii) leasehold valuation changes determined by appraisals of the
Premises or other property at the Airport or(iii)such other factors or methods as deemed appropriate from
time to time by the Authority in its sole discretion. The Rates and Charges are incorporated into this Lease
and are made a part hereof Tenant acknowledges and agrees that the Rates and Charges may be
implemented and amended from time to time by the Authority in its sole and absolute discretion without
notice to Tenant.
C. Place of Payment. Unless otherwise authorized in writing by the Authority, all
rents and fees shall be made payable to the "City of Naples Airport Authority," and mailed by first class
mail, postage prepaid, wired or personally delivered, to the Administrative Offices at 160 Aviation Drive
North,Naples,Florida 34104,or such other address as the Authority may designate, in writing.
6. LATE FEES AND CHARGES.
A. Right to Legal Proceedings. In the event Tenant fails to deliver to the Authority
the rent,taxes,fees,amounts or information as required to be paid or delivered under the provisions of this
Lease so that they are received by the Authority later than the tenth(10th)day of each calendar month,the
Authority reserves the right to commence any and all legal proceedings, including default or eviction
proceedings, in accordance with the laws of the State of Florida.
B. Interest Due. On each rental payment received after the Due Date under this Lease,
and for all other amounts due but unpaid under this Lease,Tenant shall pay interest on such unpaid amounts
at the maximum interest rate permitted by law in the State of Florida;provided,however,that this provision
shall not be construed to create an obligation for Tenant to pay a usurious rate of interest to Authority.
NAA Form(revised April 2020)
-2 -
C. Authority's Right to Terminate. The inclusion of an obligation for Tenant to pay
the Authority late charges and interest shall not preclude the Authority from terminating this Lease for
Tenant's non-payment of rent, amounts due for fees, taxes, expenses or charges, or from enforcing any
other provisions contained herein.immismommomir
_
7. RIGHT OF TERMINATION OR RELOCATION. The Authority reserves and has the
right to terminate all or portions of this Lease upon giving Tenant not less than six (6) months' written
notice, if termination is deemed necessary by the Authority in its sole discretion to implement any phase or
portion of any master or strategic plan of the Airport adopted by Authority;provided; however,before such
termination of this Lease, the Authority may make available and offer to Tenant in its sole discretion, for
the balance of the Lease Term, upon the same terms and conditions as set forth in this Lease, alternate
premises located within the Airport, including structures and improvements equal to or greater in size than
the area of the Premises. After the Authority gives Tenant notice of its intent to terminate this Lease
pursuant to this provision,the Authority shall elect in its sole discretion one of the following options:
(i) Relocation. In the event that the Authority elects to relocate Tenant
pursuant to this provision,the actual out-of-pocket costs of moving Tenant's equipment and other property
to the alternate premises shall be paid by the Authority;or
(ii) Termination. The Authority may fully terminate this Lease without
relocating Tenant, in which case, as Tenant's exclusive remedy, and in lieu of any other claims for costs,
expenses and damages of any kind related to the Authority's election to terminate,Tenant shall be entitled
to compensation for the fair market value of the leasehold interest and improvements on the Premises taken
for the balance of the Lease Term, as determined by the Authority or its representative. Tenant hereby
waives, disclaims and releases any and all claims for costs, expenses and damages against the Authority
related to termination of this Lease hereunder,except for the compensation provided for in this Subsection
7(ii).
8. PERMITTED USE OF PREMISES.
Conditioned upon Tenant's payment of the rental rate under this Lease, applicable taxes,
fees and all other amounts due hereunder and performance of all covenants, agreements, obligations and
conditions required under this Lease and applicable law,Tenant shall and may continue to peaceably enjoy
the Premises. Such quiet enjoyment is further subject to and conditioned upon Tenant adhering to all terms
and conditions of this Lease, including,without limitation,the following covenants and obligations:
A. Aircraft Hangar. Subject to the terms and conditions of Section 9 of this Lease,
Tenant agrees that the Premises shall be used only for the operation of an aircraft hangar, including office
space and/or related aviation facilities; and Tenant acknowledges, covenants and agrees that no other use
or occupancy is authorized or shall be permitted. The Authority retains full control over the activities
conducted on the Premises by modifying,amending and interpreting the Authority's Rules and Regulations
(as hereinafter defined)and Minimum Standards(as hereinafter defined).
B. Non-Exclusive Use. Tenant, as well as Tenant's authorized subtenants, agents,
employees and customers, are permitted non-exclusive use of all runways, taxiways, taxilanes, roads,
rights-of-way and driveways to and from the Premises in common with other airport users. Tenant has the
right to free access, ingress to and egress from the Premises. The Authority may,at any time,temporarily
or permanently close or consent to the closing of any roadway or other right-of-way for such access,ingress
or other area of the Premises presently or hereafter used as such. In such a case,a means of access, ingress
and egress reasonably equivalent to that formerly provided shall be substituted and concurrently made
available.
NAA Form(revised April 2020)
-3 -
C. Exclusive Use of Premises for Aircraft Hangar. Tenant agrees that Tenant (and
any subtenants of Tenant approved by the Authority in accordance with the terms and conditions of this
Lease) shall only use the Premises as an aircraft hangar, by which is meant a place to store airworthy
aircraft, equipment related to such aircraft and related aircraft management office space. Tenant
acknowledges and agrees that(i)notwithstanding any subtenants of Tenant approved by the Authority,the
Premises shall at all times be used primarily for storage of airworthy aircraft owned by Tenant and/or under
Tenant's exclusive control and/or maintained by Tenant as part of Tenant's operation of a Limited SASO
(as hereinafter defined)and (ii) if Tenant for any reason fails to store airworthy aircraft owned by Tenant
and/or under Tenant's exclusive control and/or as part of Tenant's operation of a Limited SASO in the
Premises for a continuous period in excess of six (6) months, then such failure shall constitute a non-
monetary default subject to the remedies set out in Section 27 of this Lease.
9. LIMITS ON USE
A. Commercial Aviation Enterprise. Notwithstanding anything in this Lease to the
contrary, except for a Limited SASO, the operation of any commercial enterprise on the Premises is
prohibited;provided,however,it is specifically agreed that nothing herein shall be construed as prohibiting
Tenant from allowing its own employees, or an aircraft warranty service provider approved by the
Authority, from performing services on Tenant's own aircraft in its Approved Hangar Facilities on the
Premises so long as the performance of all such services shall be conducted in accordance with Federal
Aviation Regulations, the Authority's Rules and Regulations, the Authority's Minimum Standards and
applicable law.
Subject to compliance with Federal Aviation Regulations, the Authority's Rules and
Regulations,the Authority's Minimum Standards and applicable law,the operation of the following limited
commercial enterprises on the Premises shall be permitted: (i) independent aircraft sales facility; (ii)
independent aircraft maintenance operations facility(aircraft maintenance);(iii)independent aircraft repair
facility (avionics or instrument maintenance); (iv) aircraft rental facility; (v) aircraft charter facility; (vi)
flight training facility; (vii) multiple use/service facility; and (viii) other independent commercial
aeronautical activities approved in writing in advance by the Authority in its sole discretion including aerial
photography,aerial advertising,air cargo operations and aircraft storage rentals(each a"Limited SASO").
B. No Exclusive Rights. it is specifically understood and agreed that nothing herein
contained shall be construed as granting or authorizing the grant of an exclusive right to Tenant of any
aeronautical activity within the meaning of section 308 of the Federal Aviation Act.
C. Activity. Tenant(and any subtenants of Tenant approved by the Authority in
accordance with the terms and conditions of this Lease)shall not engage in any aeronautical activities
other than those permitted and described in Sections 8 and 9 of this Lease.
D. Rule Compliance. Tenant shall not engage in any activities that violate or depart from
the provisions and intent of the Authority's Rules and Regulations and Minimum Standards.
E. Statutory Compliance. Tenant agrees that it will not use,nor permit the Premises to be
used, for any unlawful purpose, defined to include conduct or activity prohibited by Federal, State, local
law or ordinance or the Authority's Rules and Regulations and Minimum Standards.
F. Spatial Limitations. This Lease confers no rights to the subsurface of the Premises or
any areas adjacent thereto more than five(5)feet below the ground level or to the airspace above the existing
NAA Form(revised April 2020)
-4 -
EXHIBIT A
(BASIS OF BEARINGS) N
N LINE OF THE S 1/2 OF SECTION 35,
TOWNSHIP 49 SOUTH, RANGE 25 FAST
N89'34 26'E 3461.95' — — /` - — — —
_ lie.
NW CORNER OF 5 1/2 OF SECTION 35, 1-)'I
TOWNSHIP 49 SOUTH, RANGE 25 EAST• N ry
COLLIER COUNTY, FLORIDA o�i
co
LINE TABLE I 0 25 50 100
LINE BEARING DISTANCE i j
Lt S87'I6'24"E 29.82' CI TATjpN t (INTENDED DISPLAY SCALE: 1"=100')
I
I L2 S31'16'55"E 40.96' POINT
L3 S45'25'06"E 167.71' I
L4 N61'33'15"W 35.71' P.O.B. L1
L5 N30'55.26"W 40.09' co
<CD
L6 N0333'19"E 44.16' HERTZ
L7 N18'03'17"E 50.11' EXISTING
L8 N05'26'26"W 24.25' BUILDING
10'
NOTES:
1. THIS IS NOT A BOUNDARY SURVEY, NOR IS IT / 10'
INTENDED TO BE USED AS ONE. DESCRIBED
2. COORDINATES AND HORIZONTAL DATA SHOWN ARCEL OF LAND
HEREON ARE IN FEET AND ARE PROJECTED 9 SQ.FT./0.934 AC.±)
ONTO THE FLORIDA STATE PLANE COORDINATE
SYSTEM, EAST ZONE, NORTH AMERICAN DATUM 9
OF 1983 (NAD83), 2011 ADJUSTMENT. O
3. BEARINGS SHOWN HEREON ARE BASED ON THE
NORTH LINE OF THE SOUTH 1/2 OF SECTION I.
35, TOWNSHIP 49 SOUTH, RANGE 25 EAST,
WHEREIN SAID NORTH LINE BEARS
N.89'34'26"E. \�A' -J SIX /
4. PARCEL CONTAINS 40,699 SQUARE FEET OR `f" °
0.934 ACRES, MORE OR LESS. jf �0.`
E 5. P.O.C. = POINT OF COMMENCEMENT
0 6. P.O.B. = POINT OF BEGINNING (i5` �Q`
a 7. SQ. FT./AC. = SQUARE FEET/ACRES 1
i 8. -W- = PROPOSED WATERLINE \� 44
0
0
N
DESCRIPTION
A PARCEL OF LAND
a SECTION 35, TOWNSHIP 49 SOUTH, RANGE 25 EAST /
a COLLIER COUNTY, FLORIDA
,;, A PARCEL OF LAND LYING IN THE SOUTH HALF OF SECTION 35, TOWNSHIP NOT A SURVEY
49 SOUTH, RANGE 25 EAST COLLIER COUNTY, FLORIDA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: I HEREBY CERTIFY, TO THE BEST OF MY KNOWLEDGE
COMMENCING AT THE NORTHWEST CORNER OF SAID SOUTH HALF OF SK SKETCH E F BELERE PREPAREDTHE IN ACCORDANCE WITH THE
a SECTION 35, THENCE N.89'34'26"E. ALONG THE NORTH LINE OF SAID APPLICABLE PROVISIONS OF CHAPTER 5J-17.05,
1 SOUTH HALF OF SECTION 35, A DISTANCE OF 3,461.95 FEET; THENCE FLORIDA ADMINISTRATIVE CODE, PURSUANT TO
a S.00'25'34"E. DEPARTING SAID NORTH LINE, A DISTANCE OF 792.76 FEET CHAPTER 472, FLORIDA STATUTES.
zTO THE POINT OF BEGINNING. Digitally signed
t FROM SAID POINT OF BEGINNING, THENCE S.87'16'24"E., A DISTANCE OF G u y P. _ _
29.82 FEET; THENCE S.31'16'55"E., A DISTANCE OF 40.96 FEET; THENCE by Guy_P_Adams
i S.45'25'06"E., A DISTANCE OF 167.71 FEET; THENCE S.44'34'38"W., Aj �F�M rr� f State
DISTANCE OF 258.80 FEET; THENCE N.61'33'15'W., A DISTANCE OF 35.711A c, FE3916NARL '•'q 3M_� t�1��F'IPFF4 §o State
rL FEET; THENCE N.30'55'26"W., A DISTANCE OF 40.09 FEET; THENCE IL R A ERTIFICATE i'1 49.0
2 N.03'33'19"E., A DISTANCE OF 44.16 FEET; THENCE N.15'24'09"E., A /I I p}e 0I of Florida
o DISTANCE OF 177.61 FEET; THENCE N.18'03'17"E., A DISTANCE OF 50.11`r 1.
.FEET; THENCE N.05'26'26"W., A DISTANCE OF 24.25 FEET TO THE POINT mate: 20-2'I.O$13
o OF BEGINNING. F I Y I�WITHC JT THE SIGNATURE AND ORIGINAL
,., I I 0 A FLORID�L6IC I�SE Ue4 JO'
o CONTAINING 40,699 SQUARE FEET OR 0.934 ACRES, MORE OR LESS. AND MAPPER
SKETCH AND DESCRIPTION
J OH
S `� JOHNSON3 ANENGINEERING,OCO 2 NAPLES AIRPORT AUTHORITY
2350 STANFORD COURT SECTION 35,TOWNSHIP 49 SOUTH,RANGE 25 EAST
NAPLES, FLORIDA 341 INC.I
PHONE: (239) 434-0333 COLLIER COUNTY,FLORIDA
FAX: (239) 334-3661
ENGINEERING E.B. #642 do L.B. #642 DATE PROJECT NO. HIE NO. SCALE SHEET
04-11-19 20066087-034 35-49-25 1"=100' 1 OF 1
ASSIGNMENT AND ASSUMPTION OF LEASEHOLD AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASEHOLD AGREEMENT (this
"Assignment') is made effective as of the 21st day of January,2021 (the"Effective Date"),by and among
GULF COAST COMMERCIAL CORPORATION,a Florida corporation("Assignor")whose address
is 699 Fifth Avenue South, Naples, FL 34102, 531 BUILDING, LLC, a Florida limited liability
company ("Assignee")whose address is 699 Fifth Avenue South, Naples, FL 34102, and the CITY OF
NAPLES AiRPORT AUTHORITY, a political subdivision of the State of Florida ("Authority") whose
address is 160 Aviation Drive North, Naples, Florida 34104 (Assignor, Assignee and the Authority
collectively the"Parties").
RECITALS
WHEREAS, Assignor is the present holder as "Tenant" of a leasehold interest under that certain
Leasehold Agreement between the Authority and Assignor, dated October 15,2020(the"Lease");
WHEREAS, Assignor desires to assign the Lease to Assignee, and Assignee desires to accept the
assignment from Assignor and assume all of the obligations of Assignor as"Tenant"under the Lease;
WHEREAS,the Authority consents to the assignment to,and assumption by,Assignee of the Lease
in accordance with the terms and conditions of this Assignment;
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other
good and valuable consideration,the receipt and sufficiency of which are acknowledged,effective as of the
Effective Date,the Parties hereby represent, warrant,undertake,covenant and agree as follows:
TERMS
1. RECITALS. The above recitals are true and correct and incorporated herein by reference.
2. ASSIGNMENT AND ASSUMPTION. By execution of this Assignment, (a) Assignor
hereby assigns,transfers, sets over and conveys to Assignee all of Assignor's right,title and interest in and
to the Lease, and (b) Assignee hereby accepts the assignment of the Lease from Assignor and hereby
assumes all of the obligations of Assignor as"Tenant"under the Lease for the entire term thereof. On and
after the Effective Date, Assignee covenants and agrees that Assignee shall be required to (i)pay all rent,
charges, fees, taxes, interest, penalties and other amounts due from the "Tenant" under the Lease and (ii)
perform all covenants, terms, conditions and obligations binding on the "Tenant" under the Lease. The
Lease is hereby amended such that the term "Tenant" as used in the Lease shall be deemed to refer to
Assignee.
3. CONSENT TO ASSIGNMENT AND WAIVER OF RIGHT OF FIRST REFUSAL.
Subject to and conditioned upon the terms, conditions, representations, warranties and covenants of this
Assignment, the Authority hereby (a)consents to the assignment of the Lease to Assignee hereunder, (b)
agrees that Assignor shall have no further obligations under the Lease after the Effective Date and (c)
waives and releases the Authority's right of first refusal pursuant to Subsection 2 i.B of the Lease as to this
Assignment; provided, however, such consent, agreement, waiver and release by the Authority hereunder
is expressly limited solely to the assignment of the Lease from Assignor to Assignee under this Assignment
on the Effective Date and shall not be deemed a consent, agreement, waiver or release by the Authority to
any future assignment or other transactions concerning the Lease.
4. REPRESENTATIONS, WARRANTIES AND HOLD HARMLESS. Assignor and
Assignee hereby jointly and severally represent,covenant and warrant to the Authority that(a)the Lease is
in full force and effect and, after the assignment and assumption hereunder, is binding upon Assignee, (b)
Assignor is not in default under any of its covenants or obligations under the Lease,(c)Assignor is the sole
holder of the leasehold interest granted under the Lease and has good right and title to assign the same to
Assignee hereunder, (d)the Authority has heretofore fully performed all of its obligations under the Lease
and (e) Assignor and Assignee have no defenses, claims or offsets against the Authority or against the
-I-
AMENDMENT OF LEASEHOLD AGREEMENT
THI$AMENDMENT OF LEASEHOLD AGREEMENT(this"Amendment')is made effective as
of the I(, day of 5e 1t b.r , 2021 (the "Effective Date"), by and among 531 BUILDING, LLC, a
Florida limited liability company("Tenant")whose address is 699 Fifth Avenue South,Naples,FL 34102,
and the CITY OF NAPLES AIRPORT AUTHORITY, a political subdivision of the State of Florida
("Authority")whose address is 160 Aviation Drive North,Naples,Florida 34104(Tenant and the Authority
collectively the"Parties").
RECITALS
WHEREAS, Tenant is the present holder as "Tenant" of a leasehold interest under that certain
Leasehold Agreement, dated October 15, 2020 (the "Original Lease"), between the Authority and Gulf
Coast Commercial Corporation, a Florida corporation("Initial Lessee"), as assigned and assumed by that
Assignment And Assumption Of Leasehold Agreement, dated January 21, 2021 (the "Assignment"),
between Initial Lessee, Tenant and the Authority (the Original Lease, as assigned and assumed by the
Assignment,is collectively the"Lease");
WHEREAS, the Parties wish to amend the Lease pursuant to the terms and conditions of this
Amendment;
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other
good and valuable consideration,the receipt and sufficiency of which are acknowledged,effective as of the
Effective Date,the Parties hereby represent,warrant, undertake,covenant and agree as follows:
TERMS
1. Recitals. The above recitals are true and correct and incorporated herein by reference.
2. Revised Exhibit "A" — Sketch and Description of Premises. By execution of this
Amendment, the Parties agree that Exhibit "A" referred to under Section 2 of and attached to the Lease
(i.e., the sketch and description of the "Premises" prepared by Johnson Engineering, Inc., dated 4/19/19)
shall be amended,restated and replaced in its entirety by the Exhibit"A"attached to this Amendment and
incorporated herein by reference (i.e., the sketch and description of the "Premises" prepared by Guy P.
Adams,dated 8/13/21). Pursuant to the Exhibit"A"attached to this Amendment,the Parties acknowledge
and agree that the"Premises"demised under the Lease continues to contain 40,699 square feet of land.
3. Representations, Warranties and Hold Harmless. Tenant hereby represents and warrants
(a)that the Lease,as amended hereby,is binding upon Tenant,its successors and assigns,(b)Tenant is not
in default under any of its covenants or obligations under the Lease, as amended hereby, (c)Tenant is the
sole holder of the leasehold interest in the "Premises"described under the Lease, as amended hereby, (d)
that the Authority has heretofore fully performed all of its obligations under the Lease,as amended hereby,
and(e)that Tenant has no defenses,claims or offsets against the Authority or against the obligations of the
"Tenant"under the Lease,as amended hereby. Tenant does hereby release and hold harmless the Authority,
its commissioners, officers, employees,attorneys, insurers and agents from and against any claim, action,
suit,demand,cost,expense or liability of any kind,whether known or unknown, relating in any way to the
Lease, as amended hereby, or the administration thereof, or the communications and business dealings
between Tenant and the Authority through the Effective Date hereof.
4. Miscellaneous. If any provision of this Amendment shall be held by a court of competent
jurisdiction to be illegal,void or unenforceable,then such provision shall be of no force and effect,and the
illegality or unenforceability of such provision shall have no effect upon, and shall not impair the
enforceability of, any other provision of this Amendment. This Amendment shall be construed and
-1-
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enforced in accordance with the statutes and common law of the State of Florida,except to the extent federal
law controls. Any proceeding between the Parties relating to this Amendment shall be held in a court of
competent jurisdiction in the State of Florida, Collier County, and the Parties agree to be subject to the
personal jurisdiction of such courts. To the extent that there is any inconsistency or conflict with any of the
provisions contained in this Amendment with the Lease,the provisions set forth in this Amendment shall
govern the understanding between the Parties. All terms and conditions in the Lease not specifically
referenced in or modified by this Amendment shall and do remain in full force and effect and are hereby
ratified by the Parties. This Amendment may be executed in counterparts by manual signatures or
authenticated by any electronic signatures or other method effective under applicable law, each of which
shall be deemed an original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed and delivered
as of the Effective Date.
% TENANT:
•// / /,
531 BUILDING,LLC,
Wit ess#l: C-u,,m c, a Flori i ited li ility rpm 1
U 1
-LIZAc. L• � 41 By: , L ( - -
Witness#2:/A'iP d;/4 f (omit - Philip J. p, Manager
AUTHORITY:
CITY OF NAPLES AIRPORT AUTHORITY,
Witness#1: a political subdivision of the State of Florida
Witness#2: ,l/eg„:y ,«,AAC_ Christopher A. Rozansky, Executive Director
Approved as to form
and le al sufficiency:
William L. Owens
Counsel to Authority
obligations of the"Tenant"under the Lease. Assignor and Assignee do hereby jointly and severally release
and hold harmless the Authority, its commissioners, officers, employees, attorneys, insurers and agents
from and against any claim, action, suit, demand, cost,expense or liability of any kind, whether known or
unknown, relating in any way to the Lease, as assigned and assumed hereby,or the administration thereof,
or the communications and business dealings between Assignor,Assignee and/or the Authority through the
Effective Date hereof.
5. MISCELLANEOUS. If any provision of this Assignment shall be held by a court of
competent jurisdiction to be illegal, void or unenforceable, then such provision shall be of no force and
effect,and the illegality or unenforceability of such provision shall have no effect upon,and shall not impair
the enforceability of, any other provision of this Assignment. This Assignment shall be construed and
enforced in accordance with the statutes and common law of the State of Florida,except to the extent federal
law controls. Any proceeding between the Parties relating to this Assignment shall be held in a court of
competent jurisdiction in the State of Florida, Collier County, and the Parties agree to be subject to the
personal jurisdiction of such courts. To the extent that there is any inconsistency or conflict with any of the
provisions contained in this Assignment with the Lease, the provisions set forth in this Assignment shall
govern the understanding between the Parties. All terms and conditions in the Lease not specifically
referenced in or modified by this Assignment shall and do remain in full force and effect and are hereby
ratified by the Parties. This Assignment may be executed in counterparts by manual signatures or
authenticated by any electronic signatures or other method effective under applicable law, each of
which shall be deemed an original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Assignment to be executed and delivered
as of the Effective Date. •
y J ASSIGNOR:
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4-1,LO GULF COAST COMMERCIAL CORPORATION,
Wi ess#l: 'ii--i:,A 4... ( C c �� a Flo a corporal n
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#2• ��� p Philip J. C , President
Witness �. (�47,�'IC� � L IH n
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, C /c ASSIGNEE:
' •, / c;,�.�r: 531 BUILDING,LLC,
ss#l: ( �,r/J/,tx / . (c c.,Wita FI ► invite li Ili comp
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/�.Lf1L /' By:
Witness#2: Afkle,A L I CE`' Philip J. a , Manager
..-Wic:A___ C () AUTHORITY:
CITY OF NAPLES AIRPORT AUTHORITY,
Witness#1: filar a polit► bdivis'on of the State of Florida
✓" By:
' ness#2: yi,C Christopher A. Rozansky, Executive Director
Approved as to form
and dal sufficie►c ':
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t9174--2C:(2‹.----:."--
William L. Owens
Counsel to Authority
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U.S. Department of Transportation
Federal Aviation Administration
Office of the Administrator
800 Independence Avenue, S.W.
Washington, DC 20591
Dear Administrator Dickson:
As Members of the U.S. House of Representatives, we write to express deep
concern regarding the Federal Aviation Administration's Report to Congress
dated April 14, 2020, on its findings pursuant to Sections 188 and 173 of the
FAA Reauthorization Act of 2018 (P.L. 1 1 5-254). After conducting a detailed
review of the FAA's report, we find it wholly inadequate, failing to meet the
mandate in the law.
As you know, Section 188 of the FAA Reauthorization Act of 2018 mandated
the FAA to "evaluate alternative metrics to the current average day-night level
standard, such as the use of actual noise sampling and other methods, to
address community airplane noise concerns." Further, the law directed the FAA
to provide Congress with a detailed report on its findings. On April 14, 2020,
the FAA released the report, and in addition to reporting on Section 188, the
FAA also used this report to address Section 173, which states: "Not later than
1 year after the date of enactment of this Act, the Administrator of the Federal
Aviation Administration shall complete the ongoing evaluation of alternative
metrics to the current Day Night Level (DNL) 65 standard." It is our assessment
that this report entirely fails to seriously analyze and consider alternative
metrics to the DNL 65 standard.
First and foremost, the report fails to evaluate well-respected and widely used
alternatives, including: the Cumulative Noise Equivalency Level ("CNEL") metric,
which California uses to evaluate aircraft and other noise exposures; the ISO
1996-1 :2016 ("Acoustics - Description measurement and assessment of
environmental noise"), an international standard specifically adopted to identify
community noise concerns in general, but airplane noise in particular; and the
European alternative to the DNL metric, known as the DENL, or the day-
evening-night level metric. The latter noise metric disaggregates evening and
night noise levels to address the fact that communities experience noise events
differently during the day, the evening and the nighttime sleeping hours. A
credible evaluation of alternative noise metrics and the 65 DNL standard would
have addressed the correlation between each metric and the known noise
impact on communities in a NextGen environment, similar to a comparison
done in an FAA-funded 2011 report on replacement metric research. However,
in lieu of providing a thorough evaluation, the report merely describes DNL and
a number of alternative metrics, while offering an incomplete and at times
inaccurate comparison of DNL to those alternatives.
Furthermore, there are glaring absences in the FAA's assessment that render it
incomplete. For example, the report fails to analyze complaint data despite the
fact that the FAA itself utilized complaint data as a lawful alternative metric in
its 2013 federal court case against Helicopter Association International, Inc.
Failing to mention any role for complaint data would appear in contrast to
FAA's Noise Complaint Initiative begun in the last 12 months, allowing direct
reporting of noise events to FAA. The report also lacks the scientific nuance the
agency demonstrated in 201 9, when the FAA funded a research project at MIT
to evaluate metrics and assess the impact of frequent overflights; that study
concluded that the Number-Above (NA) metric provided an effective correlation
to aircraft noise impacts on the public, but is scarcely mentioned in this report.
Even commonly used metrics are overlooked, such as the metrics for
construction noise and the concept of sones. Construction noise metrics are
regularly employed across the United States and capture greater noise nuance
than the DNL standard. Sones represent the perception of loudness and help
capture aviation noise annoyance. In our estimation, the FAA report merely
stands by the agency's existing DNL metric and enumerates existing
methodology with no regard to the value of improved and updated alternatives.
As a result, the FAA is effectively treating supplemental noise metrics as an
asterisk to noise measurement rather than a comprehensive toolbox from
which to address noise impacts. The FAA relegates supplementary metrics to an
ancillary role by asserting that, "No single noise metric can cover all
situations," and that while the "DNL metric is FAA's decision-making metric,
other supplementary metrics can be used to support further disclosure and aid
in the public understanding of community noise effects." Nowhere in the report
do we find clear guidance on how and when supplemental noise metrics could
be used in flight procedure design decisions or to alleviate existing noise - even
as the public health impact of noise continues to spread. U.S. standards to
protect human health from airplane noise are not only glaringly ineffective, they
also trail Western Europe's. In its 2018 Noise Guidelines for European countries,
the World Health Organization recommended using a threshold of 45 dB or
lower for day and evening aircraft noise - that constitutes 20 dB less than the
DNL metric employed by the FAA, which also does not disaggregate evening-
levels from night. Far from trailing Western European nations, the U.S. should
be demonstrating global leadership to mitigate the public health effects of
aircraft noise.
When the FAA Reauthorization Act of 2018 was passed into law, Congress
sought to address community airplane noise concerns by utilizing the scientific
and research arms of the FAA to substantively evaluate alternative noise metrics
with an eventual eye to having those metrics inform FAA decision-making.
There is widespread consensus that the DNL metric remains an inadequate
measure because it averages noise over a 24-hour period, thereby understating
the impact of individual noise incidences. Thus, the congressional intent
underpinning Sections 188 and 173 was to address the inadequacy of the DNL
metric and nudge the FAA towards a more comprehensive measure. The report
fails to understand that intent. Instead, we have received a delayed and highly
insufficient report that does not address community impacts of noise.
Therefore, we, the undersigned Members of Congress, insist that the FAA
return to the drawing board and meaningfully evaluate alternative metrics to
the current DNL 65 average, not just dismiss or ignore them, and include the
potential for the use of such metrics in the United States. Furthermore, we seek
formal responses to the questions in the appended Citizens' Response Report,
a Technical Report to the FAA 's April 2020 Report on Alternative Noise Metrics
(Reauthorization Act of2018, Sections 173 and 188). The concerned
constituents who raised these eleven questions live in communities directly
affected by increased noise from NextGen implementation. We request formal
responses to each question.
Without a thorough and nuanced analysis of the DNL standard and better, more
accurate metrics, progress on aircraft noise will remain elusive. It is therefore
imperative that the FAA meet its congressional mandate and begin the report
anew while also addressing our constituents' questions. We look forward to the
agency's response, including its plans to follow through on our request.
5x bi
Petition Section Number
WARNING: IT IS AGAINST THE LAW: For anyone to sign any petition with any name other than
his or her own or to knowingly sign his or her name more than once for the same measure or to sign
such petition when not a registered elector. DO NOT SIGN THIS PETITION UNLESS YOU ARE
A REGISTERED ELECTOR: Do not sign this petition unless you have read or had read to you the
text of the proposal in its entirety and understand its meaning.
The following five registered electors shall represent the signers in all matters related to the
petition:
Name of Elector Mailing Address
JoAnn Dorio-Burton 713 Snowberry Avenue Longmont, CO 80503
Scott Stewart 229 Grant Street Longmont, CO 80501
Douglas Wray 2339 Bowen Street Longmont, CO 80501
John March 1325 Lefthand Drive Longmont, CO 80501
Sally Soule 2831 Mountain View Avenue Longmont, CO 80503
Full text of the proposed Charter amendment:
ARTICLE XVII.—LONGMONT AIRPORT ACCOUNTABILITY AND LOCAL CONTROL
ACT
17.1 Purpose -
To provide improved transparency and local control regarding airport expansion and taxpayer-
funded airport subsidies.
17.2 Findings -
The people of Longmont hereby make the following findings with respect to the Longmont
Municipal Airport, also known as Vance Brand Airport, and herein referred to as the"Airport":
a. The General Fund budget includes services typically associated with local government such
as police, fire,parks,recreation,youth and senior services,planning, code enforcement, building
inspection, library, museum and economic development. In addition,the General Fund includes
support services that are provided to all of the other City funds and departments, including
human resources, finance, city attorney, information services, facilities maintenance, city clerk
and city manager.
b. The Airport Enterprise Fund has received both direct and indirect taxpayer-funded subsidies
from the General Fund,without citizen consent. Indirect subsidies are granted through discounts
1
Petition Section Number
WARNING: IT IS AGAINST THE LAW: For anyone to sign any petition with any name other than
his or her own or to knowingly sign his or her name more than once for the same measure or to sign
such petition when not a registered elector. DO NOT SIGN THIS PETITION UNLESS YOU ARE
A REGISTERED ELECTOR: Do not sign this petition unless you have read or had read to you the
text of the proposal in its entirety and understand its meaning.
to fees that are incurred by the airport, for example, the annual discount of the Administrative
Transfer Fee.
c. Longmont citizens should decide whether or not to grant subsidies to the airport from the
General Fund.
d. Longmont citizens should decide whether or not to allow airport expansion. Airport
expansion results in increased negative,unregulated environmental impacts to the community. •
This Initiative ensures that Longmont citizens widely approve of airport expansion projects as a
precondition of expansion projects.
e. Longmont citizens should decide whether to restore local control of the airport or instead
accept federal grant funds,which prevents local control. When Airport Improvement Program
(AIP) grant monies are utilized for capital improvements,the City of Longmont agrees to abide
by onerous provisions called"grant assurances,"which prevent local control to regulate aircraft
noise and other pollution, including leaded aviation fuel emissions. General Aviation airports
that are not federally funded can regulate some aircraft operations, including limits on hours of
operation and nighttime curfews.
17.3 Policy-
It shall hereby be the policy of the City of Longmont that prior to approval or acceptance of any
airport subsidy from either the General Fund or Airport Improvement Program(AIP)grant, the
City of Longmont shall obtain approval by a two-thirds vote of the electorate at a Regular
Municipal Election.
17.4 Retroactive Application-
In the event this measure is adopted by the voters, its provisions shall apply retroactively as of
the date the measure was found to have qualified for placement on the ballot.
2
Petition Section Number
WARNING: IT IS AGAINST THE LAW: For anyone to sign any petition with any name other than
his or her own or to knowingly sign his or her name more than once for the same measure or to sign
such petition when not a registered elector. DO NOT SIGN THIS PETITION UNLESS YOU ARE
A REGISTERED ELECTOR: Do not sign this petition unless you have read or had read to you the
text of the proposal in its entirety and understand its meaning.
Registered Elector's First Name Last Name Place of Residence Date Signed
Signature (Street Address)
1
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Board of Collier County Commissioners
Rick LoCastro Andy Solis, Esq. Burt L. Saunders Penny Taylor William L. McDaniel, Jr.
District 1 District 2 District 3 District 4 District 5
May 10, 2022
Chairwoman Karen Beatty
CRA Advisory Board
3299 Tamiami Trail E, Unit 103
Naples, Florida 34112
Dear Chairwoman Beatty,
To confirm the consensus taken at the CRA Workshop with the Board of County Commissioners:
Meetings of the Bayshore Gateway CRA Advisory Board will be held in the BCC boardroom from this
date forward.
Meetings of the Bayshore Beautification Board will not be required to be held in the BBC Chambers.
Sincerely,
r?fil
Penny Taylor
Board of County Commissioners
District 4 Commissioner
3299 Tamiami Trail East, Suite 303•Naples, Florida 34112-5746•239-252-8097•FAX 239-252-3602