Open Letter to Fairhope Airport Authority
Attention Josh Myrick, Attorney
Joe McEnerney, Chairman
Jack Burrell, City Council
Thank you for providing the Ripp Report with the information we requested. The summary outlined in this letter contains information from your documents: A. Request for Advisory Opinion from the Alabama Ethics Commission, Dennis R. Bailey. B. Notice of Request for Bids for Airport Ground Lease. C.Ground Lease and Operating Agreement, Dec 17th 2015. D. Ground Lease and Operating Agreement, Dec. 21, 2015. E. Memorandum of Lease Dec. 17th 2015. F. Ethics Commission Advisory Opinion No. 2016-04.
These documents raise a myriad of questions and are not consistent with your public statements. For simplicity sake I am only addressing the issue at hand, the ground lease. Let me stress that the other questions, not addressed, in this correspondence will remain part of the complaint. This is a rebuttal to the time line the authority produced and the Lagniappe articles, https://lagniappemobile.com/bond-bid-blogger-fuss-fairhope/ and http://lagniappemobile.com/authority-explains-board-member-won-hangar-lease-bid/.
The Ripp Report encourages you to print your response to this letter in Lagniappe since readers are anxiously awaiting your response.
Please be advised we are sending a copy of this correspondence to all authorities that we have previously contacted.
FAIRHOPE AIRPORT AUTHORITY MARCH 11 2017
GROUND LEASE AND OPERATING AGREEMENT/NOTICE OF REQUEST FOR BIDS FOR AIRPORT GROUND LEASE, RFP.
On Dec. 16th 2015, attorney Dennis Bailey, representing Mr. Ray Hix, requested an Advisory Opinion from the Alabama Ethics Commission. Page 3, paragraph 5 reads:
“The lease document has been approved by counsel for the Authority and is ready to be signed. A copy of the agreement is attached hereto as EXHIBIT C dated Dec.21/15?”
How is this possible? The request predates EXHIBIT C.
“However, the Authority and Mr. Hix have agreed that the execution of the lease is contingent upon a favorable Advisory Opinion from the Commission.”
The lease was executed Dec. 17th 2015 the Advisory Opinion was March 3 2016— after the fact.
On page 2 paragraph 5, the authority issued a sample lease available for inspection, a requirement of the FAA.
“A copy of the sample lease prepared by legal counsel for the Authority is attached as EXHIBIT B.”
This lease is different than the recorded Dec. 17 Lease and the Exhibit C Lease Dec. 21. EXHIBIT B resembles a lease executed March 2015 to Cedar Creek Leasing LLC, Article VI titled Rents and Fees match, and are different than the Dec. 17th Lease and the Exhibit C Lease.
The same letter, page 5 under questions, three questions are asked of the Ethics Commission— all three reference EXHIBIT C as being the lease in question “THAT IS SEEKING APPROVAL.”
The Authority entered into on Dec. 17th 2015, a Ground Lease and Operating Agreement. This Agreement is not the same as EXHIBIT C that was contained within the Request For Advisory Opinion. There are many inconsistencies in the EXHIBIT C Lease— starting with the date of the document, Dec. 21st 2015. The Authority entered into and executed a Lease and Memorandum of Lease on Dec. 17 2015. The Memorandum was recorded with the Baldwin County Judge of Probate on Dec. 28, 2015, which is contrary to the information contained in the Request for the Advisory Opinion and the Advisory Opinion given.
Another— of several, differences in the leases is Article XLVII,. The Agreement dated Dec. 17th, Article XLVII title is Limited Personal Guaranty, where as the Dec. 21st copy, sent to Ethics Commission, Article XLVII reads Personal Guaranty.
The Advisory Opinion dated Feb.3rd 2016 says in part:
“A lease document has been drafted and approved: however, it has not been signed contingent upon the Commission rendering this Advisory Opinion.”
The last paragraph reads:
“A copy of any contract/lease agreement entered into between the Board and the Airport Authority must be filed with the Alabama Ethics Commission within ten days of its having been entered into.”
Per this statement, the executed Lease of Dec. 17, 2015 should have been submitted to the Commission no later than Dec. 27, 2015. It was presented March 8 2016 AFTER the Advisory Opinion March 3 2016 and over 60 days late.
Mr. Evans, General Counsel for the Ethics Commission; “In February of this year,” Feb. 3 2016,
“we rendered an Advisory Opinion regarding this issue to Dennis Bailey, the attorney, for Ray Hix, jr. We approved the scenario that was set out in that request for an opinion, and on Feb, 8th 2016 Mr. Bailey provided us with an executed copy of that lease,”
dated Dec.17 2015— this IS NOT EXHIBIT C.
The question would be, if the lease had already been executed on Dec 17 2015, and was different than the submitted unsigned EXHIBIT C, Dec 21st, then how could EXHIBIT C, provided by Mr. Bailey be executed?
It is different than the lease, Dec. 17 2015, that has already been executed and recorded as a Memorandum? The purpose of providing an unsigned lease to the Ethics Commission was to have an approval on that specific lease, EXHIBIT C?
The Notice of Request for Bids for airport ground lease, RFP, under Terms and Conditions of the biding process, number 2. reads:
“The winning bidder has fifteen months from the date of the winning bid to complete construction of the hanger on the South Hanger pad.”
That would be 2/17/17.
This is not consistent with what is stated in the executed lease of Dec. 17, 2015; ARTICLE XI “IMPROVEMENTS”; Initial Improvements–
“Upon receipt of the Authority Executive’s approval of plans and specifications, the Operator shall have fifteen (15) months to complete the construction and be in operation.”
The lease language, referencing construction completion, is counter to the language of the RFP. They are suppose to be one in the same.
The submitted unsigned lease, EXHIBIT C, Dec. 21st, page 14 reads:
“Within a reasonable time period but in any event not longer than months upon receipt of the Authority Executive’s written approval of said plans, specifications, and construction time schedule.”
At what date was written approval given and why are leases different?
The hanger in question had been in a construction limbo with only the foundation completed. The Cedar Creek Hanger was further along, however stalled. Construction has begun on both hangers since the subject has become public. The Hix Hanger is still not completed. It is 50 to 60% completed as of this date. Completion date will not comply with the RFP or any of the leases in question.
The ground lease dated Dec. 17 2017 and the unsigned ground lease dated Dec. 21, 2015, EXHIBIT C do not conform to the Terms and Conditions of the RFP set by the Fairhope Airport Authority. The EXHIBIT C lease is not the executed lease sent to the Ethics Commission Feb 8th 2016. The executed lease was signed Dec. 17th almost 3 months prior to the required Ethics Advisory Opinion, Feb. 3rd 2016.
Per the information that has been provided, both directly and publicly published on the Fairhope Airport Authority website, the lease in question, which was executed and memorandum of such recorded, would be null and void. The authority did not follow it’s own RFP. Nor did they adhere to the Ethics Advisory Opinion. The production of three different leases, EXHIBIT B, EXHIBIT C and the Dec. 17/15 lease, for one RFP, certainly would confuse anyone.
WHO’S ON FIRST ??
The PUBLIC anxiously awaits your answer.