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02/08/1994 Audit AUDIT REPORT MONROE COUNTY AIRPORT OPERATING REVENUES February 8, 1994 ,,_ • GOUNry ° 1:15.6660 ; cot Ilk 64;oSS,•• f 1�II6 Q; COUNI1' ,F I,_ `•4�; Prepared By: Internal Audit Department Clerk of the Circuit Court Danny L. Kolhage, Clerk Monroe County, Florida r_ r .. �ppUNTyC1.g4 Q6J�y,Curpt'A.ct pJ /tr ti ;N t oar 3rdi�F COUNT'i. �- Oannp I•. 1.otjage BRANCH OFFICE CLERK OF THE CIRCUIT COURT BRANCH OFFICE 3117 OVERSEAS HIGHWAY MONROE COUNTY 88820 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 500 WHITEHEAD STREET PLANTATION KEY, FLORIDA 33070 TEL. (305) 289-6027 KEY WEST, FLORIDA 33040 TEL. (305) 852-7145 TEL. (305) 292-3550 February 8, 1994 li The Honorable Danny L. Kolhage Clerk of the Circuit Court Re: Audit of Key West International Airport Operating Revenues Dear Mr. Kolhage: _ The Internal Audit Department has prepared an audit report concerning an audit of airport operating revenues for Key West International Airport and Marathon Airport. The audit was limited to a review of airport lease agreements and appropriate tests of compliance with applicable Federal, State, and Local laws, regulations, policies, plans, and procedures. The audit was also conducted to verify Florida Department of Revenue Sales and Use Tax determinations and to evaluate the adequacy and effectiveness of established internal controls related to Airport revenues. In general, improvements are needed in established internal control policies and procedures concerning compliance with laws and regulations, timeliness of lease executions, separation of duties, elimination of duplicate accounting procedures, and timeliness of deposits. The accompanying audit report is provided for your information. The audit report has been distributed to the Board of County Commissioners, the County Administrator, the Community Services Division, the Airport Department, and the audit firm of Kemp and Green, CPA's. Additional copies of the report will be provided and/or distributed upon your request. Full auditee responses to the findings presented within the report are included as exhibits at the back of the report. Sincerely, 9 Charles J. Mansen, Jr. Internal Audit Director L_ AUDIT REPORT AIRPORT OPERATING REVENUES TABLE OF CONTENTS Page#'s { S 1 Executive Summary S 1 - S2 I. Scope and Objectives 1 - 2 II. Background 2 - 3 III. Conclusions 3 - 4 IV. Details Of Audit Findings A. General Compliance with Federal Laws, Regulations, and Grant Assurances 4 - 5 B. Access to Landing Area from Off-Site Location 5 - 6 • C. East Martello Tower 6 - 7 D. Fair Market Value Rental of Non-Aeronautical Leases of Airport Property 7 - 8 E. Standard Economic Index for Periodic Readjustment of Rental Rates and Fees 8 - 10 F. Standard Rates and Charges 10 - 11 G. Revised Minimum Standards for Commercial Aeronautical Activities by FBO And Other Aeronautical Service Providers at Monroe County Airports 11 - 13 H. Rights of First Refusal Defined by FAA as Exclusive Right 14 I. Flying Club May Be A Fixed Base Operator 14 - 16 J. Aircraft Shelter Rental May Be A Fixed Base Operator 16 K. Delegation of Authority to a Fixed Base Operator 17 - 18 i PRELIMINARY AUDIT REPORT AIRPORT OPERATING REVENUES TABLE OF CONTENTS Page#'s IV. Details Of Audit Findings: L. Subordination of Title 18 - 19 M. Rental Rates of Several Leases Differ From Standard Rates And Charges 19 - 20 N. Untimely Execution of Board Approved Leases 21 - 22 O. Gift Shop Gross Revenue Fees 22 - 23 P. Compliance With Lease Requirements For Periodic Rental Increases 23 - 25 Q. Billings For Additional Space 25 - 26 R. Certain Airline Rentals Are Exempt From Florida Sales Taxes 26 - 27 S. Florida Department of Revenue Sales Tax Adjustment 28 - 29 T. Deposit And Recording of Airport Revenues 29 - 31 U. Review of Airport Ledgers Maintained By OMB Airport Finance And The Clerk's Finance Department 31 - 33 V. Segregation of Duties 33 - 34 W. Miscellaneous Billing Errors 34 - 35 V. Exhibits A. Specific Language Required By Standard DOT Title VI Assurances Al B. Specific Language Required By Economic Nondiscrimination Assurance B 1 C. Specific Language Required By 49 CFR Part 27, Nondiscrimination Assurance On The Basis Of Handicap In Programs And Activities Receiving Or Benefiting From Federal Financial Assistance Cl ii !^1 PRELIMINARY AUDIT REPORT AIRPORT OPERATING REVENUES TABLE OF CONTENTS Page#'s IV. Exhibits D. Comparison of Sample CPI Increases To National CPI and Miami/Ft. Lauderdale CPI D 1 E. US Dept of Labor, Bureau of Labor Statistics Consumer Price Index Miami-Fort Lauderdale, Florida El F. Memorandum from County Administrator - Consumer Price Index Fl G. Standard Rates and Charges Gl -G2 H. Memorandum from Clerk's Finance Director - Timeliness of Airport Cash Receipts H1 I. County Administrator's Response I1 - I6 J. Monroe County Clerk's Response J1 - J2 K. FAA Response to Monroe County's Request for Determinations K1 -K2 L. Request for FAA Determinations Concerning Audit Findings Ll -L2 M. Opinion of FBO Attorney Concerning Consent & Estoppel M1 N. County Attorney Memorandum Concerning Special Report On Airport Revenue Diversion by Spiegel & McDiarmid N1 O. Special Report On Airport Revenue Diversion by Spiegel & McDiarmid 01 - 013 P. Request For County Attorney Opinion East Martello Museum Status P1 EXECUTIVE SUMMARY AUDIT OF AIRPORT OPERATING REVENUES I. Scope and Objectives: A. At the request of the Clerk of the Circuit Court, the Internal Audit Department has completed an audit of Airport Operating Revenues for Key West International and Marathon Airports. The Internal Audit Department limited the scope of this audit to operating revenues billed and collected for the period from October 1, 1989 through March 31, 1993 as the audited period. B. The audit was performed to evaluate compliance with Federal, State, and Monroe County laws, regulations, policies and procedures and to determine whether operating revenues are accounted for efficiently and effectively. II. Background: A. Airport Management is responsible for implementing or renewing airport leases or initiating termination of Airport leases with the approval of the Board of County Commissioners. Sign leases may be approved/executed by the County Administrator. The Office of Management and Budget (OMB) Airport Finance Office will be assuming the lease duties effective immediately. All leases are approved by the BOCC. The OMB Airport Finance Office in conjunction with Airport Management monitors the collection of Airport Operating Revenues. B. The Office of Management & Budget (OMB) Airport Finance Office is responsible for billing Airport tenants and monitoring the receipt of payment. The OMB Airport Finance Office uses a computer system to record billings and collections in billing/receipt summaries for each Airport tenant. Billing/receipt summary printouts are maintained in an Airport ledger book. The OMB Airport Finance Office is also responsible for forwarding collections to the Clerk's Finance Office with attached copies of related billing invoices. C. The Clerk's Finance Department is responsible for depositing and recording the receipt of Airport Revenues in the proper County Accounts (Official Records). On request, the Clerk's Finance Department provides the OMB Airport Finance Office with appropriate financial reports. D. The OMB Airport Finance Office uses the Clerk's Finance Department reports to reconcile the OMB Airport Ledger to the Clerk's Official Records. S1 EXECUTIVE SUMMARY AUDIT OF AIRPORT OPERATING REVENUES II. Background: (continued) E. The Clerk's Finance Department also records billings and payments forwarded from the OMB Airport Finance Office in a manually-posted Airport Ledger, for the purpose of preparing monthly Accounts Receivable Aging Reports. The Clerk's Finance Department notifies OMB Airport Finance staff of any identified discrepancies, including old outstanding balances. The Clerk's Finance Department is in the process of converting to a computer processing system for recording billings and collections for Airport leases. III. Audit Conclusions: All sample revenues billed and collected by OMB Airport Finance were traced to deposit and recording by the Clerk's Finance Department. No material misstatements or errors were found; however, improvement in compliance with Federal laws and regulations is needed and other internal control weaknesses were found. No material misstatements of revenue were found which would be a condition reportable to the FAA. However, FAA determinations should be sought in reference to compliance questions related to certain specific agreements. IV. Summary of Findings: A. In general, Airport leases are apparently not in full compliance with various Federal laws and regulations and grant related sponsor assurances. Leases may need to be rewritten to comply with all applicable Federal laws and regulations. Certain policies, procedures, standards and rates may also be in non-compliance;. Non-compliance with Federal laws and regulations could prevent the County from obtaining or keeping Federal Financial Assistance. B. In addition to the need to monitor changes in sales tax rules concerning Franchise Fees (Gross Receipt Fees), County staff should review current Florida Department of Revenue Sales and Use Tax Rules to determine which portions of leased Airport property are exempt from Sales & Use Tax. Sales taxes were collected and remitted on rentals that are exempt from sales taxes. C. Various leases were not timely executed by Airport vendors. County staff should seek earlier negotiations with vendors and/or include execution deadline clauses into leases. D. Duties of the OMB Airport Finance Office should be segregated to separate billing, collection, and reconciliation functions related to Airport Revenues. S2 EXECUTIVE SUMMARY AUDIT OF AIRPORT OPERATING REVENUES IV. Summary of Findings: (continued) E. The Clerk's Finance Director, Airport Management, and OMB Airport Finance Office staff should coordinate efforts to eliminate duplicate accounting procedures performed by both the Clerk's Finance Department and the OMB Airport Finance Office. F. Various receipts were not timely processed, but the responsible department could not be identified, because on documentation available during the audit, unidentifiable date stamps or missing date stamps did not allow tracing of responsibility for delays to a specific County department and employee. S3 i I I I AUDIT REPORT AIRPORT OPERATING REVENUES I. Scope and Objectives: A. At the request of the Clerk of the Circuit Court, the Internal Audit Department has completed an audit of Airport Operating Revenues for Key West International and Marathon Airports. The Internal Audit Department limited the scope of this audit to operating revenues billed and collected for the period from October 1, 1989 through March 31, 1993 as the audited period. B. The audit was performed to evaluate compliance with Federal, State, and Monroe County laws, regulations, policies and procedures and to determine whether operating revenues are accounted for efficiently and effectively. C. The Internal Audit Department examined: 1. Federal laws and regulations applicable to leases of Airport property. 2. Florida Statutes relative to collection of sales tax. 3. Florida Sales & Use Tax Rules. 4. The Monroe County Code, local ordinances, resolutions, policies, and procedures. 5. Minutes of the Monroe County Board of County Commissioners. 6. Airport department policies, procedures, standards and rates. 7. Leases of airport property for both Airports. 8. Billing and collection of Airport operating revenues and sales taxes. 9. Deposit and recording of Airport operating revenues and sales taxes. 10. Accounts receivable records. 11. Deposits in escrow. 12. Journal entries. 13. Reporting of operating revenues. 1 1 I. Scope and Objectives: (continued) D. The following personnel were interviewed during the audit to examine the relationship of the respective departments to revenue generating activities of the Monroe County Airports. 1. Division Director of Community Services 2. County Attorney 3. Director of Airports 4. Marathon Airport Manager 1-I 5. Director of Management & Budget 6. Clerk's Finance Director 7. Office of Management & Budget employees 8. Clerk's Finance Department employees II. Background: A. All leases of Airport property must be approved by the Board of County Commissioners, executed by the Mayor. B. All leases of Airport property must be reviewed for legal sufficiency by the County I Attorney. The County Attorney is also responsible for the process of termination of leases in default. C. Airport Management is responsible for implementing or renewing airport leases or L._ initiating termination of Airport leases with the approval of the Board of County Commissioners. Sign leases may be approved/executed by the County Administrator. The Office of Management and Budget (OMB) Airport Finance Office will be assuming the lease duties effective immediately. All leases are approved by the BOCC. The OMB Airport Finance Office in conjunction with Airport Management monitors the collection of Airport Operating Revenues. D. The Office of Management & Budget Airport Finance Office is responsible for billing Airport tenants and monitoring the receipt of payment. The OMB Airport Finance Office - uses a computer system to record billings and collections in billing/receipt summaries for each Airport tenant. Billing/receipt summary printouts are maintained in an Airport ledger book. The OMB.Airport Finance Office is also responsible for forwarding collections to the Clerk's Finance Office with attached copies of related billing invoices. 2 it II. Background: (continued) E. The Clerk's Finance Department is responsible for depositing and recording the receipt of Airport Revenues in the proper County Accounts (Official Records). On request, the Clerk's Finance Department provides the OMB Airport Finance Office with appropriate computer generated Trial Balances and detailed Revenue Sub-ledger reports. F. The OMB Airport Finance Office uses the Clerk's Finance Department reports to reconcile the OMB Airport Ledger to the Clerk's Official Records. G. The Clerk's Finance Department also records billings and payments forwarded from the OMB Airport Finance Office in a manually-posted Airport Ledger, for the purpose of preparing monthly Accounts Receivable Aging Reports. The Clerk's Finance Department notifies OMB Finance staff of any identified discrepancies, including old outstanding balances. The Clerk's Finance Department is in the process of converting to a computer processing system for recording billings and collections for Airport leases. III. Conclusions: All sample revenues which were billed and collected by OMB Airport Finance were traced to deposit and recording by the Clerk's Finance Department. No material misstatements or errors were found; however, the following weaknesses were found in the current system of internal controls: A. In general, Airport leases are apparently not in full compliance with various Federal laws and regulations and grant related sponsor assurances. Leases may need to be rewritten to comply with all applicable Federal laws and regulations. Certain policies, - procedures, standards and rates may also be in non-compliance. Non-compliance with Federal laws and regulations could prevent the County from obtaining or keeping Federal Financial Assistance. B. In addition to the need to monitor changes in sales tax rules concerning Franchise Fees (Gross Receipt Fees), County staff should review current Florida Department of Revenue Sales and Use Tax Rules to determine which portions of leased Airport property are exempt from Sales & Use Tax. Sales taxes were collected and remitted on rentals that are exempt from sales taxes. C. Various leases were not timely executed by Airport vendors. County staff should seek earlier negotiations with vendors and/or insert execution deadline clauses into leases. D. Duties of the Airport Finance Office should be segregated to separate billing, receipt, and reconciliation functions related to Airport Revenues: 3 III. Conclusions: (continued) E. The Clerk's Finance Director, Airport Management, and OMB Airport Finance Office staff should coordinate efforts to eliminate duplicate accounting procedures performed by both the Clerk's Finance Department and the OMB Airport Finance Office. F. Various receipts were not timely processed, but the responsible department could not be identified, because on documentation available during the audit, unidentifiable date stamps or missing date stamps did not allow tracing of responsibility for delays to a specific County department and employee. G. No material misstatements of revenue were found which would be a condition reportable to the FAA. However, FAA determinations should be sought in reference to compliance questions related to certain specific leases and agreements. IV. Audit Findings~ __ A. General Compliance with Federal Laws, Regulations, and Grant Assurances: Condition 1. Seventy-two Airport leases and agreements for both Key West International and Marathon Airport were reviewed for compliance with Federal laws, regulations, and grant related sponsor assurances. Forty-one leases were apparently not in full compliance because of incomplete language or lack of language required by Federal grant assurances. In reference to Civil Rights assurances, twenty-three of the reviewed { leases erroneously refer to 49 CFR Part 15, which relates to the Federal Tort Claims Act. The leases should refer to 49 CFR Part 21, which relates to Effectuation Of Title VI Of The Civil Rights Act Of 1964. Criteria 1. Federal DOT Title VI Assurances (Civil Rights) require that all leases of premises or agreements granting the rights to offer nonaeronautical services to the public incorporate specific language concerning Civil Rights assurances. (See Exhibit A) 2. Federal laws, regulations, and sponsor assurances require specific language in leases granting the rights to offer services and commodities essential to flight operations. Language required by sponsor assurances includes: a. General requirements of compliance with all applicable Federal laws, regulations, executive orders, policies, guidelines and requirements as they relate to the application, acceptance, and use of Federal funds. b. The Federal DOT Title VI Assurance (Civil Rights). (See Exhibit A) c. Requirements of 49 U.S.C.A. §2210(a) ECONOMIC NONDISCRIMINATION. (See Exhibit B) d. Requirements of 49 CFR Part 27, §27.9(a) Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance. (See Exhibit C) 4 A. General Compliance with Federal Laws, Regulations, and Grant Assurances: (continued) Criteria (continued) 3. Federal laws, regulations, and sponsor assurances require leases granting the rights to offer aeronautical services to comply with 49 U.S.C.A. §2210(a)(2)which prohibits exclusive rights for the use of the airport by any persons providing, or intending to provide, aeronautical services to the public. Effect 1. Non compliance with Federal laws, regulations, and grant assurances could prevent Monroe County from receiving current and future Federal Financial Assistance. Cause 1. Failure to review standard lease formats for compliance with changes in laws, regulations, and grant assurances may have been a factor causing non-compliance. Recommendation 1. County Management should seek the advice of the County Attorney or other legal counsel in determining whether Airport leases conform to all applicable Federal laws, regulations, and grant assurances. County Administrator's / OMB Response All leases are approved by the County Attorney for legal sufficiency prior to BOCC approval and execution. B. Access to Landing Area from Off-Site Location: Condition 1. A lease agreement and an FAA Standard Protection Clause Addendum between Monroe County and Dr. Jules Beckwitt providing access to the landing area from an off-site location at the Marathon Airport was reported to and approved by the FAA; however, lessee acceptance of the FAA Addendum was achieved only after numerous communications between the County and the lessee between December 16, 1991 and May 12, 1992. 2. Evidence of FAA approval and an executed FAA Standard Protection Clause was F found in the County Attorney's files, but not in the Official Records or OMB Airport Finance Office files. 3. On May 13, 1992, the County Attorney's Office notified the lessee's attorney of County requirements for a 30 day cancellation clause in insurance certificates. Adequate insurance certificates with a 30 cancellation clause were not provided to Risk Management until August 9, 1993. 5 B. Access to Landing Area from Off-Site Location: (continued) Criteria 1. FAA rules (Order 5190.6A, §6-6e.) require FAA approval of all off-site access agreements. The FAA requires the inclusion of an FAA Standard protection clause which was attached as an addendum to the original lease. 2. The County Attorney's copy of the lease provides for automatic cancellation should any condition of the lease be violated andnot corrected within ten days of written notice of the violation. The lease also provides that insurance policies must be maintained in a form acceptable to the County. 3. Final executed leases should be filed in the Official Records kept by the Clerk and copies should be provided to the OMB Airport Finance office. Effect 1. County staff hours consumed in the process of bringing this lease into compliance with Federal regulations and lease requirements were not cost-effective. Not including County staff time consumed by other County Departments, such as Risk Management and Airport Finance, County Attorney staff estimated that 30 hours were consumed by research and communication concerning this lease. The current lease, which expires on May 31, 2001, provides for annual payments from the lessee of $1,285. Recommendation 1. County Management should require strict compliance with lease terms, including the automatic cancellation clause. 2. The County Attorney's Office should provide the final executed copy of the lease and FAA Addendum to the Clerk's Office for filing in the Official Records. County Administrator's / OMB Response As leases are being negotiated, we are striving for conformity. The County Attorney's Office presently forwards all fully executed documents to the Clerk's Office for recording and distribution. C. East Martello Tower: Condition 1. The use of the East Martello Tower as a museum may be in violation of the deed of conveyance which contains a reverter clause which could transfer title to the property back to the United States of America. Criteria 1. A Deed between the United States of America and County of Monroe conveyed the East Martello Tower to the County on March 21, 1956, with a reverter clause which states that the property shall automatically revert to the Government pursuant to l J Section 16 of the Federal Airport Act in the event the lands ... are not developed, or cease to be used, for airport purposes. 6 C. East Martello Tower: (continued) Criteria (continued) 2. According to a July 27, 1993 memorandum to the Internal Audit Department from an Assistant County Attorney, 49 U.S. Code §2215(c)may provide for an exemption from the reverter clause, on the grounds that the subject property is still controlled by the United States and that the subject property is a national monument, etc. 3. According to the provisions of FAA Order 5190.6A §4-18f.(1), use of East Martello ^' as a museum may be in compliance if a fair rental value is established which will accrue to the Airport and be available to meet airport expenses. Recommendation 1. County Management should determine what portions of the East Martello property are currently used for airport purposes and obtain an FAA determination on whether the current use as a museum is acceptable. County Administrator's / OMB Response No portions of the East Martello Museum are currently used for airport purposes. The County Attorney's Office has been asked to determine whether the Fort is obliged to pay Fair Market Value [rental]for the property. Even though we agree with Attorney Ludacer that the "museum has been in place for 50 years before the airplane was invented", we will request the appropriate exemptions from the reverter clause as suggested by the Internal Auditor. Auditor's Comments The County Attorney's response that the Fort preceded the invention of the airplane was related to an October 4, 1993 report entitled "Special Report on Airport Revenue Diversion" and was not directly related to comments contained within this internal audit report. The Special Report prepared by Spiegel & McDiarmid (See Exhibit 0) was distributed to Airport Directors and Attorneys to inform them of increased Federal attention concerning "Airport Revenue Diversion" and "Self Sufficiency Of Airport Fees -7 And Charges". In summary, the Federal Department of Transportation's Office of Inspector General (IG) is currently auditing selected airports to evaluate the effectiveness of the FAA's Airport Compliance Program. In many instances, the IG has found areas of noncompliance where the FAA had found airports to be in compliance. D. Fair Market Value Rental of Non-Aeronautical Leases of Airport Property: Condition 1. Fair market value rentals were not established for several non-aeronautical leases of Airport property at Key West International and Marathon Airports. County staff prepared proposed budgets for Fair Market Value rental of portions of Airport property used by the Public Works Road Department, Garages, and Animal Shelters, effective with County Fiscal Year 1993/1994. 7 D. Fair Market Value Rental of Non-Aeronautical Leases of Airport Property: (continued) Criteria , 1. Federal regulations require that fair market value must be established for non- ' aeronautical leases of airport property. According to FAA Order 5190.6A §4-18f(1), property may not be rented at a discount to support community nonprofit organizations or to subsidize non-airport objectives. Effect 1. Estimates of fair market value rental on a non-profit group lease ranged from $18,000 per year according to BOCC minutes in June 1993 to $34,864 per year in April 1987. The actual rental received on the lease is $1 per year. Estimates for fair market values on other non-profit leases were not available during this audit; however, any rental at less than fair market value may be a violation of Federal regulations, which could impair the County's ability to obtain current and future Federal Financial Assistance. Cause 1. Several leases have been granted to non-profit groups for nominal rates of $1 to $10 per year. Estimates of fair market value rental on one of the non-profit group leases range from$18,000 per year according to BOCC minutes in June 1993 to $34,864 per year in April 1987. Recommendation 1. County Management should comply with Federal laws, regulations, and grant assurances by establishing Fair Market Value rates for all leases. 2. All leases of property to non-profit groups in excess of 5 years should include provisions for periodic renegotiation to assure that the leases are producing Fair Market Value. County Administrator's / OMB Response Fair market value [rental] has been assessed and will be billed for all properties at the Marathon Airport. Upon final resolution of the existing lawsuit at the Key West International Airport, the same standards will be applied. E. Standard Economic Index for Periodic Readjustment of Rental Rates and Fees: Condition 1. In general, Monroe County Airport leases appear to require use of the National Consumer Price Index published by the U.S. Department of Labor as a standard in establishing periodic rental rate adjustments. Use of a recognized economic indicator is a fair and reasonable method of periodically adjusting Airport lease rental rates and fees; however, in actual determinations of rental increases, the CPI for the Miami- Fort Lauderdale region was apparently used. (See Exhibit E) 8 it E. Standard Economic Index for Periodic Readjustment of Rental Rates and Fees: (continued) Condition (continued) 2. Increases in Standard Rates and Charges of 10% appear to be based on a decision of County Management to gradually implement increases in Airline Rates & Charges to levels recommended by the Greiner Study completed in July 1992. 3. Although the CPI is used as a standard, the methodology used for applying increases in CPI differs among the various airport leases. a. In certain leases, the methodology requires New Rent to be determined by dividing the New CPI by the Base CPI and multiplying the Base Rent by the result. The New Rent and New CPI become the Base Rent and Base CPI for the next determination period. b. Apparently, OMB Airport Finance staff has erroneously interpreted this _ methodology to mean CPI = % increase in CPI; therefore, New Rent was determined by dividing the New % increase in CPI by the Base % increase in CPI and multiplying the Base Rent by the result. The New Rent and New % increase in CPI becomes the Base Rent and Base % increase in CPI for the next determination period. Criteria 1. Federal regulations (FAA Order 5190.6A §4-14d.(1)(e)) state that leases of Airport property with a term of 5 years or more should contain an escalation provision for periodic adjustments based on a recognized economic index. 2. According to a County Administrator's memorandum dated June 30, 1992, the Board of County Commissioners directed that the Miami, Florida area CPI Index be used and that the percent change in the CPI shall be based upon the annual average CPI computation from January 1 through December 31 of the previous year. (See Exhibit F) 3. According to 49 U.S.C.A. §2210(a)(9), an assurance is required that sponsors will maintain a fee and rental structure for facilities and services being provided to airport users which will make the airport as self-sustaining as possible. The approval of a L 10% increase to gradually implement the recommendations of the Greiner Study is intended to satisfy the requirement of making the airport self-sustaining. 4. Unless lease provisions are in conflict with Federal laws and regulations, the methodology of specific leases should be followed in determining periodic rental rate increases. Effect 1. Monroe County has complied with Federal Regulations requiring escalation clauses based on a recognized economic index; however, the County has_ not consistently complied with either lease provisions requiring CPI increases based on the National CPI or the Board directive requiring that the Miami, Florida area CPI Index be used. _, 9 E. Standard Economic Index for Periodic Readjustment of Rental Rates and Fees: (continued) Effect (continued) 2. The County appears to be working toward complying with Federal Regulations that require maintenance of a fee and rental structure for facilities and services being provided to airport users, that will make the airport as self-sustaining as possible. 3. The County has not complied with the methodology specified in certain leases for the periodic determination of rental increases. Recommendation 1. County Management should consider revising all leases to specify the use of the Miami/Fort Lauderdale CPI to promote efficiency in determining CPI increases. 2. County Management should use a standardized methodology for all leases to simplify the process of determining periodic rental increases. 3. County Management should comply with provisions of leases that establish the methodology for determining rental rate increases. 4. County Management should continue to work toward establishing a fair and reasonable fee and rental structure for facilities and services being provided to airport users, that will make the airport as self-sustaining as possible. County Administrator's / OMB Response Leases are being revised regarding CPI as they are written/renewed. We use the Miami- Ft Lauderdale base as is the adopted standard per BOCC policy. Due to turnover in the Airport Finance staff, miscalculations may have occurred. These errors are now corrected as the leases come up for annual review. F. Standard Rates and Charges: Condition 1. Monroe County is working toward complying with Federal regulations which require maintenance of a fee and rental structure for facilities and services being provided to airport users which will make the airport as self-sustaining as possible. A review of Standard Rates and Charges approved by the Airport Director for 1989 through 1993, revealed that land rental rates for Airlines are higher than land rental rates for General Aviation. (See Exhibit G1) 2. A review of the Greiner Study indicates that the County appears to be in compliance with the requirement of 49 U.S.C.A. §2210(a)(9) that no part of the Federal share of f"- an airport development, airport planning or noise compatibility project for which a grant is made under the Airport Airway Improvement Act of 1982, the Federal Airport Act or the Airport and Airway Development Act of 1970 shall be included in the rate base in establishing fees, rates, and charges for users of that airport. 10 I F. Standard Rates and Charges: (continued) Criteria 1. According to the requirements of 49 U.S.C.A. §2210(a)(1), the sponsor will make its airport available as an airport for public use on fair and reasonable terms and without j ! unjust discrimination, to all types, kinds, and classes of aeronautical uses. 2. In addition, 49 U.S.C.A. §2210(a)(1)(A) requires that each air carrier using such airport (whether as a tenant, nontenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and which utilize similar facilities, subject to reasonable classifications such as tenants or nontenants and signatory carriers and nonsignatory carriers. 3. FAA Order 5190.6A §6-7.a. states that while the actual rates for use of the landing area are a matter of negotiation, there should be no discrimination in use rates between air carrier and general aviation using aircraft of the same type and weight. Effect 1. Establishing different rates and charges for Airline and General Aviation use of Airport land may be a violation of Federal Regulations prohibiting economic discrimination. A violation of economic non-discrimination assurances could impair j the County's ability to obtain current and future Federal Financial Assistance. _ Recommendation 1. County Management should revise Standard Rates & Charges to establish equivalent land use rates for Airlines and General Aviation, or 2. County Management should seek a determination from the FAA as to whether different land use rates for Airlines and General Aviation is a violation of Federal Regulations. County Administrator's / OMB Response Standard Rates and Charges are updated on a regular basis. A Professional Service Order (PSO) with Greiner, Inc. has been executed to accomplish this task in 1994. We will keep the Auditor's comments in mind as we develop the new Rates and Charges. G. Revised Minimum Standards for Commercial Aeronautical Activities by FBO And Other Aeronautical Service Providers at Monroe County Airports: Condition 1. Current Fixed Based Operators at both Key West International Airport and Marathon Airport do not appear to have met the initial investments requirements of the Revised Minimum Standards for the right to conduct Primary Services and Secondary Services. 11 l G. Revised Minimum Standards for Commercial Aeronautical Activities by FBO And Other Aeronautical Service Providers at Monroe County Airports: (continued) Condition (continued) 2. Documentation to support compliance with initial investment requirements was either not found in the OMB Airport Finance Office files or did not prove that required investments were made. 3. County Management has requested documentation of required investments prior to the audit, but no evidence of compliance or follow-up was found. 4. Specific lease agreements for the FBO's contain investment requirements that are in conflict with the Revised Minimum Standards. 5. On August 4, 1989, the FAA criticized a situation in which an existing Fixed Base Operator was selected to expand into new facilities, without being required to meet minimum standards that were referred to in the advertisement for bids for a second FBO. A final FAA determination was not found in the documentation available in OMB Airport Office files at the time of this audit. An addendum to the FBO lease for additional space was approved on April 22, 1992. 6. Two Fixed Base Operators were granted lease rights to conduct auto rental services which is a specifically excluded activity, according to §V.C.3. of the Revised Minimum Standards. Criteria 1. According to §V.D.1. of the Revised Minimum Standards: a. The minimum investment in facilities, tools, and equipment excluding aircraft to provide Primary Services at the airport is $300,000, part of which may be satisfied by the leasing of existing facilities, the value of which shall be determined by the commission. b. The minimum investment in facilities, tools, and equipment to provide Secondary Service is an additional $300,000. 2. According to §IX. of the Revised Minimum Standards, in the event of any conflict between the terms of these minimum standards and the provisions of any lease, the provisions of the lease shall be controlling. 3. FAA Order 5190.6A §3-17a. states that Airport owners should be encouraged to develop and publish minimum standards to be met by commercial operators in advance of negotiations with any prospective tenant or operator. 4. FAA Order 5190.6A §3-17c. states that manipulating the standards solely to protect the interest of an existing tenant is incompatible with this objective. A standard which a tenant operator is required to meet must be uniformly applicable to all operators seeking the same franchise privileges. Effect 1. The County has negotiated discounted land rental rates on the premise that large initial investments are required to operate an Fixed Base Operation and that the residual value of such investments will eventually become property of the County at termination of the leases. 12 G. Revised Minimum Standards for Commercial Aeronautical Activities by FBO And Other Aeronautical Service Providers at Monroe County Airports: (continued) Effect (continued) 2. Potential bidders for the right to conduct aeronautical services may be discouraged from doing so because of anticipated initial investment requirements. Failure to set minimum standards or manipulation of minimum standards to protect existing tenants could be considered by the FAA to be a violation of Federal regulations and Economic 1_ Non-Discrimination Assurance. Such a determination by the FAA could impair the County's ability to obtain current and future Federal Financial Assistance. f l Cause 1. The §IX. of the Revised Minimum Standards effectively invalidates other provisions and requirements of the Revised Minimum Standards and permits the County to approve non-standard agreements for FBO's at Monroe County Airports. Recommendation 1. The Revised Minimum Standards should be revised to establish actual realistic Minimum Standards for the conduct of Aeronautical Activities at Monroe County Airports. 2. The suggested revision should include a provision that any standards which will apply in the selection of any Aeronautical Activity must be established and approved by the Board of County Commissioners as a revision to the Minimum Standards prior to advertisement for bids for such Aeronautical Activity. 3. Any Minimum Standards that apply to existing Aeronautical Activities should apply to any proposals for additional Aeronautical Activities. 4. As a follow-up to the previous criticism from the FAA, a final.determination should be obtained by County Management from the FAA concerning the acceptability of the expansion of the existing FBO into new facilities. If a violation of Federal Regulations and grant assurances is found, then the County should proceed to comply with the requirements of the FAA Final determination. County Administrator's / OMB Response We agree that the Minimum Standards are in need of updating; however we also believe that the investment requirements for FBO's are realistic. The Division Director has reviewed all 3 FBO leases and has determined that the initial investment requirements have been met. Documentation attesting to this fact will be placed in each FBO file. A determination by the FAA has been made concerning the expansion of the existing FBO at KWIA. It has determined that this is acceptable. 1 ! 13 i I H. Rights of First Refusal Defined by FAA as Exclusive Right: Condition 1. Four leases between Monroe County and aeronautical service providers contained rights of first refusal on any additional space that might become available. These leases have either already been terminated or renewed, with no provision for first right of refusal contained in the renewal leases. Criteria 1. FAA Order 5190.6A §3-9c(2) states that if the need for additional space becomes apparent at a later date, such space, as well as any new areas developed for the service and support of aeronautical activities, must be made available to all qualified proponents or bidders, including the incumbent. The advance grant of options or preferences (including right of first refusal) on all future sites to the incumbent enterprise must be viewed as an exclusive right. 2. FAA Order 5190.6A §3-8b states that the grant of an exclusive right to conduct an aeronautical activity at an airport on which Federal funds have been expended is considered a violation of Section 308(a) of the Federal Aviation Act... Effect 1. The inclusion in leases of the right of first refusal is an advance grant of an exclusive right, which could impair the ability of the County to obtain current and future Federal Financial Assistance. Recommendation 1. Current leases should be reviewed by County Management to gain assurance that no current leases provide rights of first refusal to aeronautical service providers. Any leases found to be in non-compliance should be amended. 2. Future leases should not contain first rights of refusal. County Administrator's / OMB Response No additional leases have been found to contain right of first refusal. No future leases shall contain right of first refusal. I. Flying Club May Be A Fixed Base Operator: Condition 1. A lease between the County and a "Flying Club" for the right to occupy an aircraft shelter does not contain language in the lease to protect the County's rights and powers to access documents necessary to make a determination as to whether the "Flying Club" is a nonprofit entity or it is an FBO masquerading as a Flying Club. 2. The lease referred to above expired on February 10, 1990 and no documentation was found to indicate any renewal lease approved by the Board. 14 I. Flying Club May Be A Fixed Base Operator: (continued) Criteria (continued) 1. In Appendix 5 of FAA Order 5190.6A, the FAA has provided the following definition: "An FBO is an individual or firm operating at an airport and providing general aircraft services such as maintenance, storage, ground and flight instructions, etc." 2. According to FAA Order 5190.6A §3-9.g., a Flying Clubs are nonprofit entities (corporations, associations or partnerships) organized for the express purpose of providing its members with an aircraft or aircraft for their personal use and enjoyment only. The ownership of the aircraft, or aircraft, must be vested in the name of the flying club (or owned ratable by all its members). ... The airport owner has the right to require the flying club to furnish such documents, insurance policies, and maintain a current list of members as reasonably necessary to assure that the flying club is a nonprofit organization rather than an FBO masquerading as a flying club. 3. The Monroe County Revised Minimum Standards at §I.H. define a Fixed Base Operation as meaning the person(s)engaging in Primary Commercial Support Services, at a minimum, as described in Section V.A. 4. The Monroe County Revised Minimum Standards at §VI. state that in the event a person desires to establish a business on a Monroe County Airport which includes only a part of the elements of primary and/or secondary commercial aeronautical support services, excluding the sale of aviation fuel, as herein before defined, such person will be required to negotiate a lease with the Commission upon terms, conditions, and standards necessary for the protection of the public health, welfare, and safety. Effect 1. The County does not currently have the ability to make a determination whether the Flying Club is a nonprofit entity or an Fixed Base Operator. 2. The County may be in non-compliance with grant assurances requiring preservation of rights and powers necessary to meet Obligations required by Federal Financial Assistance. Recommendation 1. Any lease renewal should contain language allowing the County to have access to records necessary to make a determination that the "flying club" meets the FAA definition of a flying club. 2. County Management should seek a determination from the FAA on whether the "flying club" meets the FAA definition of a flying club or an FBO. 3. If the "flying club" is determined by the FAA to be an FBO, then any lease renewal should comply with the Revised Minimum Standards. 15 I. Flying Club May Be A Fixed Base Operator: (continued) County Administrator's / OMB Response The FAA has determined that if the Marathon Flying Club is used for commercial purposes, the activity would constitute an FBO. Therefore, we will continue to insert language in their lease prohibiting commercial activity as we have in the past. It should be noted that the recently negotiated lease with the Flying Club does contain such language. J. Aircraft Shelter Rental May Be A Fixed Based Operator: Condition 1. In addition to the "Flying Club" lease, another lease between the County and Charles Pierce allows the rental or sublease of aircraft shelter to others, with County approval. Criteria 1. In Appendix 5 of FAA Order 5190.6A, the FAA has provided the following definition: a. An FBO is an individual or firm operating at an airport and providing general aircraft services such as maintenance, storage, ground and flight instructions, etc. 2. The Monroe County Revised Minimum Standards at §I.H. define a Fixed Base Operation as meaning the person(s)engaging in Primary Commercial Support Services, at a minimum, as described in Section V.A. Even though Monroe County requires detailed requirements to qualify as an FBO, the FAA apparently considers single elements of aeronautical services as an FBO. For example, an FBO could provide only aircraft storage or aircraft parking. Effect 1. If the lease is determined by the FAA to be an FBO agreement, the current lease may not be in compliance with the Revised Minimum Standards. Recommendation 1. County Management should seek a determination from the FAA on whether the lease meets the FAA definition of an FBO. 2. If the lease is determined by the FAA to be an FBO agreement, any lease renewal should the lessee should comply with the requirements of the Revised Minimum Standards. County Administrator's / OMB Response As in Item "I", the FAA has determined that the Pierce hangar would be an FBO by definition if commercial activity is conducted on the premises. Therefore, commercial activity will be prohibited as it has been in the past and any lease renewal will contain language prohibiting such activity. 16 K. Delegation of Authority to a Fixed Base Operator: Condition 1. The County may have improperly delegated its authority to Island City Flying Service to negotiate an operating agreement (sublease) with two other aeronautical service providers (Aeroplane Tours, Inc. and Air-Sea Key West, Inc.) which may be FBO's according to FAA rules. The subleases authorized the two aeronautical service providers to specialize in charter services, flight instruction, and airplane tours. According to County Attorney staff, Air-Sea Key West, Inc. ceased operations. Both sub-leases expired on September 30, 1992 and no renewal of the Aeroplane Tours, Inc. sublease has been approved by the Board of County Commissioners as of August 12, 1993. Criteria 1. FAA Order 5190.6A §4-2c. states that the Airport owner shall not delegate its authority to one FBO to negotiate an operating agreement (lease) with another FBO. 2. In Appendix 5 of FAA Order 5190.6A, the FAA has provided the following definition: a. An FBO is an individual or firm operating at an airport and providing general aircraft services such as maintenance, storage, ground and flight instructions, etc. 3. The Monroe County Revised Minimum Standards at §I.H. define a Fixed Base Operation as meaning the person(s)engaging in Primary Commercial Support Services, at a minimum, as described in Section V.A. 4. The Monroe County Revised Minimum Standards at §VI. state that in the event a person desires to establish a business on a Monroe County Airport which includes only a part of the elements of primary and/or secondary commercial aeronautical support services, excluding the sale of aviation fuel, as herein before defined, such person will be required to negotiate a lease with the Commission upon terms, conditions, and standards necessary for the protection of the public health, welfare, and safety. Effect 1. The County may have violated grant assurances requiring preservation of rights and powers necessary to meet Obligations required by Federal Financial Assistance. A determination of noncompliance by the FAA could impair the County's ability to obtain current and future Federal Financial Assistance. 2. If the leases with the two aeronautical service providers are determined to be FBO agreements, then the leases should be expected to conform to the same standards as other FBO's on the Airport. Recommendation • 1. County Management should seek a determination from the FAA on whether Aeroplane Tours, Inc. and Air-Sea Key West are FBO's according to the FAA. 2. If the Aeroplane Tours, Inc. sublease is determined by the FAA to be an FBO, any agreement for the right to conduct an aeronautical service on Airport property should be made directly between the County and Aeroplane Tours, Inc. 17 K. Delegation of Authority to a Fixed Base Operator: (continued) Recommendation (continued) 3. If the Aeroplane Tours, Inc. sublease is determined by the FAA to be an FBO, any agreement for the right to conduct an aeronautical service on Airport property should comply with the requirements of the Revised Minimum Standards. 4. Any leases or agreements should contain language allowing the County to require the same standards for the conduct of an aeronautical activity as are applicable to all other existing FBO's. County Administrator's / OMB Response The FAA has determined that the sublease by Island City Flying Service to Key West Aeroplane Tours, Inc. does not violate FAA Order 5190.6A, Paragraph 4-2C. However, they have also determined that the sublease of a portion of the ramp to Key West Aeroplane Tours, Inc. is considered a separate FBO. Therefore, when the Minimum Standards are revised, we will have to exempt such activities from the standards as long as they are a sublease portion of an existing FBO. L. Subordination of Title: Condition 1. The County approved a Consent& Estoppel Certificate for an FBO on June 26, 1991, in which the County acknowledged and accepted the mortgage of the lease to a local bank. In assurance 5 of the Consent, the County agreed with the Lender that "the Lease shall be amended and modified ... as follows for so long as the Mortgage securing the Loan(the "Mortgage") relating to Lessee's interest in the Lease and other property and interests of the Lessee (the "Mortgage Premises") shall remain outstanding of record". 2. No FAA determination was found in OMB Airport Finance Office files which would indicate FAA approval of the Consent. 3. No evidence was found in OMB Airport Finance files to indicate that appropriate documents were submitted to the FAA for a determination. Criteria 1. According to FAA Order 5190.6A, §4-2d(1) states "the subordination of airport property by mortgage, easement, or other encumbrance will normally be considered as a transaction which would deprive the owner of the rights and powers necessary to perform the covenants in the agreement with the Government." 2. FAA Order 5190.6A, §4-2d(1) also states "Wherever it is proposed to subsequently encumber obligated airport property, a complete summary of the pertinent facts, together with recommendations of the appropriate regional Airports office, should be forwarded to the regional Airports division for determination on a case-by-case basis. 18 1 N. Untimely Execution of Board Approved Leases: (continued) Cause (continued) 3. According to Airport Management, the airline associated with the rescinded lease declined to execute the lease because a minimum lease requirement of fourteen departure flights per week could not be met by the airline. Airport Management that as a result of lease negotiations, the prospective tenant agreed to County lease requirements and would promptly execute the lease and occupy and use the lease premises. Recommendation 1. County Management should seek earlier negotiations with vendors. 2. County Management should include execution deadline clauses in leases to encourage earlier return of executed leases by the lessees. 3. Written policies and procedures should be established to provide standards for execution of leases and cancellation for non-execution of leases. County Administrator's / OMB Response We will ask the County Attorney's opinion regarding deadline clauses in leases and will proceed based on the opinion rendered. We have started a practice of calling the vendors for signatory contact name and addressing the copies to be executed to said contact. O. Gift Shop Gross Revenue Fee: Condition 1. Gift Shop Gross Revenue fees have been remitted on an annual basis to the County, whereas the lease apparently specifies that payments are required on a monthly basis. 2. The lease provides that the gross revenues over $25,000 are subject to the fee; however, the lease terms are ambiguous as to whether the $25,000 limitation is to be applied on an annual or monthly basis. OMB Airport Finance has apparently interpreted the lease terms to mean the $25,000 limitation is applied on an annual basis. 3. The gift shop lease expired on September 30, 1992. Airport Management is currently negotiating with the tenant concerning lease renewal. Criteria 1. In Article III.A., the gift shop lease states in part "... the Lessee agrees to pay on or before the 15th day of each month following the last day of each calendar month throughout the leasehold ... 5% of gross revenues over $25,000.00 resulting from the conducting of a Gift and Sundry Shop business ..." 2. Monroe County Administrative Instruction 2300.2.(4)A states in part "... Leases concerning airport property must be approved by the Board of County Commissioners, executed by the Mayor ..." 22 L. Subordination of Title: (continued) Effect 1. The Consent may have violated FAA rules against subordination of title, which means the County may be in noncompliance with grant assurances concerning preservation of rights and powers. 2. Noncompliance with FAA rules and grant assurances could affect the County's ability to obtain current and future Federal Financial Assistance. Recommendation 1. County Management should comply with FAA regulations which require submission of a complete summary of facts concerning proposed encumbrances of airport property. 2. No encumbrance of airport property should be approved by the County without a determination of approval from the FAA. County Administrator's / OMB Response No subordination has taken place and no encumbrance has been placed on airport property. See Letter dated October 21, 1993 from Spottswood, Spottswood and Spottswood addressing this issue. The FAA agrees with Attorney John M. Spottswood, Jr. and states that this does not violate any FAA regulations. • M. Rental Rates of Several Leases Differ From Standard Rates And Charges: Condition 1. A review of an audit sample of seventy-six leases found several airline leases that differ from standard rates and charges used by Monroe County Airport Management. a. A lease between the County and Airways International for space at Key West International Airport, approved by the Board of County Commissioners on March 4, 1993, specified a flat annual rate of $6,900 per year for 65 square feet of exclusive ticket counter space. This rate equates to $106.15 per square foot per year. Standard Rates and Charges approved by Airport Management for 1993, specify a rate of $17.68 per square foot per year for publicly exposed space. Monthly billings have been prepared using the flat rate of $6,900 per year. b. Two other variances from standard rates were found, but the variances appear to be justified in that the quality of the leased premises is not equivalent to terminal space provided to other airlines. Criteria 1. According to the requirements of 49 U.S.C.A. §2210(a)(1), the sponsor will make its airport available as an airport for public use on fair and reasonable terms and without unjust discrimination, to all types, kinds, and classes of aeronautical uses. 19 M. Rental Rates of Several Leases Differ From Standard Rates And Charges: (continued) Criteria (continued) 2. In addition, 49 U.S.C.A. §2210(a)(1)(A) requires that each air carrier using such airport (whether as a tenant, nontenant, or subtenant of another air carrier tenant) shall be subject to such nondiscriminatory and substantially comparable rules, regulations, conditions, rates, fees, rentals, and other charges with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers which make similar use of such airport and which utilize similar facilities, subject to reasonable classifications such as tenants or nontenants and signatory carriers and nonsignatory carriers. Effect 1. Establishing a nonstandard and substantially non-comparable rental rate may be viewed by the FAA as a violation of Federal regulations requiring the sponsor to make its airport available as an airport for public use on fair and reasonable terms and without unjust discrimination, to all types, kinds, and classes of aeronautical uses. Cause 1. According to Airport Management, the $6,900 flat rate represents the minimum annual rental required for the right to occupy space in the terminal building at Key West International Airport. Recommendation 1. Justification for the variances from Standard Rates and Charges should be documented in Airport Finance Office files. 2. An FAA determination should be obtained to determine whether the $6,900 flat fee is a nondiscriminatory and substantially comparable rate with respect to facilities directly and substantially related to providing air transportation as are applicable to all such air carriers that make similar use of such airport and which utilize similar facilities. County Administrator's / OMB Response Airport Finance Office files will be updated to include justification for variances from Standard Rates and Charges. The FAA has determined that the $6,900 flat fee "does not appear to be discriminatory. " 20 N. Untimely Execution of Board Approved Leases: Condition 1. Fifteen Airport leases that were approved by the Board of County Commissioners on March 4, 1993 were not executed and returned by the lessees as of April 28, 1993. Fourteen of the fifteen leases were renewals of leases which expired on September 30, 1992, causing the tenants to legally be tenants at suffrage until execution of the renewal leases. 2. One of the fifteen leases was rescinded by the Board on July 7, 1993. OMB Airport Finance staff prepared March and April 1993 billings for counter space in accordance with the lease; however, according to Airport Management, the lessee never executed the lease and never took possession of or used the premises. Audit review of revenue collections indicates that the March and April billings were not paid by the lessee. 3. Executed leases covering the period from November 1989 through March 1993 were not found in OMB Airport Finance files nor the Clerk's Finance Department for an airline providing aeronautical services at Key West International and Marathon Airports. 4. Two leases for an airline providing services at both Airports were not submitted to the Board for approval until June 10, 1992, although the leases were effective beginning October 1, 1991. Criteria 1. Internal Audit found no written County policies concerning time limitations for execution of leases. 2. A related policy concerning timing of renewals was found in OMB Airport Finance records in the form of Monroe County Administrative Instruction 2300.2.(4)G, which provides for a two-month in advance termination warning for lease renewals. The same paragraph also provides that the Lessee will also be advised that if the Airport Manager does not receive a timely response from him, his lease will automatically terminate on the specified date, and steps will be taken to vacate the premises. Effect 1. Failure to timely execute leases may subject the county to unknown liabilities and legal ramifications. 2. Concerning the rescinded lease, Airport Management incorrectly directed Airport Finance staff to bill the prospective tenant for March and April, even though the lease was not executed and the premises were not occupied or used. Cause 1. According to Airport Management, execution of the fifteen leases approved by the Board of County Commissioners on March 4, 1993 was delayed by the Airport tenants. Airport management also indicated that the two leases approved by the Board on June 10, 1992 that were effective on October 1, 1992, were also delayed by an Airport tenant. 2. No provision exists in Airport leases requiring Airport tenants to timely execute leases. 21 N. Untimely Execution of Board Approved Leases: (continued) Cause (continued) 3. According to Airport Management, the airline associated with the rescinded lease declined to execute the lease because a minimum lease requirement of fourteen departure flights per week could not be met by the airline. Airport Management that as a result of lease negotiations, the prospective tenant agreed to County lease requirements and would promptly execute the lease and occupy and use the lease premises. Recommendation 1. County Management should seek earlier negotiations with vendors. 2. County Management should include execution deadline clauses in leases to encourage earlier return of executed leases by the lessees. 3. Written policies and procedures should be established to provide standards for execution of leases and cancellation for non-execution of leases. County Administrator's / OMB Response We will ask the County Attorney's opinion regarding deadline clauses in leases and will proceed based on the opinion rendered. We have started a practice of calling the vendors for signatory contact name and addressing the copies to be executed to said contact. O. Gift Shop Gross Revenue Fee: Condition 1. Gift Shop Gross Revenue fees have been remitted on an annual basis to the County, whereas the lease apparently specifies that payments are required on a monthly basis. 2. The lease provides that the gross revenues over $25,000 are subject to the fee; however, the lease terms are ambiguous as to whether the $25,000 limitation is to be applied on an annual or monthly basis. OMB Airport Finance has apparently interpreted the lease terms to mean the $25,000 limitation is applied on an annual _ basis. 3. The gift shop lease expired on September 30, 1992. Airport Management is currently negotiating with the tenant concerning lease renewal. Criteria 1. In Article III.A., the gift shop lease states in part "... the Lessee agrees to pay on or before the 15th day of each month following the last day of each calendar month throughout the leasehold ... 5% of gross revenues over $25,000.00 resulting from the conducting of a Gift and Sundry Shop business ..." 2. Monroe County Administrative Instruction 2300.2.(4)A states in part "... Leases concerning airport property must be approved by the Board of County Commissioners, executed by the Mayor ..." 22 O. Gift Shop Gross Revenue Fee: Criteria (continued) 3. Monroe County Administrative Instruction 2300.2.(4)G provides for a two-month in advance termination warning for lease renewals. The same paragraph also provides that the Lessee will also be advised that if the Airport Manager does not receive a timely response from him, his lease will automatically terminate on the specified date, and steps will be taken to vacate the premises. Effect 1. Internal Audit cannot obtain assurance that gross revenue fees collected from the gift shop are in agreement with the terms of the lease. 2. Failure to timely renew leases may subject the county to unknown liabilities and legal ramifications. Cause 1. No indication was found in the OMB Airport Finance "gift shop" file that the County initiated the lease renewal process in accordance with Administrative Instruction 2300.2. Recommendation 1. In any renewal lease the County may consider, the provision for a 5% Gross Revenues Fee should be clarified to indicate whether the fee should be remitted on a monthly or yearly basis and the provision for a 5% Gross Revenues Fee should be clarified to indicate whether the $25,000 limitation applies to monthly or yearly revenues. County Administrator's / OMB Response The intent is for collection of gross revenue fee for full year - collected annually. This has been clarified in the new lease agreement which was approved by the BOCC on 11/10/93. P. Compliance With Lease Requirements For Periodic Rental Increases: Condition 1. Internal Audit reviewed OMB Airport Finance billings/receipt summaries for on-site rental car companies at Key West International Airport for compliance with 10% 1 biennial increase clauses contained in the leases. Lease payments received from two on-site rental car companies do not appear to be in compliance with lease requirements concerning periodic rental rate increases. 2. OMB Airport Finance Airport billings/receipt summaries for two Fixed Base Operators (FBO's), one each at Key West International Airport and Marathon Airport, were reviewed for compliance with lease requirements for periodic rental rate increases based on the Consumer Price Index (CPI). Lease payments received from the two FBO's are apparently not in compliance with lease requirements concerning periodic rental rate increases based on the CPI. 23 1 P. Compliance With Lease Requirements For Periodic Rental Increases: (continued) Criteria 1. Lease agreements establish the specific terms for periodic rental rate increases. 2. All rental payments should be agree with terms of the lease. 3. OMB Airport Finance is responsible for monitoring the billing and collection of Airport lease revenues. 4. Monroe County Administrative Instruction 2300.2(4)E. states that "When an increase in rental amount occurs, notice will be sent from Airport Management to Lessee with a clear explanation as to the reason for increase to avoid questions or nonpayment of increase amount." Effect 1. Audit review of OMB Airport Finance billing summaries for one of the on-site rental ___ car companies indicates that 10% biennial increases were not applied as required by the lease in 1987, 1990, and 1992. Internal Audit estimates that the current lease payment of$229.31 is $76 lower than if all increases had been made when required. 2. Audit review of OMB Airport Finance billing/receipt summaries for the other on-site company indicates that 10% biennial increases were not applied as required in 1990 and 1992. Internal Audit estimates that the current lease payment of $227.47 is $48 lower than if all increases had been made when required. 3. OMB Airport Finance billing/receipt summaries for the FBO at Key West International Airport reveal that no increase in rates was applied from the period of June 1991 through December 1992. A retroactive increase for 1991 was applied in January 1992 in combination with the 1992 increase; however, as previously discussed in Audit Finding E, the methodology for determining the increase is incorrect, resulting in lower rates of increase than the CPI increase. 4. OMB Airport Finance billing/receipt summaries for the FBO at Marathon Airport reveal that an increase in rates due on October 1991 was not applied until March 1992 and an increase in rates due on October 1992 was not applied as of March 31, 1993. As previously discussed in Audit Finding E, the methodology for determining the increase is incorrect, resulting in lower rates of increase than the CPI increase. 5. The above conditions do not have a material adverse effect on the financial statements of Monroe County. Cause 1. OMB Airport Finance does not prepare billings for rental car companies and FBO's. These Airport tenants are responsible for remitting the monthly payments in accordance with their specific leases agreements. If not reminded of periodic CPI increases by Airport Management, Airport tenants may not comply with specific requirements of their lease agreements and fail to increase their rents. No evidence of communication of rental increases was found in OMB files available at the time of this audit. 24 P. Compliance With Lease Requirements For Periodic Rental Increases: (continued) Recommendation 1. Airport Management should establish written procedures to monitor the timing and conditions for increases in rental rates of the various Airport leases. 2. Airport Management should comply with the requirements of Administrative Instruction 2300.2(4)E. by communicating with the tenants in writing concerning the required increases and such communication should be in advance of the scheduled increases. 3. Airport Management should establish written procedures to verify implementation of the required increases. County Administrator's / OMB Response Car Rental leases are currently being reviewed and we are requesting a breakdown of rent payments from the vendors. Where it is evident that a rent increase is needed, the vendor will be billed accordingly and notified of said increase. [A] Tickler file [has been] established for tracking of rent/fee increases. Q. Billings For Additional Space: Condition 1. Audit review of billing receipt summaries and lease requirements for a Fixed Base Operator (FBO) at Key West International Airport and one at Marathon Airport revealed that lease payments have not included rental amounts for additional space added through leases executed subsequent to the original leases. Criteria 1. Lease agreements establish the specific terms for rental payments. 2. All rental payments should be agree with terms of the lease. 3. OMB Airport Finance is responsible for monitoring the billing and collection of Airport lease revenues. 4. Monroe County Administrative Instruction 2300.2(4)E. states that "When an increase in rental amount occurs, notice will be sent from Airport Management to Lessee with a clear explanation as to the reason for increase to avoid questions or nonpayment of increase amount." Effect 1. Audit review of OMB Airport Finance billing summaries for an FBO at Key West International Airport indicates that the FBO has not remitted payments for a Fuel Farm Lease Addendum which was effective June 5, 1991 and a Aircraft Parking Apron Addendum which was effective April 22, 1992. Internal Audit estimates that uncollected revenues for the Fuel Farm and Aircraft Apron were $700 for FY90/91, $4,600 in FY91/92, and $3,400 for the period from October 1, 1992 through March 31, 1993. 25 Q. Billings For Additional Space: (continued) Effect (continued) 2. Audit review of OMB Airport Finance billing summaries for an FBO at Marathon Airport indicates that the FBO has not remitted payments for an Auto Parking Lease Addendum which was effective January 29, 1992. Internal Audit estimates that uncollected revenues for the Auto Parking Lease Addendum were $190 for FY91/92, and $150 for the period from October 1, 1992 through March 31, 1993. 3. The above conditions do not have a material adverse effect on the financial statements of Monroe County. Cause 1. OMB Airport Finance does not prepare billings for the FBO's. These Airport tenants are responsible for remitting the monthly payments in accordance with their specific lease agreements. If not reminded of additional rent due as a result of lease addenda, Airport tenants may not comply with specific terms of their lease agreements and fail to increase their rents. Recommendation 1. Airport Management should establish written procedures to monitor the timing and conditions for increases in rental amounts of the various Airport leases. 2. Airport Management should comply with the requirements of Administrative Instruction 2300.2(4)E. by communicating with the tenants in writing concerning the required increases and such communication should be in advance of the scheduled increases. 3. Airport Management should establish written procedures to verify implementation of the required increases. County Administrator's / OMB Response The FBO at Marathon is paying the correct amount. The most current addendum to [the] lease agreement is all inclusive covering total space rented. The FBO at KWIA has been contacted and is now paying rent for all additional space. Rent for both of the above FBO's was raised in Fiscal Year 1993 and letters regarding same were sent to the operators. R. Certain Airline Rentals Are Exempt From Florida Sales Taxes: Condition 1. The audit sample of leases included of twenty-four airline billings that included a charge for Florida sales taxes imposed on areas described as ticket counters, baggage handling, covered baggage, baggage make-up, and passenger areas. These areas may qualify for an exemption from Florida Sales and Use Taxes. 26 R. Certain Airline Rentals Are Exempt From Florida Sales Taxes: (continued) Criteria 1. Florida Department of Revenue Sales and Use Tax Rules §12A-1.070(1)(a)6 allows an exemption from sales and use taxes for property used at an airport exclusively for the purpose of aircraft landing or aircraft taxiing or property used by an airline for the purpose of loading or unloading passengers or property onto or from aircraft or for fueling aircraft. 2. In Technical Assistance Advisory TAA 91A-021 dated April 30, 1991, in response to a taxpayer request, the Florida Department of Revenue took the position that payments made by an airline for the use of ticket counters; ramp and apron areas; air cargo terminals; departure lounges; baggage claim areas; and baggage make-up areas are exempt from sales tax as real property used by an airline for the purpose of loading and unloading passengers and property onto or from aircraft. Effect 1. Any overpayment of sales taxes that may have been collected and remitted to the State of Florida should be refunded to the tenant airlines and has no material effect on the Monroe County financial statements. Recommendation 1. County Management should seek a Technical Assistance Advisory from the Department of Revenue about Monroe County Airport leases to determine what portions are used by airlines for the purpose of loading and unloading passengers and property onto or from aircraft. 2. Charges for sales taxes should be revised to conform to current Florida Department of Revenue Sales and Use Tax Rules. County Administrator's / OMB Response This office has procured the current handbook governing Sales Tax and Uses from the Department of Revenue (DOR). A phone call on 10/20/93 to Lourdes at DOR revealed that ticket counters, storage areas and office space for airlines are all taxable. Areas for loading and unloading of passengers is not taxable. She will be sending the most current written documentation regarding this matter. Auditor's Comments The verbal response from the Department of Revenue is not consistent with technical assistance advisories issued for other counties and municipalities throughout the State of Florida. The internal audit interpretation of Technical Assistance Advisory 91A-021 concerning exemptions was verified with the Department of Revenue on February 7, 1994. In order to assure consistency with other counties in the application of sales taxes, County Management should apply for a technical assistance advisory for DOR interpretation of the taxability of the various components of airport leases and subsequently, upon receipt of the official TAA, adjust all lease charges to reflect the proper tax status. 27 S. Florida Department of Revenue Sales Tax Adjustment: Condition 1. Florida Department of Revenue issued a Notice of Final Decision on February 19, 1993 concerning Sales and Use Taxes and Local Infrastructure Surtax collected on rentals of Monroe County Airport properties during the period from July 1, 1985 through April 30, 1991. The combined assessment for taxes, interest, and penalties of$15,521.15 represented taxes that were not collected and remitted to the Department of Revenue for rentals of parking spaces by courtesy and passenger vehicles for hire, credit given to tenants for leasehold improvements required by lease agreements, and gift shop gross receipts. Sales tax adjustments on franchise fees collected from on-site and off-site rental car companies were eliminated from the final adjustment. 2. OMB Airport Finance staff began collecting sales taxes on courtesy and passenger vehicle parking fees on April 1, 1993. Taxes were not collected on fees estimated at $1,700 for the period of May 1991 through September 1991, $5,530 for the period from October 1991 through September 1992, and $9,900 for the period from October 1992 through March 1993. Total parking fees on which sales taxes were not collected for the period from May 1991 through March 1993 are $17,130 and sales taxes at 7% equal $1,199. 3. The County collected giftshop gross receipts fees for 1992 in the amount of$7,983.62 and 1991 in the amount of $7,232.75. Uncollected sales taxes on these fees total $1,065.15. 4. Leasehold improvement credits totalling $8,200.53 were given to an Airport tenant for the period from June 1991 through March 1993. Uncollected sales taxes on these improvement credits total $574.37. Criteria 1. Florida Statutes and Florida Department of Revenue Sales and Use Tax Rules provide the criteria for collecting and remitting sales taxes. 2. Written communication between the Department of Revenue and the Monroe County Attorney indicate the intent of the Department of Revenue to implement the collection of sales taxes on franchise fees, guaranteed minimum payments, concession fees, and percentage fees after the completion of the formal rule making process. Effect 1. The conditions noted above do not have a material effect on the financial statements of Monroe County. Recommendation 1. County Management should ensure that all applicable sales taxes are collected and remitted to the Florida Department of Revenue. 2. County Management should monitor changes in Florida Department of Revenue Sales and Use Tax Rules for changes in the taxation of franchise fees and other fees and rentals collected by the County. 28 S. Florida Department of Revenue Sales Tax Adjustment: (continued) County Administrator's / OMB Response All back taxes on taxi rental space [have] been paid. T. Deposit And Recording of Airport Revenues: Condition 1. A sample of eighty-one OMB Airport Finance collections of rentals and fees was successfully traced from recording in the OMB Airport ledger to deposit in the bank and proper recording in the Official County Accounts. 2. Various receipts were not timely processed, but the responsible department could not be identified, because on documentation available during the audit, unidentifiable date stamps or missing date stamps did not permit tracing of responsibility for delays to a specific County department and employee. a. In 30 of 81 sample receipts tested, airport tenants exceeded the due date for payment of rentals and fees. Collection time for these payments ranged from 16 days to 834 days. Total processing time for posting, depositing, and recording all tested receipts added an additional 1 to 52 days for these receipts. b. In 52 of 81 sample receipts tested, the period of time that elapsed from collection of rentals and fees by OMB Airport Finance to receipt of funds from OMB Airport Finance by the Clerk's Finance Department ranged from same day receipt to a delay of 52 days. c. In 61 of 81 sample receipts tested, the period of time that elapsed from receipt of funds from OMB Airport Finance to deposit in the bank by the Clerk's Finance Department ranged from same day deposit to 32 days, with 4 receipts exceeding 4 days or more. 3. Immaterial errors were found in the reversal of end year accruals of receivables for both Key West and Marathon Airports. Criteria 1. Monroe County Administrative Instruction 2300.2.(4)C provides that "If rental payment becomes ten (10) days past due, late notice will be sent to Lessee by Airport Management demanding immediate payment to avoid legal action taken for default of Lease". 2. Monroe County Administrative Instruction 2300.2.(4)D provides that "If rental payment becomes one (1) month past due, the County Administrator will be consulted and, unless extenuating circumstances exist, the County Attorney will be contacted by Airport Management to begin process to evict Lessee. Notice will be sent to Lessee and necessary steps taken by Airport Management to facilitate eviction". 3. Management is responsible for assuring that financial and operating records contain 'accurate, reliable, timely, complete, and useful information. 4. A September 11, 1991 memorandum from the Clerk's Finance Director to the Director of the Office of Management and Budget requested review of airport cash receipt procedures and revision in order to make timely deposits. (See Exhibit H1) 29 T. Deposit And Recording of Airport Revenues: (continued) Effect 1. Infrequent reconciliations, along with excessive processing delays could complicate efforts to reconcile Airport ledgers to the Official Records. 2. No material misstatements or errors were found which would have an adverse effect on the financial statements of Monroe County. Cause 1. On occasion, some receipts have been held, pending resolution of problems or pending an employee's return from vacation. Recommendation 1. Airport Management should comply with the requirements of Administrative Instruction 2300.2. 2. Airport Management should ensure that OMB Airport Finance records contain in accurate, reliable, timely, complete, and useful information. 3. Airport Management should consider a policy of using alternate employees to process billings and receipts during the absence of an employee with primary responsibility for those functions. 4. The Clerk's Finance Depaitiuent should ensure that the Airport Revenue Ledger Book contains accurate, reliable, timely, complete, and useful information. 5. The Clerk's Finance Director should ensure that computer generated financial reports (Official Records) provide sufficient information to Airport Management staff to allow efficient reconciliation with Airport records. 6. The Clerk's Finance Director should ensure that deposits of County Airport Funds are deposited timely on a daily basis. 7. The Clerk's Finance Director should ensure that year-end accruals of accounts receivable for FY91/92 have been properly reversed in FY92/93. County Administrator's / OMB Response Billings [are] done monthly. Letters or calls are made to vendors in arrears. Some revenue is held in [the] Airport Finance Office pending verification of correct amount or settlement of other questions regarding proper payments. On occasion, checks have been returned to payor and a replacement check has been issued. Otherwise, revenue is forwarded to Clerk's [Office] on a timely basis. Also note, reconciliations are done monthly and [the] Airport Finance staff person is never out of the office longer than 5 days. OMB staff will open mail and forward checks if possible to verify that the amount is correct. If questionable, the checks will be held until clarification received. If there r were a vendor in the termination process for whatever reason, the acceptance and depositing of a check could invalidate the eviction process. 30 T. Deposit And Recording of Airport Revenues: (continued) Clerk's Finance Director Response Currently the Clerk's Finance Department monitors the Key West and Marathon airport revenues according to the accrual basis of accounting. We have automated the airport accounts receivable aging report and the subsidiary ledgers for more efficient monitoring and reporting. The records are updated daily, monitored weekly, and reconciled monthly to the appropriate airport revenue account. The accounts receivable aging report is forwarded weekly to the OMB airport office to assist with late notices. The input of cash receipt information has been standardized to assist in efficient reconciliation with airport records. In addition, the accounts receivable aging report and subsidiary ledgers will also be of assistance in reconciliation procedures. It is the policy of the Clerk's Finance Department to make deposits daily. With the aid of the subsidiary ledgers and the accounts receivable aging report, the year end accounts receivable have been properly recorded with a clear and concise audit trail. U. Review of Airport Ledgers Maintained By OMB Airport Finance And The Clerk's ' Finance Department: Condition 1. OMB Airport Finance and the Clerk's Finance Department both individually maintain a ledger of Airport billings and receipts. A review and comparison of billing and receipt postings in both sets of ledgers revealed errors of the following types: a. Outstanding balances not carried forward to subsequent years. b. Unrecorded billings of rentals and fees. c. Unrecorded collections of rentals and fees. d. Erroneous amounts posted. e. Incorrect description (applicable months). 2. Internal Audit obtained assurance that the integrity of the Official Records is intact and can be relied upon; however, the information provided in the revenue subledger may be inadequate for efficient reconciliation purposes. 3. Although the OMB Airport Finance Office and the Clerk's Finance Department both currently have a justifiable reason to maintain an Airport billing/receipt or revenue ledger, the information is similar in nature and maintenance of a double set of books is inefficient. Criteria 1. Management is responsible for assuring that financial and operating records contain accurate, reliable, timely, complete, and useful information. 2. Management is responsible for assuring that operating systems and procedures are designed to promote the efficient use of resources. 31 U. Review of Airport Ledgers Maintained By OMB Airport Finance And The Clerk's Finance Department: (continued) Criteria (continued) 3. Per OMB Airport Finance staff, reconciliations of Airport records to the Clerk's Official Records should be performed monthly. Effect 1. Any current understatement of revenues or collections which may exist in internal management reports has not affected prior financial statements of Monroe County. 1) Prior to October 1, 1992, the County financial statements reported Airport Operations and Maintenance within the General Revenue Fund. The modified accrual basis of accounting was used correctly in accordance with generally accepted accounting principles to record airport revenues when available for use to pay current obligations. 2) Accounts receivable aging reports are prepared on the accrual basis to record airport revenues when earned for the purpose of monitoring collections efforts and have not been used to prepare financial statements. 3) Effective October 1, 1992, the Airports are reported as Enterprise Funds which require the use of accrual basis accounting in accordance with generally accepted accounting principles. 2. Unrecorded collections were successfully traced to deposit in proper bank accounts and recording in the General Ledger (Official Records) by the Clerk's Finance Department. Unrecorded billings and receipts were also found through comparison of balances and posting in the three sets of records. Cause 1. Clerical errors and infrequent reconciliations appear to have caused the errors found in both sets of Airport ledgers. 2. Infrequent reconciliations performed by the OMB Airport Finance Office have failed to detect errors. 3. In general, although the format and medium is different, the information maintained in both sets of Airport ledger books is similar in nature. a. OMB Airport Finance manually records billings and receipts on a personal computer using a spreadsheet program. Billing/receipt printouts are maintained in an Airport billing/receipt ledger for the purpose of monitoring billings and collections of Airport rentals and fees. No accounts receivable aging reports are prepared; however, a monthly activity report is prepared for management review which reports the status of billings and collections. b. The Clerk's Finance Department maintains a manual Airport Revenue ledger for the purpose of preparing accounts receivable aging reports. 32 U. Review of Airport Ledgers Maintained By OMB Airport Finance And The Clerk's Finance Department: (continued) Recommendation 1. Airport Management, OMB Airport Finance staff and the Clerk's Finance Director should coordinate efforts to determine what information is needed on computer reports - to facilitate the record keeping and reconciliation processes. 2. Airport Management should consider establishing a policy for monthly reconciliation of the Airport ledger to the Official Records kept by the Clerk. 3. The Clerk's Finance Director, Airport Management, and OMB Airport Finance Office staff should coordinate efforts to eliminate duplicate accounting procedures performed by both the Clerk's Finance Department and the OMB Airport Finance Office. County Administrator's / OMB Response OMB records [are] maintained for timely response regarding payment/billings from Airport Manager, vendors, etc. Airport revenues, as well as expenditures are, and always have been reconciled on a monthly basis. Requests to correct posting errors discovered when reconciling to the Clerk's Finance Department's official records are also done on a monthly basis. Clerk's Finance Director Response Part of the Clerk's role as Chief Financial Officer is monitoring all financial aspects of contracts and leases. Therefore, the Clerk's Finance Department shall continue to prepare accounts receivable aging report[s] and maintain subsidiary ledgers to ensure compliance with financial conditions as stated in related leases. V. Segregation of Duties: Condition 1. The OMB Airport Finance duties of billing, collection, and recording of airport revenues and fees are not properly segregated. 2. Internal Audit found no evidence to suggest any wrongdoing by the OMB Airport Finance employee. Any suggested recommendations made are exclusively for maintaining adequate internal accounting controls to protect the interest of the County and its employees. Criteria 1. Generally accepted principles of internal accounting control require that duties are assigned to individuals in such a manner that no one individual can control all phases of processing a transaction in a way that permits errors of omission or commission to go undetected. The flow of activities should be designed so that the work of one individual is either independent of, or serves as a check on, the work of another. 2. Employees with cash receipt responsibilities should be independent of related operating and accounting functions, such as billing, invoice processing, accounts receivable, and reconciliation of accounts. 33 V. Segregation of Duties: (continued) Cause 1. OMB Airport Finance staff consists of one employee, who is supervised by Airport Management. This employee is responsible for the duties of billing, collecting, and recording, and reconciliation of Airport revenues and fees within OMB Airport Finance. 2. Collections of Airport revenues and fees are forwarded to the Clerk's Finance Department for deposit in the proper bank account and recording in the County's Official records, but this procedure does not offset the above control weaknesses. Recommendation 1. Airport Management should ensure that duties are properly segregated to comply with generally accepted principles of internal accounting control. County Administrator's / OMB Response Airport Finance has one staff member. At this time, the work load does not dictate any additional staff. We have to also consider budgetary restraints as the Airport operates as an Enterprise Fund and must be self-sustaining. W. Miscellaneous Billing Errors: Condition 1. A November 1992 billing for an airline conducting business at Marathon Airport and billings for a hangar lease at Key West International Airport did not include required sales taxes. 2. In computing rent for non-exclusive rental space, three airline billings prepared by OMB on September 30, 1991 used a rate of $12.80 per square foot per year instead of a rate of $14.72 per square foot per year in accordance with standard rates and charges and the rates established by the specific leases. 3. On several airline billings, the formula for allocating rent for airline non-exclusive rental space was incorrect. Errors were corrected by the preparation of corrected invoices or the application of credits to subsequent billings. Criteria 1. Florida Statutes and Florida Department of Revenue Sales and Use Tax Rules provide the criteria for collecting and remitting sales taxes. 2. Standard Rates and Charges specify the rates and fees which should be used in leases and other agreements for the use of Airport property. 3. Management is responsible for assuring that financial and operating records contain accurate, reliable, timely, complete, and useful information. 34 W. Miscellaneous Billing Errors: (continued) Recommendation 1. Airport Management should establish a procedure for review of billings for accuracy, completeness, and compliance with applicable laws and standards. County Administrator's / OMB Response Computer billing formulas have all been reviewed for accuracy as to proper rent and tax charges and all necessary changes have been made. 35 EXHIBITS f � EXHIBIT A Specific Language Required By Standard DOT Title VI Assurances (Civil Rights) According to the FAA AIP Sponsor's Guide, Standard DOT Title VI Assurances which must accompany applications for Federal financial assistance include an agreement "that where Federal financial assistance is received to construct a facility, or part of a facility, the assurance shall extend to the entire facility and facilities operated in connection therewith". The assurance also requires an agreement from the sponsor that the sponsor "will include the appropriate clauses set forth in Attachment 2 of this assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the Sponsor with other parties: (a) for the subsequent transfer of real property acquired or improved with Federal financial assistance; and (b) for the construction or use of or access to space on, over, or under real property acquired or improved with Federal financial assistance". Appendix II (Attachment 2) of the Sponsors Guide states the following: ' "The following clauses shall be included in deeds, licenses, leases, permits, or similar instruments entered into by the sponsor pursuant to the provisions of Assurance 5(a) and 5(b)." "1. The (grantee, licensee, lessee, permittee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add "as a covenant running with the land") that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulation may be amended." "2. The (grantee, licensee, lessee, permittee, etc., as appropriate) for himself, his personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add "as a covenant running with the land") that: (1) no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) shall use the premises in compliance with all other requirements imposed by or pursuant to 49 CFR, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended." Al EXHIBIT B Specific Language Required By Economic Nondiscrimination Assurance 49 U.S.C.A. §2210(a) states that "In any agreement, contract, lease or other arrangement under which a right or privilege at the airport is granted to any person, firm, or corporation to conduct or engage in any aeronautical activity for furnishing services to the public at the airport, the sponsor will insert and enforce provisions requiring the contractor-- (1) to furnish said services on a fair, equal, and not unjustly discriminatory basis to all users thereof, and (2) to charge fair, reasonable, and not unjustly discriminatory prices for each unit or service, provided, that the contractor may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar types of price reductions to volume purchasers." B1 EXHIBIT C Specific Language Required By 49 CFR Part 27 Nondiscrimination On The Basis Of Handicap In Programs And Activities Receiving Or Benefiting From Federal Financial Assistance 49 CFR Part 27, §27.7(a) states that "No qualified handicapped person shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity that receives or benefits from Federal financial assistance administered by the Department of Transportation." 49 CFR Part 27, §27.9(a) states that "Each application for Federal financial assistance to carry out a program to which this part applies, and each application to provide a facility, shall, as a condition to approval or extension of any Federal financial assistance pursuant to the application, contain, or be accompanied by, written assurance that the program will be conducted or the facility operated in compliance with all the requirements imposed by or pursuant to this part." 49 CFR Part 27, §27.9(b)(2) states that "When Federal financial assistance is used by a recipient to purchase or improve real property, the assurance provided by the recipient shall obligate the recipient to comply with the requirements of this part and require any subsequent transferee of the property, who is using the property for the purpose for which the Federal financial assistance was provided, to agree in writing to comply with the requirements of this part. The obligations of the recipient and transferees under this part shall continue in effect for as long as the property is used for the purpose for which Federal financial assistance was provided or for a similar purpose." Cl EXHIBIT D COMPARISON OF CONSUMER PRICE INDEX INCREASES 1 ' Annual CPI Increases per OMB Airport Finance Records Year 1987 1988 1989 1990 1991 1992 Miami/Ft Laud Overall CPI Nov—Nov 113.8 118.3 123 131 .2 133.5 135,9 % Chg from prior year 4.3% 4.0% 4.0% 6.7% 1 .8% 1 .8% Miami/Ft Laud Overall CPI Avg—Avg 111 .8 116.8 121.5 128 132.3 134,5 - % Chg from prior year 3.6% 4.5% 4.0% 5.3% 3.4% 1 .7% FY FY FY FY FY FY Year 87/88 88/89 89/90 90/91 91/92 92/93 -- Rate Used By OMB 3.1% 2.9% 3.1% 1 .8% Specific Leases: Edward Knight 3.1% Arthur Lujan 2.9% 3.1% Island City Flying Service 0.94% 1 ,07% Marathon Air Services 1 ,07% Marathon Aero Services 3.80% Sails In Concert 3.80% 5.30% 2.9% 3,1% Donald Vecchie 3.80% 5.30% Express Airways — Landing fees 3.1% -- Airport Gift Shop 0,00% 15.43% 0.00% 0.00% 10,74% 10.00% D1 • 1. • • • • CV Cr) 0 02R5/93 PAST 1 -cm, o U.S_ DrDartaaot at Labor _ Bureau of Labor Statistics 1ashiaf t.l1 0-C. 20212 X - - .. - Cosr.r !rice )./es .- -" . C . Alt frban C.nsa.ers - (C71-1.1) r1 • G Sta.i-Fort Lsuderda l.. rL ;i A_- ' .- •-. -._ All items .:.�.___ - - - SEN111/J4L ' _ ►EACE.T CHANGE i 1ST 210 TEAR JAB. FEM. P R_ APB- 11T . JUE JULY AUG- SE►- OC T. 110f- .EC_ NAL7 *ALr 11C. F01-11T9 livt-AM6 W .1977.. • 1 .. = 62-0 _ H _ - Y.c 797II''' L2.5 . - - , A3..'? 6S-I i' 65_/ ef_I_-. /6_6- ._ __` 64-11• 7-1 • 0..1 1979 67_6; _69.0 -. - 49_S 71-I 72-! 74-1 712 11.3 9_9 '--1 M _" 1%D 76.5 . 79.2 11D-5 12.9 12-1 • 53.1 61-1 12_I 73_9" w �= _-_ 1M 25-2 DA_9 11.1 9D_L 93-2 15_3 _ 90-5 14_7 1'.L ._ 19>t2 96_3- `_ %.Z %• . 96.6 SA-2 46_l - 97_I -' 96_7 ... 2_I e_9 1913 %.D' - 96_6 9f_9 49_1 101_1 117_7" 99_9' 4_5 3.3 W • C • - T:" -' 19114 1D2-L' -` 107_7 - iO3_2 103.L 10._2 114_4 702.9 IW_2 1035• 2_2" 3.6 7f15 1D4_L� 1DSS 10l_7 IDL_3 - 107_L il7_9 1063. 107-S 1pt_3•: - -3.4 2.9 f • 1936 101_3 i 106J• 107-3 104_2 106_1 " • 119_1 197.9 101.1 107.9- 1.1 1.3 c.-rni c. • - , 1917 109.9 - 119-7 - 111.1 112-0. 112-5 113_9 110.7 113-0 111.I-•' 4_3 3.6 F 1911 114.5 - 115_1 116_2 - • 116_1 111_2 112_3 1155 110..2 ll®_II 4.0 •.5 co 1999 129_0 . 119.1 120.9 121-6 122_9 12I_I 120.4 122-7 121.5 4.11 4_0 E--• 1990 124.6 123.) 126_4 121-7 130_1 131_2 125-7 130_2 122_0 6_7 5.3 i 1991 131.5 - 132.6 132_9 132.0 152_1 133_5 131_9 132.7 132-3 1- -., 1992 )33.7' 134-5 .133.7 133_1 134_6 135_9 131A_•135-1 131.5 `T7� I! i m. i a' w i N . , 1 , EXHIBIT F , • , • , • .._________ .._. . . . --- - _ - __. . _....._ - . ......_ ,__ • . . .- . :.,, . . • . , . - .. , . ictroir• - •;71 • • ..••••----..... 16.4-finlepap RP: ID •9:)._..138 ... ...— ........— —. ___, , . r— Post•Ir ntand lbx tranamillai momo 7071 0 ol peo.1+ ..• — ........ . . a ..E i v ..q. . OUNTYcorMONROE ..,0,-' lialairan1.111 °.P Merl' tre4,'Jz.L •.. • - '%.,... idIIIMIIIIIIIIIIIIrnon• KF r MST FlOt1104=4o 4— .-st- ' . I30i)291.4441 I .1:/ Iiiirr, .--- • .--.7 , , • 451!" • . 1 _, N.-.4ici.f. .4:4)• . : . • , . . . • 1 , .- - MEMORANDUM . , . To: Sandy Higgs , Executive Director, ' DC • _ ...,. . , , \ FROM: Thomas W. Brown County Administrator SUBJECT; Consumer Price IndeX ENCLOSURE: (1) U,S. Department of Labor Bureau of Labor Statistics Consumer Price Index, All Urban Consumers, Miami-Fort Lauderdale, Fl. , . . DATE: . June 30, 1992 • Please be advised the previous memorandum I sent to you datd ei June 23, 1992, regarding this subject was based upon incorrect information. Enclosure (1) provides the Miami, Florida area CPI Index which the Monroe County Board of County Commissioners has directed to be used es a matter of Board policy. Please note that the "annual average" percent change in CPI or f calendar year 1951 is 3,4% which is in keeping with the Board's policy that the percent change in the CPI ",,.shall be based upon the annual average CPI computation from January 1 .__ through December 33, of the previous year." if you need any additional information regarding this matter, please contact me directly. . • . . • 1 --- Thomas . Brown County Administrator • cc% Mayor HarVoy & Commissioners , ' . ' as% . ...,... ...i, .__ . F 1 ( j! EXHIBIT G STANDARD RATES AND CHARGES - MONROE COUNTY AIRPORTS : , Greiner Study,July 1992 ' 1991 1993 Recommended Rates • Approved Rates % % Existing Future Description 1989 1991 , 1993 Increase Increase Facilities Facilities - Effective Date Eff.10/01/92 Approved change from prior year +3.1%CPI . I KEY WEST INTL -- Terminal Publicly Exposed Space,per sq.ft./annum $14.72 $16.30 $17.93 10.73% 10.00% $19.50 $25.75 ' Non-Public Space,per sq.ft./annum 10.51 11.64 12.80 10.75% 9.97% 14.50 25.75 Covered Areas&Storage,per sq.ft./annum 8.41 9.31 10,24 10.70% 9.99% 12.00 29.80 Landing Fee,per gross landing weight $.55/1000 lbs $.60/1000 lbr $.62/1000 lb: 9.09% 3.33% $.65/1000 Ib! $.85/1000 lbs 12,500 lbs.or less $6.88 mir $7.50 mir $7.75 min. $8.25 mir $10.65 min • -- Land Rental Rate Airline,per sq.ft./annum $0.363 $0.402 $0.402 10.74% 0.00% $0.434 $0.456 General Aviation,sq.ft./annum 0.305 0.337 0.337 10.49% 0.00% 0.364 0.382 _ Fuel Flowage Fee,per gallon delivered $0.03 $0.03 $0.06 0.00% 100.00% $0.04 $0.04 MARATHON Terminal Publicly Exposed Space,per sq.ft./annum $14.51 $16.07 $17.68 10.75% 10.02% $19.50 $35.00 Non-Public Space,per sq.ft./annum 9.67 10.71 11.78 10.75% 9.99% 14.50 35.00 Covered Areas&Storage,per sq.ft./annum 8.06 8.93 9.82 10.79% 9.97% 12.00 35.00 Landing Fee,per gross landing weight $.55/1000 lbs $.60/1000 lb: $.62/1000 lbr 9.09% 3.33% $.65/1000 lb! $.95/1000 lbs $6.88 mir $7.50 mir $7.75 min. $8.25 mir $11.90 min ' , Land Rental Rate . Airline,per sq.ft./annum $0.291 $0.322 $0.322 10.65% 0.00% $0.434 0.456 General Aviation,sq.ft./annum 0.217 0.240 0.240 10.60% 0.00% 0.364 0.382 Fuel Flowage Fee,per gallon delivered $0.03 $0.03 $0.03 0.00% 0.00% $0.04 $0.03 I • G1 EXHIBIT G STANDARD RATES AND CHARGES MONROE COUNTY AIRPORTS Greiner Study,July 1992 1991 1993 Recommended Rates Approved Rates % % Existing Future Description 1989 1991 1993 Increase Increase Facilities Facilities -- LANDING WEIGHTS-Both Airports $6,88 min $7.50 min $7.75 min $.55/1000 $.60/1000 $.62/1000 Aircraft Airline Weight(Ibs) Fee Fee Fee Beech-18 Air Cargo 8,500 6.88 7.50 7.75 9,01% 3.33% ' ' Beech-99 Eastern Express 10,000 6.88 7.50 7.75 9.01% 3.33% Beech-1900 Eastern Express 16,100 9.13 9.96 9.98 9.09% 0.20% Saab-340 Eastern Express 26,500 14.58 15.90 16.43 9.05% 3.33% DC-3 Eastern Express 26,900 14.30 16.14 16.68 12.87% 3.35% F-28-1000 Piedmont 59,000 32.45 35.40 36.58 9.09% 3.33% F-28-4000 Piedmont 69,500 38.23 41.70 43.09 9.08% 3.33% C-402 PBA-Mth 6,200 6.88 7.50 7.75 9.01% 3.33% B-727 Eastern 137,500 75.63 82.50 85.25 9.08% 3.33% - C-208 Federal Express 7,800 6.88 7.50 7.75 9.01% 3.33% Jetstream-31 15,609 -- 9.37 9.68 -- 3.31% Pan Am Express-7 43,500 -- 26.10 26.97 -- 3.33% Brazilia 24,800 -- 14.88 15.38 -- 3.36% ' - Dash-7 42,000 -- -- 26.04 -- -- Dehavilland-8 33,900 -- 20.34 21.02 -- 3.34% ATR-42 American Eagle 36,160 -- -- 22.42 -- -- SWM Comair 14,500 -- -- 8.99 -- -- ' EMB Comair 12,250 -- -- 7.75 -- -- SD-3 Airways Intl 22,600 -- -- 14.01 -- -- G2 EXHIBIT H • ,tin/fi, --_ C,t.a�,.. -- 1 • .1:: ! t;:;•� . ..: ,;i:... . .:ve. 'ti:� '%. t,,..... u,. .'i' ,1:%),. . . .. . . . ..• .. . .1 ...el.',t:;',Ii:‘,Trliirli •t... .... "..:rr :4}t Gl ;y}„y,TI r'::,MEMORANDUM . . • TO: Pam Womack,Director i, ' i Office of Management&Budget ' FROM: Taryn L Medina,Finance Director /' • SUBJECT`: Timeliness of Airport Cash Receipts .... DATE: September 11, 1991• v.( " ,I - It has been brought to my attention that there are at times a lag of greater than a month on receipt of airport revenues and the time when they are transferred to the Finance -- Department for recording and depositing. An acceptable time lag is generally three days • in order to safeguard assets and make investments on our excess cash. Please review the airport cash receipt procedure and revise in order to make timely deposits. , Thank you for your attention to this matter. CC Danny Kohlage ;: Peter Horton - ! :r r:,rx,•ri rr:. C. • i I. • ...n,.w•w�,.,.,.� ..v .. _.. ........ .. .\,•,...., ... . •..1,„.,.... .. .. . ,. . .. . . ..,.�,�..-Lim H1 • EXHIBIT I • • BOARD OF COUNTY COMMISSIONERS MAYOR,Jack London,District 2 OOUNTY oFM 0 N R 0 E �I •T� Mayor Pro Tern,A Earl Cheal,District 4 •� v, Wilhelmina Harvey,District 1 KEY WEST FLORIDA 33040j,i •`!.! •� • Shirley Freeman,District 3 (305)294.4641 Mary Kay Reich,District 5 ?';:; `1 it 1 , till JAN 181994 iI� ' I OFFICE OF MANAGEMENT AND BUDGET INTERNAL AUDIT DEPT MEMORANDUM TO: Charles J. Hansen, Jr. Internal Audit Director FROM: Melonie Bryan, Director Office of Management and Budget, x4482 DATE: January 17, 1994 SUBJECT: Airport Audit - Administration's Responses Enclosed please find the Administration's responses to your draft audit of the Airport Operating Revenues dated August 16, 1993. These responses represent a consolidated response from the Airport Finance Office, Airport Manager's Office and the Director of Community Services Office. Should you have any further questions feel free to contact me. cc: J. Roberts, County Administrator P. Horton, Director - Community Services A. Skelly - Director - Airports B. Moore - Airport Finance Coordinator D. Kolhage - Clerk of Court ll Ii EXHIBIT I AIRPORT AUDIT RESPONSES Section II. Background should read: A. Airport Management is responsible for implementing or renewing airport leases or initiating termination of Airport leases with the approval of the Board of County Commissioners (BOCC) . Sign leases may be approved/executed by the County Administrator. The Office of Management and Budget (OMB) Airport Finance Office will be assuming the lease duties effective immediately. All leases are approved by the BOCC. The OMB Airport Finance Office in conjunction with Airport Management monitors the collection of Airport Operating Revenues. IV. Audit Findings A. General Compliance with Federal Laws, Regulations, and Grants All leases are approved by the County Attorney for legal sufficiency prior to BOCC approval and execution. B. Access to Landing Area from Off-site Location As leases are being negotiated, we are striving for conformity. The County Attorney's Office presently forwards all fully executed documents to the Clerk's Office for recording and distribution, C. East Martello Tower No portions of the East Martello Museum are currently used for airport purposes. The County Attorney's office has been asked to determine whether the Fort is obliged to pay Fair Market Value for the property. Even though we agree with Attorney Ludacer that "the museum has been in place for 50 years before the airplane was invented", we will request the appropriate exemptions from the reverter clause as suggested by the Internal Auditor. (See Letters attached) D. Fair Market Value Rental of Non Aeronautical Leases of Airport Property Fair market value has been assessed and will be billed for all properties at the Marathon Airport. Upon final resolution of the existing lawsuit at the Key West International Airport, the same standards will be applied. I2 . EXHIBIT I Page 2 Airport Audit Response E. Standard Economic Index for Adjustment of Rental Rates Leases are being revised regarding CPI as they are written /renewed. We use the Miami-Ft Lauderdale base as is the adopted standard per BOCC policy. Due to turnover in the Airport Finance staff, miscalculations may have occurred. These errors are now corrected as the leases come up for annual review. F. Standard Rates and Charges Standard Rates and Charges are updated on a regular basis. A Professional Service Order (PSO) with Greiner, Inc. has been executed to accomplish this task in 1994. We will keep the Auditor's comments in mind as we develop the new Rates and Charges. G. Revised Minimum Standards for Commercial Aeronautical Activities by FBO and other Providers We agree that the Minimum Standards are in need of updating, however, we also believe that the investment requirements for FBO's are realistic. The Division Director has reviewed all 3 FBO leases and has determined that the initial investment requirements have been met. Documentation attesting to this fact will be placed in each FBO file. A determination by the FAA has been made concerning the expansion of the existing FBO at KWIA. It has determined that this is acceptable (see FAA Letter attached) . H. Rights of First Refusal Defined by FAA as Exclusive Right No additional leases have been found to contain right of first refusal. No future leases shall contain right of first refusal. I. Flying Club May be A Fixed Base Operator The FAA has determined that if the Marathon Flying Club is used for commercial purposes, the activity would constitute an FBO (see FAA Letter attached) . Therefore, we will continue to insert language in their lease prohibiting commercial activity as we have in the past. It should be noted that the recently negotiated lease with the Flying Club does contain such language. I3 • EXHIBIT I Page 3 Airport Audit Response J. Aircraft Shelter Rental May be a Fixed Base Operator As in Item "I", the FAA has determined that the Pierce hanger would be an FBO by definition if commercial activity is conducted on the premises (see FAA Letter attached) . Therefore, commercial activity will be' prohibited as it has been in the past and any lease renewal will contain language prohibiting such activity. R. Delegation of Authority to Fixed Base Operator The FAA has determined that the sublease by Island City Flying Service to Key West Aeroplane Tours, Inc. does not violate FAA Order 5190.6A, Paragraph 4-2C (see FAA Letter attached) . However, they have also determined that the sublease of a portion of the ramp to Key West Aeroplane Tours, Inc. is considered a separate FBO. Therefore, when the Minimum Standards are revised, we will have to exempt such activities from the standards as long as they are a sublease portion of an existing FBO. L. Subordination of Title No subordination has taken place and no encumbrance has been placed on airport property. See Letter dated October 21, 1993 from Spottswood, Spottswood and Spottswood addressing this issue (copy attached) . The FAA agrees with Attorney John M. Spottswood, Jr. and states that this does not violate any FAA regulations (see FAA Letter attached) . M. Rental Rates of Several Leases Differ from Standard Rates & Charges Airport Finance Office files will be updated to include justification for variances from Standard Rates and Charges. The FAA has determined that the $6,900. flat fee "does not appear to be discriminatory. " N. Untimely Execution of Board Approved Leases We will ask the County Attorney's opinion regarding deadline clauses in leases and will proceed based on the opinion rendered. We have started a practice of calling the vendors for signatory contact name and addressing the copies to be executed to said contact. I4 EXHIBIT I Page 4 Airport Audit Response 0. Gift Shop Gross Revenue Fee The intent is for collection of gross revenue fee for full year - collected annually. This has been clarified in the new lease agreement which was approved by the BOCC on 11/10/93. P. Compliance with Lease Requirements for Periodic Rental Increases _ Car Rental leases are currently being reviewed and we are requesting a breakdown of rent payments from the vendors. Where it is evident that a rent increase is needed, the vendor will be billed accordingly and notified of said increase. Tickler file established for tracking of rent/fee increases, Q. Billings for Additional Space The FBO at Marathon is paying the correct amount. The most current addendum to lease agreement is all inclusive - covering total space rented. The FBO at KWIA has been contacted and is now paying rent for all additional space. Rent for both of the above FBO's was raised in Fiscal Year 1993 and letters regarding same were sent to the operators. R. Certain Airline Rentals are Exempt from Florida Sales Taxes This office has procured the current handbook governing Sales Tax and Uses from the Department of Revenue (DOR) . A phone call on 10/20/93 to Lourdes at DOR revealed that ticket counters, storage areas and office space for airlines are all taxable, Areas for loading and unloading of passengers is not taxable. She will be sending the most current written documentation regarding this matter. S. Florida Department of Revenue Sales Tax Adjustment All back taxes on taxi rental space has been paid. I5 EXHIBIT I • Page 5 Airport Audit Response T. Deposit and Recording of Airport Revenues Billings done monthly. Letters or calls are made to vendors in arrears. Some revenue is held in Airport Finance Office pending verification of correct amount or settlement of other questions regarding proper payments. On occasion, checks have been returned to payor and a replacement check has been issued. Otherwise, revenue is forwarded to Clerk's on a timely basis. Also note, reconciliations are done monthly and Airport Finance staff person is never out of the office longer than 5 days. OMB staff will open mail and forward checks if possible to verify that the amount is correct. If questionable, the checks will be held until clarification received. If there were a vendor in the termination process for whatever reason, the acceptance and depositing of a check could invalidate the eviction process. U. Review of Airport Ledgers Maintained by OMB Airport and Clerk's Finance Dept. OMB records maintained for timely response regarding payment/billings from Airport Manager, vendors, etc. Airport revenues, as well as expenditures are, and always have been reconciled on a monthly basis. Requests to correct posting errors discovered when reconciling to the Clerk's Finance Department's official records are also done on a monthly basis. V. Segregation of Duties Airport Finance has one staff member. At this time, the work load does not dictate any additional staff. We have to also consider budgetary restraints as the Airport operates as an Enterprise Fund and must be self-sustaining. W. Miscellaneous Billing Errors Computer billing formulas have all been reviewed for accuracy as to proper rent and tax charges and all necessary changes have been made. I6 EXHIBIT J �GOVNI�O'. 1 fannp IL. 1 o jage BRANCH OFFICE CLERK OF THE CIRCUIT COURT BRANCH OFFICE 3117 OVERSEAS HIGHWAY MONROE COUNTY 88820 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 500 WHITEHEAD STREET PLANTATION KEY, FLORIDA 33070 TEL.(305)289-6027 KEY WEST, FLORIDA 33040 TEL.(305)852-7145 TEL. (305)292-3550 MEMORANDUM TO: Charles Mansen Internal Audit Director FROM: Sandra Carlile Finance Director RE: Monroe County Airport Operating Revenues Audit DATE: January 31, 1994 I The following are my responses to the Monroe County Airport Operating Revenues Audit Findings as related to the Finance Department: Section III - Details of Audit Findings • T - Deposit and Recording of Airport Revenues Recommendation 4 - The Clerk's Finance Department should ensure that the Airport Revenue Ledger Book contains accurate, reliable, timely, complete, and useful information. Response: Currently the Clerk's Finance Department monitors the Key West and Marathon airport revenues according to the accrual basis of accounting. We have automated the airport accounts receivable aging report and the subsidiary ledgers for more efficient monitoring and reporting. The records are updated daily, monitored weekly, and reconciled monthly to the appropriate airport revenue account. The accounts receivable aging report is forwarded weekly to the OMB airport office to assist with late notices. Recommendation 5-The Clerk's Finance Director should ensure that computer generated financial reports(Official Records)provide sufficient information to Airport Management staff to allow efficient reconciliation with Airport records. I I J1 EXHIBIT J Page Two Charles Mansen 1/31/94 Response: The input of cash receipt information has been standardized to assist in efficient reconciliation with airport records, In addition, the accounts receivable aging report and subsidiary ledgers will also be of assistance in reconciliation procedures. Recommendation 6-The Clerk's Finance Director should ensure that deposits of County Airport Funds are deposited timely on a daily basis. Response: It is the policy of the Clerk's Finance Department to make deposits daily. Recommendation 7 -The Clerk's Finance Director should ensure that year-end accruals of accounts receivable for FY 91/92 have been properly reversed in FY 92/93. Response: With the aid of the subsidiary ledgers and the accounts receivable aging report, the year end accounts receivable have been properly recorded with a clear and concise audit trail, U - Review of Airport Ledgers Maintained by OMB Airport Finance and the Clerk's Finance Department Recommendation 3 - The Clerk's Finance Director, Airport Management, and OMB Airport Finance Office staff should coordinate efforts to eliminate duplicate accounting procedures performed by both the Clerk's Finance Department and the OMB Airport Finance Office, Response: Part of the Clerk's role as Chief Financial Officer is monitoring all financial aspects of contracts and leases. Therefore, the Clerk's Finance Department shall continue to prepare accounts receivable aging report and maintain subsidiary ledgers to ensure compliance with financial conditions as stated in related leases. Should you require any further information, please call me at extension 3560. CC: Danny Kolhage, Clerk of the Circuit Courts Scott Adams, Accounting Specialist J2 EXHIBIT K fl) U. S. Department Orlando Airports District Office of Transportation 9677 Tradeport Drive, Suite 130 I Federal Aviation Orlando, Florida 32827-5397 Administration December 21, 1993 RECEIVED K.W. INTL. AIRPORT DEC 23 �yy� Mr. A. R. Skelly Director of Airports C r' , • Key West International Airport i�� 3491 South Roosevelt Boulevard , DEC 2 7l9Q3 Key West, Florida 33040 \\ Dear Mr, Skelly: In response to your November 17, 1993, request for clarification of certain paragraphs of the Monroe County Preliminary Audit Report Draft, we offer the following comments: Paragraph F. Is the use of different land rental rates for general aviation and airlines a violation of FAA regulations? No. Lease rates must only be "equitable. " Paragraph G. Request for final FAA determination of existing FB0 leasing additional ramp space at Key West International. FAA has determined that the expansion of the existing FBO into new facilities is acceptable. Paragraph I. Marathon Flying Club as an FBO when used for commercial purposes. Yes, this activity constitutes an FBO. Paragraph J. Same question as "I, " concerning Charles Pierce hangar. Yes, this activity constitutes an FBO. F, C-T , PARTNERS IN CREATING TOMORROW'S AIRPORTS K1 EXHIBIT K 2 • ' Paragraph K. County/Key West International Airport FBO lease questions. Subleasing arrangements usually require prior concurrence of sponsor. The activity described does not violate FAA Order 5190. 6A, Paragraph 4-2C. The 6-acre ramp sublease Is considered a separate FBO, Paragraph L. Consent and Estoppel question. This approval does not violate FAA regulations, . Paragraph M. FY-94 Rates and Charges for terminal space, etc. Based on our limited review, 1t does not a discriminatory. PIS ar to be For your information, a local citizen provided us with a copy of the complete audit report which included issues other than those mentioned above. We would appreciate receiving a copy of the County's final response to the auditor, when available. Sincerely, W, Dean Stringer Acting Manager • • K2 I • j I EXHIBIT L r. .. _ BOARD OF COUNTY COMMISSIONERS _ MAYOR.Jack London,District 2 C OUNTYLofMONROE • I~ Mayor Pro Tar A Earl trio t District 4 +• .•��i Wilhelmma Harvey,District t '•��.P. "`�••• ei Shirley Freeman District 3 KEY WESTl ORk)4 33040 '•• •' 13051 294.464 t 1 � :�� Mary Kay Reich.District 5 B.G 11" ••-P.ar A A. R, Skelly ,, - Director of Airports Key West International Airport 3491 South Roosevelt Boulevard ' - 1* Key West, Florida 33040 November 17, 1993 Mr. Charles Blair f L F� �i� � •� 1 Federal Aviation Administration Orlando Airports District Office , 9677 Tradeport Drive, Suite 130 Orlando, FL. 32827-5397 ( L I Dear Mr. Blair, A recent internal audit, of Airport Operating Revenues raised several questions concerning various aeronautical leases at both the Marathon and Key West International Airports. Copies of the audit comments are attached and I request clarification of the following paragraphs from the report . F. Is the use of different land rental rates for general aviation and airlines a violation of FAA regulations? (See Gl-G2 and Attachment 1) . G. Request a final determination of the existing FBO leasing additional ramp space at Key West Int'l Airport to accommodate a 1989 need for additional tie down space. (See attachment ( 2) , FAA letter of August 4, 1989 and responses. ) I. The Marathon Flying Club does not meet the FAA definition of a "flying club" and never intended to. It is a group of 9 aircraft owners who built, and over the past 20 years have sold and resold, 9 open bay shade hangars • connected together in the NE corner of the airport. It is a "flying club" in name only. Unfortunately, aircraft — maintenance repairs or aerial photography entrepreneurs who are non-hangar owners have occasionally used a bay for commercial purposes. Does this activity make the Marathon Flying Club an Ff3O? Note: A proposed lease renewal is attached as Attachment 3 which includes language prohil:it i.n,a the tlse of this hangar area for cnmro••l c1;+l purpo:;r,:;, J . 'rh:• (:harlot; Ptotcy tot,' (Jungat is identical to the M.:r,,thon Flyi 'tq I,,ti I.Ilnq but .seprtr.utc:d from it. by L1 • EXHIBIT L about 75 feet . The same conditions and questions that were discussed in paragraph I above, apply to this situation. K. The lease between the county and the Key West Int' l Airport FBO (Island City Flying Service) allows them airport use and privileges which include "the operation and sale of air taxi, ambulance and sightseeing flights". The FBO subleases a small area of their 6 acre ramp to Key West Aeroplane Tours, Inc. for the operation of sightseeing and banner-towing operations. Is this sublease a violation of FAA Order 5190.6A para. 4-2C? Is this sublease to be, considered a separate FBO? L. Does the approval of a Consent & Estoppel violate FAA regulations? See attachment (4) for an opinion from the attorney representing the FBO. M. -Attachment ( 1) lists the FY94 Rates & Charges for terminal space, landing fees, and land rental rates for both Key West and Marathon. Request your determination if the minimum fee for terminal space ($575/month) is discriminatory. Your response to these questions is required for me to close out this audit report. I thank you in advance for your usual outstanding cooperation in resolving these matters. Sincerely, A. R. Skelly, Director of ports ( I L2 EXHIBIT M • ER EC E. , SPOTTSWOOD, SPOTTSWOOD AND SPOTTSWOOD OCT 1��-. l9�(J ATTORNEYS AND COUNSELORS AT LAW 111 7 POST OFFICE DO% 1900 MR SO0 FLEMING STREET AIRPORTS/OMB KEY WEST.FLORIDA 70041.1l00 JOHN M. SPOTTSWOOD.JR. TELEPHONE WILLIAM D. SPOTTSWOOD ]OS•IS•••SS{ R ODERT A. SPOTTSWOOD.P.A. October 21, 1993 TELECOPIER OF COUNSEL: 00S•010• Ipi JOHN M.SPOTTSWOOD(1920.197S) Art Skelly, Director of Airports Key West International Airport 3491 South Roosevelt Boulevard Key West, FL 33040 • Re: Lease with Monroe County for Island City Flying Service, Inc. rl Dear Mr. Skelly: The purpose of this letter is to respond to the County Auditor' s comments concerning the Leasehold Mortgage on the above-referenced Lease. FAA Order 5190 . 6 is not applicable to the financing in existence between Island City Flying Service and First National Bank. The Rule requires certain procedures to be followed in order for the County to subordinate title to its property. If that were to occur, the County could lose its property to the Lender if the terms of the Mortgage were not kept. This is not the case with a Leasehold Mortgage. The facts of this situation are that the County leased the property to Island City Flying Service . Island City then assigned this Lease to the Bank as security for a Leasehold Mortgage. In the event that the Lessee did not meet its obligations under the terms of the Mortgage, the Bank' s remedy would be to step into the shoes of the Lessee and perform all terms and conditions of the Lease as if it were the Lessee . This would also be applicable to any Assignee of the Bank. Under this scenario, the County has an unsubordinated Lease with Island City and, therefore, the above-referenced FAA Order is not applicable, I hope this clarifies the questions raised by the County Auditor. If you require any further information, please call. Sinc rely, HN . SP TTSW OD, JR. JMSjr/edc cc: Island City Flying Service Joe Kelinson, County Attorney's Office Ml EXHIBIT N . . ,...,,._ BOARD OF COUNTY COMMISSIONERS MAYOR,Jack London,District 2 OUNTYLOINIONROE i • Mayor Pro Tem,A Earl Cheat,District 4 •���' Wilhelmina Harvey,District 1 KEY WESTLORIDA 33040 '44.107 ` 1 Shirley Freeman,District 9 (305)294-4641 Mary Kay Reich,Dlstnct 5 _e leb rnunty Attorney's Office 310 Fleming Street, Room 28 , Key West, FL 33040 ,tl I)'� (305) 292-3470 NOV - 4 1993 MEMORANDUM TO: Peter Horton, Director Community ServicesDivision FROM: Randy Ludacer `` J/^_ County Attorney / SUBJECT: Special Report on Airport Revenue Diversion Produced by Spiegel and Mick Diarmid DATE: November 3, 1993 I have reviewed the report of October 4th, which you furnished, and find the issues very interesting. With respect to our own situation, I am trying to get some resolution of the title problems concerning the Martello Fort resolved so that it will not be under the reverter clause commonly contained in Federal deeds of that period. Additionally, I hope we will not have to go through any paper accounting to the Airport for the museum which has been in place for 50 years before the airplane was invented. RL/pr cc: Art Skelly • j- Utak) Altir27-- &L..- Ni EXHIBIT 0 • REC V D• - ••Iranslniltal memo 7671 col p"aoe /3 SPIEGEL & MCDIARMID QUO NEW YORK AVENUE,N W • WASHINOTON.O.G.20003.4769 TELEPHONE IZ021 079.4000 d q i IZPoArs- 7El CCOP'EA 12oz1 393•2e6e none SOCIAL REPORT ON "ALMRO T REVENUE DIVERSION" • TO: Airport Directors and Attorneys FROM: Jack Corbett and Rise Peters DATE: October 4, 1993 RE: SPECIAL REPORT ON INCREASED FEDERAL ATTENTION CONCERNING "AIRPORT REVENUE DIVERSION" AND "SELF- SUFFICIENCY OF AIRPORT FEES AND CHARGES" Every report that Airport Dlec,tors receive these days from Washington, D.C. , seems to suggest that yet another Federal agency is investigating whether "airport revenue is being diverted to non-airport purposes" or that still another Congressional Committee is legislating against the phillty of such diversion. This special report (1) clarifies what various components of the Federal Govei••nmest are doing on this issue, (2) seeks to aggist Airport Directors in explaining two Airport Improvement Program (AIP) "Sponsor Assurances" to interested offiriai9 of their parent goverrunents, and (3) provides guidance in defending against "airport revenue diversion" claims if the DOT'S Lru.ipeCtor General's (IG) staff plans to audit their airports' accounts and 1easPs 1, REASONS FOR INCREASED FEDERAL CONCERNS There are four reasons for intensified Federal scrutiny of this issue. First, the City of Los Angeles has indicated its desire to "legally divert" $30 million of LAX airport revenue to general municipal purposes (by a site specific amendment to Federal law), The airlines have strongly opposed this possibility• Second, the Federal Government can indicate its concern about the financial losses the airline` have suffered without any cost to the U.S. Treasury's ds 'The City of Los Angeles by ordinance has also substantially increased its landing fees on airlines, which had been constrained for decades by a prior residual use and leoqi> agreement. In their lobbying, media and litigation e.tlor*.s, the airlines have sought to combine both issues, i.e. , "LAX is Lncreasing its Landing fees so it can divert airport revenues." The issues are separable but other airports that seek to Increase landing fees to cover their airlines' fully allocated costs for airfield lose could aLso be tarnished with the "airport revenue diversion" brush. c ar TODd-�'>Z-;off 1I ,kA1Nfl0J 30bN0w ZTO' oN �,O� dT b. _ 1 �30 01 . EXHIBIT 0 by being "tough" on "airport revenue diversion.''' Third, based on its audits to date the DOT Inspector General has concluded that some airport sponsors are violating their AIP Sponsor Assurances with respect to revenue diversion and that FAA should be taking an activist approach to finding violations. Lastly, to the extent that airports divert revenue or fail to generate revenue from lease of their assets, there is increased pressure from these airports for additional AIP discretionary funds for capital projects, • 2. WHAT THE CURRENT LAW IS • There are three components of current law that Airport Directors should understand. Primarily, there's so-called "Assurance 12" that limits the use of airport revenue by sponsors who have signed ALP Grant Agreements or have Surplus Property Act property, Secondly, there's language in that Assurance that "grandfathers" certain arrangements that predate September 3, 1982 (or December 31, 1987 for aviation fuel taxes). Lastly, there's so-railed "Assurance 9" that requires airports to be "as self-supporting as possible," in part by charging appropriately for use of their land and other assets, a. Assurance 12 The Airport and Airway Inprovement Act of 1982, as amended (AAIA), requires (at 49 U,S,C. 2210(a)(12))' that the Secretary of Transportation receive written a_seurances, before granting funds under the Act, that (among other things): [GENERAL RULE] [A]ll revenues generated by the airport, if it is a public airport, and any lnc ( taxes on aviation fuel (other than taxes in effect on the date of the enactment of the Airport and Airway Safety and Capacity Expansion Act of 1987) will be expended for the capital or operating costs of the airport, the local airport system, or other local facilities which are owned or operated by the owner or operator of the airport and directly and substantially related to the actual air transportation of passengez-s or property; 'It is interesting that virtually all the concerns expressed by the Federal Government have focused on alleged diversions of airport revenues benefitting the public sector, e.g. , the parent governmental body operating the airport or neighboring Jrral governments. There is scant concern expressed that aviation's private sector, the airlines and general aviation, are paying less than their full share of airport capital, operating and maintenance costs at hundreds of smaller airports. At major cities, individual "hubbing" airlines . have ber,efitted specially from airport revenue loaned to financially troubled airlines (Northwest and TWA); Nashville initially had proposed to purchase an international route for use by American Airlines with airport revenue. 'The identification of the Sponsor Assurances reflects the numbering of the paragraphs in section 2210(a) of the AAIA. The Assurances actually signed by an A1P grant recipient have a different numbering system, 2 ZO' d ZIO' eN 01 : Di t f.,90 D30 TODD Z6Z-SOL QI ll lNilG0 30dNOW 02 EXHIBIT 0 - \ • [GRANDFATHER CLAUSE] except that if covenants or assurances in debt obligations issued before September 3, 1982, by the owner or operator of the airport, or provisions enacted before September 3, 1982, In the governing statutes controlling the owner or operator's financing, provide for the use of the revenues from any of the airport owner or operator's facilities, including the airport, to support not only the airport hut also the airport owner or operator's general debt obligations or other facilities, then this limitation on the use of all other revenues generated by the airport (and, in the case of a public airport, local taxes on aviation fuel) shall not apply. Assurance 12 address taking existing revenue off the airport for some non-airport purpose. The general rule suggests that airport revenue must be used for the capital or operating costs of the airport where it was generated, or for other airports in the sponsor's system, or, for example, for a mass transit station constricted on airport property by the airport's,parent government (but probably not the costs of the rail system's guideway to the airport and rolling stock). To the extent airport revenues are used for purposes other than these, airport funds are "diverted" either legally or illegally. b. Grandfatl}er Clause The grandfather language at the end of Assurance 12 allows the legal diversion of airport revenue in those uses predating the 1982 law where a public agency (such as a multipurpose port authority) had issued bonds for many transportation purposes and revenues and expenditures weren't kept on a modal basis, Also, until the end of 1987 an airport sponsor could collect aviation fuel taxes and use the revenue for non-airport purposes. The 1987 amendments to the AALA prohibited additional airport sponsors from imposing and legally diverting such local aviation fuel taxes.' GAO recently testified in Congress than ten of the largest nineteen airports it had polled had some grandfathered airport revenue that was being legally diverted. No additional "grandfathering" will be authorized by Congress. c. Assurance 9 In addition, the DOT Secretary is also required (at 49 U.S.C. 2210(a)(9)) to be assured that: the airport operator or owner will maintain a fee and rental structure for the facilities and services being provided the airport users which will make the airport as self-sustaining as possible under the circumstances existing at that particular airport, taking into account such factors as the volume of traffic and economy of collection.... 'It is unclear whether an airport sponsor whose aviation fuel tax was grandfathered in 1987 could thereafter increase the rate of such tax and legally divert the extra revenue as well. 3 • 520'd ZT0' oN OT : VT 16,90 330• AA1Nf103 30eINON 03 EXHIBIT 0 Assurance 9 thus is different from Assurance 12 since its focus is on the non- receipt of revenue to the airport to the extent of value given. Charging thr_. parent government, a sister agency or a neighboring municipality too little--less than the value (or, possibly, cost) of the asset or service provided -- is also considered a diversion of airport revenue for non-airport purposes, This requirement to maximize the self-sufficiency of the airport is mirrored in the Surplus Property Act. 3, AUDIT STANDARDS AS APPLIED BY DOT'S INSPECTOR GENERAL The Department of Transportation's Office of Inspector General ("IG") has undertaker) audits of selected airports to evaluate the effectiveness of FAA's Airport Compliance Program and to comply with the direction received from the House DOT Appropriations Subcommittee. I Almost two dozen IG audit reports on eased over the past two years and others are in process. I1has indicaterts have d tnhat i twill issue a nationwide audit report summarizing the results of these audits and relating sponsor internal control weaknesses to FAA's compliance program. Audited a'Pc to that IG s Pied as being completely in compliance with Assurances 12 and 9 are: Palm Beach (FL), Nashville (TN), Salt Lake City (UT), Dallee-Ft. Worth (..TX) and Massport (MA). • The IG's audits primarily focus on whether FAA's procedures have been adequate to assure that airport sponsors were complying with the revenue accountability requirements imposed when they accepted (1) Federal grants-ln- aid under the ALP program or predecessor acts and/or (2) Land or other property under the Surplus Property Act of 1944, as amended ("Surplus Property Act").' The IG found that in numerous instances FAA'e compliance efforts were insu.fit ent to assure that airports were fulfilling those requirements. While the FAA's policy has been to rely on the self-certification of airport sponsors, single audit results, and third party complaints to disclose compliance violations, the DOT. IG takes a more aggressive approach, The IG's audits were performed in accordance with Government Auelitinq Steedards prescribed by the U.S. Comptroller General. 1G auditors reviewed (and relied on, to the extent 'One audit involved primarily non-revenue assurances. In reviewing Airport Improvement Projects performed by the Houston Department of Aviation the IG Report discussed other areas of noncompliance, such as failures to complete projects without undue delay, to set out In writing and adhere to proper procurement techniques, to include only eligible costs-in claims for FAA reimbursement, and to follow proper change-order procedures. In addition, the IG found that Houston had failed to follow land acquisition requirements, The e'ty's tiles did not show the cpielieications of appraisers, • did not contain negotiator records, and did not contain adequate proof of title. Appraisals were not submitted to FAA for approval before the land was Purchased, and no review appraisal certificates were prepared. The final non- revenue area audited in Houston involved conflicts of interest; the IC found that the Department did not have adequate controls to prevent conflicts of interest, as required by Federal regulation. 4 VO'd Z TO' oN T T; r T 26.90 030 1 O Z6Z-SOs:a I A,.1N1100 302JN01,1 04 EXHIBIT 0 • possible) CPA and airport internal auditors' workpapers covering the airport's single audit when receiving a Federal grant. In addition, the IG evaluated and tested each airport's internal controls for land leases, fee, rental, and investment revenues, and disbursements, generally for a three fiscal year period. Further examination of the. paper record included review of the applicable FAA Region's files on the airport, including the approved ALP and airport land use plans. Beyond looking at the paper record, the IG also interviewed FAA Regional personnel and airport staff, toured each airport, and identified vacant land, and aviation and non-aviation uses of property at each airport. The IG's review did not include an evaluation of landing fees or terminal leases at any airport, although it did cover other aeronautical leases. In many instances, the IG turned up practices that it stated were in noncompliance which FAA either had not been aware of or had not felt were noncompliant. 4. RESULTS OF IG AIRPORT AUDITS UNDER ASSURANCES 12 AND 9 Here's a summary of the major IG audits to date. Airport Directors are advised to have general familiarity with these fact patterns in case pressures arise for similar actions in your area, a. Violations of Are ranee 12, thg prohibition on revenue diversion • The IG found that a number of airport sponsors had diverted airport revenues to non-airport uses in alleged violation of 49 U.S.C. 2210(a)(12). Several instances involved diversion of funds from the airport to the sponsoring city or county's general fund, either through direct payments, payments in lieu of taxes or payments that exceeded the value of services provided, or otherwise. 1. Diverfuon of airport revenue • szrjy____agatzaLtaaa At St. Louis-Lambert International Airport, the IG discovered that when AT&T's contract for payphone service in the airport terminal was renegotiated to cover payphone service in public premises throughout the city, all revenues under the unified contract were deposited in the city's General Fund. The IG pointed out that the revenues properly attributable to the airport concession were airport revenues, and should have been transferred out of the General Fund and into the airport account, Miami-Dade County, Florida, transferred funds from the airport account to the county general fund that were not earmarked for airport or airport-related projects. Because the funds were commingled, the IG could not determine if they were used for airport purposes, and thus concluded that they were not, 2. Use of airport revenue for general economic development marketing and promotional activities The El Paso (Texas) City Council authorized use of airport funds, in excess of the airport-specific amount normally paid by the airport each year, for market development by the City's Economic Development Administration. This action was 5 SO' •� ZTO' eN '.1 : PT ^_? 90 J3Q TObh-?�5Z-SO£:t]I AJ,1Nl0J 30JN0i^I 05 • • EXHIBIT 0 • taken without approval of the airport manager or FAA. Because of adverse local publicity, the authorized money had not been taken out of the airport's account, and the matter could be remedied by rescinding the authorization, • Similarly, Miami-Dade County, Florida, required the airport to use airport funds for non-airport related promotional activities, such as co-sponsoring local events including a golf tournament, trade shows, scholarship banquets and film festivaLS, 3. Payments to compensate neighboring c ity for lost tax revenues The IG also found revenue diversion by the Broward County (Florida) Aviation Department ("BCAD"). The BCAD, which operates the Ft. Lauderdale Hollywood International Airport, used airport revenue neighboring city for property tax revenues lost bythe city after BCAD acquired land within the city for airport expansion and removed the land from the city's tax base, Although the money in question was ostensibly paid for backup fire protection services, IG found noncompliance because the agreement to pay specified that the payments would end when the city annexed sufficient property to make up the lost tax revenues, • 4. Payments-in-lieu-of-taxes, or other assessments in excess of value of services provided Palm Springs, Calf fornia, was found to have diverted airport revenues off- airport where the City Council, by resolution, required In Lieu of Property Fee Payments totalling $740,000 in 1990 and 1991 to the City's General Fund. The IG looked at the value of services provided by the City and determined that$557,332 were legitimate expenses for which the City was properly reimbursable, and recommended that FAA require refunding of approximately $183,000. El Paso, Texas, was found to have charged the airport special assessments beyond the city's approved indirect cost allocation plan, Those special assessments were not documented or levied against other governmental cost centers. Special assessments included a percentage charge on airport revenue generated by parking, car re.ntalq, rental car parking, foreign trade zone, and ground rental leases, which the city said was justified by increases in traffic from the airport, However, there was no evidence to support the assessments. In other instances, items included under the special assessment were already being charged under the indirect cost allocation plan; in one case (legal services) the airport was being charged directly as well, resulting in triple-charging. The State of Hawaii Department of Transportation Airports Division (HDOT) was found to have transferred state airport revenue funds to the general fund which were significantly in excess of indirect statewide costs allocable to the airport, The excessive transfer was required by state law which imposed a 5 percent surcharge on airport receipts. FAA had previously found that the state law was not violative of grant assurances because it fell within the exception provided in 49 u.s.C. 2210(a)(12) for "grandfathered" charges. The IG disagreed, pointing out that the grandfathering language applies where the funds are being used to support the airport owner's general debt obligations or other facilities, an exception which the IG felt did not apply in the case of a straight 6 • 90'd ZIO' oN c i ; PI 26, 90 J3i] IODd-?.6?.-S02 QI J,J.1Nf10J 30'Jh10W 06 EXHIBIT 0 transfer to the general fund. • ) The Houston Department of Aviation agreed to pay a flat rate of $200,000/month for indirect cosh. However, the IG found that the approved indirect cost allocation plan produced a lower figure for the actual indirect costs, and there was no procedure in place for adjusting the agreed-upon amount to the actual costs, 5. Charges not included in an approved indirect cost allocation plan FAA Order 5100.38A, the Airport Improvement Program Handbook, states that indirect costs are allowable as a cost element for an AIP grant only if the airport sponsor has an approved cost allocation plan, The IC found that Dade County, Florida had received re.imburse.nent for indirect costs that were based on an unapproved allocation plan. According to the IG, the plan has not been audited to determine the accuracy of the cost allocation basis or reasonableness of the costs allocated, even though FAA's ADO approved the plan contingent on such an audit, b. Vialationa of Assuranoa a the rem�trolr�enthah t a resorts ma�dmize financial self--auftziancy 1. Leases at below-maret rates In general, the IG inquires whether the airport sponsor is receiving "fair rental value" on leased airport land. Fair rental value, the IG said, "is a market based concept. After the [fair market value] of a parcel is established by appraisal, fair rental value is determined by using the percentage of FMV commonly used in the local area by the private sector to set fair rental value." The IG generally estimated that fair rental value should be a firm 10 percent of appraised fair market value (that is, a piece of property with an appraised fair market value of $100,000 would have an annual fair rental value of $10,000),` Thus, before an airport can set fair rental values for airport property, It must have that property appraised. One of the most common failings spotted by the IG was failure to have airport property appraised before leasing and to consistently ilea those appraisals to set rental prices. For example, in its audit of the Memphis-Shelby County Airport Authority, the IG found that the Authority did not receive fair rental value on 14 of 25 yLuund leases reviewed because the required appraisals had not been obtained. 'The IG asserted that "indirect rent benefits" such as tenant financed improvements that will later revert to the airport, or the provision of services such as fire protection or mosquito control, were considered in evaluating whether fair rental value was received. However, in some instances in which the airport's reply to the draft audit report cited such benefits, no changes were made in the findings to take such benefits into account. In addition, as discussed elsewhere, non-aviation related benefits such as general economic development, job creation and the like were not considered. 7 , )0' 3 'TO' °N bT : 1 26 'l0 D3f] TODD-7,6Z-30;UI J.Il�If100 3021N0N 07 • EXHIBIT 0 • The IG's audit of the Greater Orlando Aviation Authority also revealed that appraisels had not been secured for all property. IG complained that ground leases to rental car companies did not return fair rental values. While the IG recognized that car rental companies generate "a substantial amount of revenue" to the Authority, it attributed that revenue to terminal concession agreements and not the long-term leases because the Authority's accounting system classifies the revenues in a different cost center from the lease revenues, and because the ten-weal concession agreements and long term leases refer to each other only in cancellation clauses. The IG stated that the. Authority could not substantiate its claim that added revenue from car, rental companies justified the low rental rates. Looking at aviation use percale, the IG cited as noncompliance a lease of a hangar and ramp space used by a Sheriff's Department helicopter unit. The lease was under a short-terns space use perrnit that was renewed each year. No appraisal had been obtained, 2, Leases at below-market rates to the sponsor or other public entities The IG also found that dollar-a-year leas to neighboring governmental bodies may violate the "self-sufficiency" language of 49 U.S.C. 2210(a)(9). In • auditing the New Orleans International Airport, the IG found that airport land had been leased for el/year to the neighboring city of Kenner. Since 1976, Kenner has used airport land for softball and soccer fields, tennis courts, pang lots, a gymnasium and a scrap equipment yard. Similarly, the IG's audit of Palm Springs, California, revealed that the sponsoring City was using 68 acres of airport land, without payment, as the sites for its wastewater treatment plant, for city fleet maintenance, and for city hall, council chambers, and a power plant. The Hillsborough County Aviation Authority was found to have leased three parcels to municipal tenants who were required to provide in-kind services (such as police protection and mosquito conteol) in lieu of monetary rental payments. However, while the leases required that the value of the services provided be equal to or greater than the fair rental value of the land, no system was in place to measure the value of the services. The IG's valuation of the services, based on cost data provided by the tenants, showed the services to be worth less than the fair rental value, 3. Failure to market vacant land Failure to market vacant land was cited as a problem as well. In reviewing the revenue compliance of the le roward County Aviation Department, the IG found that ACAD "did not productively use 162.7 acres of vacant land to generate revenue," and could have elm-eased its self-sufficsency by "proactively marketing HCAD vacant land resources." 4. Failure to include reasonable escalation _clauses or renegotiation provisions The IG found that the City of Atlanta, Georgia, had not included reasonable escalation clauses or periodic renegotiation provisions in 26 of the 29 leases analyzed. Without those provisions, the Department of Aviation could not ensure that leased land would continue to produce market-based revenue for the City for 8 80'd Z?0' oN S? C ? 26,90 D3J ?ODb '6? 'SOr OI t/ief10J 30eNON 08 EXHIBIT 0 • • the full term of each lease. The IG found that language permitting, but not requiring, periodic adjustments based on re-appraisals was not an adequate provision for cost escalation. Without adequate escalation, even a rental rate originally set at fair market value will, over time, result in recovery of fewer real dollars over the life of the lease. The IG's audit of the l-lilsborough County Aviation Authority, operator of Tampa International Airport, disclosed that although the authority had obtained appraisal of land leased to car rental companies, it had then capped the lease rate at 8% of the land's value instead of the 10% recommended by its appraisers. This cap was built into preexisting leases. 5. IG AND FAA DISAGREE CONCERNING NECESSITY OF AIRPORTS RECEIVING FAIR MARKET VALUE ON LEASES In general, the primary lesson to be learned by an airport that may be faring an Inspector General investigation is that the airport cannot rest on its prior untroubled relationship with FAA—not only will the IG dig deeper and turn up more than FAA would, the two do not always agree on a proper standard for judging an airport's compliance. Nor does the 1G seem responsive to FAA's determinations of compliance. Orra more constructive note, the IG seems to acknowledge that commercial realities sometimes make it hard for airports to instantly rectify compliance problems that an from existing contracts. Instead, the IG will accept an agreement by the airport that it will modify existing leases to comply with revenue accountability requirements when a change in the leases permits the renegotiation of lease terms, coupled with a commitment to obtain fair rental value for new 'peeps, • DOT IG will push harder than FAA on requiring fair rental values based on a firm percentage of appraised value, without recognizing that negotiation may lead to lower figures. In responding to the IG's audit of New Orleans, FAA did not ag-ree with the IG's estimate of lost rental income because of a policy decision to "leave the negotiation of the rental rates of such property to the business judgment of the sponsor," In the face of that policy, the IG insisted that since FAA had suggested no better estimate of lost rental income, the IG's figure should stand. Further, the IC will not honor an airport's decision to give$1/year lea tc neighborng governmental entities for public purposes; nor is it entirely responsive to the need to take account of other requirements, such as capital investment requirements, placed on the tenant for benefit of the airport or community. DOT IG is pushing for fair market rental standard on aeronautical leases as well, which is in tenon with FAA's requirement of reasonable (cost-based) rates. In its report on the Sroward County Aviation Department, for example, the IG recommended that FAA withhold future discretionary grants until BCAD develops internal con~zois "to obtain fair market rent from both aviation and non- aviation tenants." FAA declined, stating that it would give CAD 6 months to implement a mechanism for obtaining fair market rents from non-aviation tenants, and noting that there is no specific regulation requiring an airport sponsor to obtain fair rental value from aviation tenants. The IG responded that 9 60'd 'TO' oN ;1 : p 1 =1i �i`� :�?Q 1 Obb-Z 5Z-SO'�' l I J„�1Nf10J 30�JNOW 09 EXHIBIT 0 (W)e cannot agree that aviation leases should be at rates less than fair rental value. Although the term fair rental value is not used for aviation tenants in FAA regulations, Federal law clearly requires airports to be as self-sustaining as possible in order to receive Federal financial assistance. In our opinion, charging less than fair rental value on any lease reduces funds reasonably attainable by the sponsor and therefore, such airport sponsor is not as self- sustaining as possible. The IG went on to state the linkage it sees between the self-sufficiency issue raised by below-market lease rates and the issue of revenue diversion: At the very least, a sponsor's diversion of airport resources to subsidize other public or private purposes in violation of that sponsor's grant assurances should cause FAA to provide discretionary Federal grant funds to other more deserving sponsors. This language implies that in some instances below-market leases, primarily a violation of 2210(a)(9), could also violate 2210(a)(12) in cases where airport property was leased at less than fair market value to a sponsoring or neighboring public entity in order to support non-aviation goals. Under this interpretation, an airport that gave up potential lease revenue would be seen as, in effect, using airport revenue to subsidize non-airport purposes. This renders suspect two • types of Contracts airports sometimes enter into: "incentive leases" for large facilites such as airline maintenance bases, where a below-market rate is offered in order to secure well-paying jobs for the neighboring community (a goal not related to aviation); and below-market leases (often for$1/year) to public entities such as the local search and rescue team, police helicopter hangar, sponsor- owned tennis courts or golf courses, and the like. • Elsewhere, in its audit report on the Memphis-Shelby County Airport Authority, IG stated that Recognising the FAA does not specifically require sponsors to receive fair rental value for property lea"d for aviation related use, we considered market based rent to be reasonable evidence of compliance with the self-sustaining requirement unless the sponsor justified leasing property for significantly leas than market based rent. Even where the airport has not accepted,federal grants, and thus the prohibition on taking airport revenue downtown does not apply, the IG will still oppose both below-market leases of airport land to subsidize the sponsor and/or direct transfers or retention of airport revenues. In Pompano Beach, Florida, which is not subject to grant assurance requirements, the IG suggested that the airport be required to forgo all federal subsidies (such as funding for air traffic control) before taking money downtown. The FAA, however, did not agree. These audits, which focused in the first instance on individual airports' revenue compliance, have as their larger purpose an overall a -sassment of FAA's success in enforcing compliance with federal grant requirements. Given the de-ficiencies found, it Ls likely that the DOT IG may push FAA to re-evaluate its 10 0? 'd LTO' eN 9T : b? ^5,90 J30 TObb-Z.6Z-S02:UI ,AAINf10J 30N0N 010 EXHIBIT 0 • policy of relying on self-assessments, single audit results, and third party complaints. However, given FAA's resource constraints and primary obligation to oversee safe operation of the national aviation system, any basic change in approach is likely to face resistance from FAA. 6, PENALTIES FOR VIOLATIONS OF CURRENT LAW While FAA appears less disposed than the IG to require airport sponsors to recover funds improperly paid to other government entities, there is a trend toward requiring the sponsors to obtain reimbursement to replenish airport revenues, Recovery of diverted funds has been recommended in the Palm Springs (CA), Miami-Dade County (FL), El Paso (TX), Ft. Lauderdale (FL), St. Louis (MO), and State of Hawaii airport audits. Where an airport is not an ALP grantee, the.IG has urged (Pompano Beach (FL)) that FAA's air traffic control funds be stopped at the airport. FAA has authority to find, after notice and hearing, that an airport Is in non-compliance with its grant agreements and is ineligible to receive future ALP grants, FAA, however, takes extraordinary efforts to talk an. _, airport sponsor into compliance with all Sponsors Assurances so Federal funds will not be lost, 7, INCREASING LEGISLATIVE PRESSURES AGAINST AIRPORT REVENUE DIVERSION a. "National Airline Commission" Even before the Committees of the 103rd Congress began legislating against "airport revenue diversion," the final report of the National Commission to Ensure a Strong Competitive Airline Industry urged rigorous enforcement of current AIP grant assurance language against such diversion,' b. House DOT Appropriations S_ukngttunitteg Rep, Bob Carr (D-MI), the new Chairman of the House DOT Appropriations Subcommittee, has focused attention on the issue by requesting the Office of the DOT Inspector General to expand the audits it had been undertaking of airport sponsors (see 3. Audit Standards as Applied by➢OT's Inspector General, above) and by proposing legislation to increase the penalties for diverting airport revenue "downtown." '"Some municipalities, most notably Los Angeles, have proposed diversion of funds from their self-supporting commercial airports to pay for general municipal functions unrelated to airport operations. Federal law currently prohibits such diversion at any airport that has received an Airport Improvement Program (ALP) grant, Lf Los Angeles is directly or indirectly successful In its efforts to divert funds, the precedent may have a devastating impact on commerrmal aviation in the United States. We recommend; Rigorous enforcement of existing ALP grant assurance language barring diversion of airport revenues to non-airport purposes." Report to the President and Congress (August 1993), at page 17, 11 It 'd Z10' °N ZT : bT 26, 90 J3r1 TODb-Z6 -SO2:DI Al,1Nf10J 3021N01,1 011 EXHIBIT 0 The Subcommittee's Report accompanying H.R. 2750, FY'94 DOT Appropriations, streseed that "(title Committee is extremely concerned over reports that some airports are diverting revenues to subsidize general state and municipal expenses," To strengthen enforcement powers under Federal law, the House has pigged, on the Subcommittees recommendation, language to assure Li: section 333 of H.R. 2750 that "In-jone of the funds provided by this Act shall be mane available to any State, municipality or subdivision thereof that diverts revenue generated by a public airport in violation of the provisions of the Airport and Airway improvement Act of 1982, as amended." While an FAA determinatior that an airport sponsor continued to violate Assurance 12 could result in the loss of future ALP eligibility, the Carr provision would subject that governmental sponsor to the loss of all Federal transportation funds (e.g., highway, mass t-ransit, airport grants) for such violations appropriated for next year. The Senate Appropriations Committee did not include any parallel language in its version of H.R. 2750, as reported on September 29, so the Carr language will be resolved in the House-Senate Conference on the FY'94 DOT funding bill.. c. House Public Works and Transportation Committee The House Public Works and Transportation Committee recently reported H.R. 2739, the Aviation Infrastructure Investment Act, to the full Ho>>ge of Representatives for a three-year reauthorization of the Airport Improvement Program (ALP). That legislation includes two additional provisions that would apply to sponsors who legally divert revenue under the 1982 and 1987 "grandfather" clanger. Fat., airport sponsors must file annual reports to FAA on payments that are made to other units of governments and on services provided to other units of government. This reporting requirement is to provide FAA with a data base to determine which airports are diverting revenue legally under the 1982 and 1987 "grandfather" clauses and how much revenue is involved. Secondly, the bill provides that in deriding whether to award AIP discretionary funds, the DOT Secretary shall consider, as a factor militating Ogainst a oranI, the fact that an airport is using revenues generated by the airport or by irrai taxes on aviation fuel for purposes other than the capital or operating costs of the airport or the local airport system. This does not make use of the "grandfather" clauses illegal: "[w j hat the provision does mean is that when there are limited amounts of ALP discretionary funds, .. . consideration will be given to the fact that an airport has chosen to take advantage of a grandfather exemption and spend airport money off the airport.' 'The new provision is not an absolute ban against a grant to an airport that is diverting revenue legally. "Under the bill, revenue diversion would be only one factor to be considered. LE there are others factors indicating that an airport's proposed project is particularly worthwhile, these positive factors could be sufficient to overcome a negative factor of lawful revenue diversion." Committee Report at pages 17-18. 12 ZT 'd Zl0 °N 8T : VT E��,90 J30 TOVV- i;Z-SO£:uI I11Nf10J 30bN0N 012 • • EXHIBIT 0 • Senator Wendell Ford (D-KY), Chairman of the Senate Aviation Subcommittee, recently introduced a one-year AlP reauthorization bill (S. 1491) but did not nnc.lude any provisions affecting legal or illegal ait-por. revenue diversion. Given the. mood of official Washington, D.C., however, sueh provisions could be added in Committee mark-up or on the Senate floor later. Uui month. 8, ADVICE TO AIRPORT GOVERNING BODIES TO MAINTAIN AI:P COMPLIANCE Airport Directors who feel pressures from "downtown" for transferring airport revenue for gene.ral municipal purposes or for charging less than :air market value for use of airport assets should provide the following advice, based on the IG audits and Congress' increasing sensitivity to this issue: a. Any efforts by "downtown" diverting airport revenue are illegal under Sponsor Assurance 12 unless specific actions, specified in the statute, had been taken before 1982 or 1987. These narrow excepttions were "gtandfathered" but no new actions will br. protected. Even "grandfathered" provisions could endanger future AlP discretionary funds, under the pending House kiP reauthorization bill (H.R, 2739). b. If Congress enacts the "di riosure" provision in H.R. 2739, payments of airport revenue to other governmental units will become public.zed, and IG audits may follow. C. The IG will audit to make sure that payments of airport revenue to ether units of governments are for services or goods of comparable value. The best way to protect against an IG (or any) audit is to develop and implement an "Indirect cost allocation plan." This would • demonstrate to all that payment levels are appropriate and that no airport re•'enues are being diverted. • d, The IG could conclude that airport revenue must be recovered from the public agency to which it has been diverted for non-airport purposes. Under one version of the FY'94 DOT Appropriations Sill, a parent government that diverts airport revenue could 1:se eligibility for all Federal transportation aid, not Just AIP funds. e. As to compliance with Assurance 9, the IG believes airport sponsors must attempt to obtain fair market value for any airport land they lease. This requires apprsiRais of land and leases with escalation clauses. (FAA's standard is lower.) f. Because Congress is attempting to reduce pressure from airport sponsors for higher AlP grant levels from the Aviation Trust Fund, pressures to panelize publicly--owned airports for airport revenue diversion will likely continue and intensify, 13 ?T0. 0N r.T : PT _k• 9ii _111 T0PD-Z17Z-S02:ai 1,l1Nii0D 3n:Hfj: 013 • • EXHIBIT P BOARD OF COUNTY COMMISSIONERS MAYOR,Jack London,District 2 GUN TY o�M 0 N R 0 E ��' `:T Mayor Pro Tear,A Earl trio I District 4 •�' " Wilhelmina Harvey,District 1 v , Shirley Freeman,District 3 KEY WEST FLORIDA 33040 �Z... �!�!-�•', (305)294.46.41 P k'0�1Lf Mary Kay Reich,District 5 A. R. Skelly ..� Director of Airports Key West International Airport 3491 South Roosevelt Boulevard y lief/ Key West, Florida 33040 SEPI7103 MEMORANDUM • TO: County Attorne FROM: Art Skelly SUBJ: East Martello Tower • DATE: September 16, 1993 Enclosed is a part of the recent airport audit which questions the status of the East Martello Tower as a museum on airport property on a non-paying basis. Would you please determine if the Fort is or is not obliged to pay fair market value for the property they occupy? I will be happy to provide you with any records or documents I have to assist you in this determination. Thank you. cc: Peter Horton • EC011 P1