Grant Assurance 5 – Preserving Rights and Powers

Grant Assurance 5 – Preserving Rights and Powers is broken into three areas.

• General Requirements
• Noise Compatibility
• Thru-The-Fence (TTF) Access

General Requirements

The basis of Grant Assurance 5 is to protect the interests of civil aviation and the administration of FAA granted funds. The protection requires the Airport Sponsor to ensure it has the rights and powers to agree to the Grant Assurance requirements. Any and all obligated property cannot be disposed of without written permission of the FAA. Prior to selling or transferring land, the Airport Sponsor should review FAA Order 5190.6 for guidance.

Even though the Grant Assurances apply to federally funded projects, the requirement to obtain FAA permission to sell or transfer airport property applies to all airport property. Always seek legal counsel before selling property or entering into lease agreements. The FAA considers leases over 50 years as disposal of property. ^[1] FAA Order 5190.6. FAA. Retrieved January 21, 20201 https://www.faa.gov/airports/resources/publications/orders/compliance_5190_6/media/5190_6b_chap12.pdf

It will not take or permit any action which would operate to deprive it of any of the rights and powers necessary to perform any or all of the terms, conditions, and assurances in this grant agreement without the written approval of the Secretary, and will act promptly to acquire, extinguish or modify any outstanding rights or claims of right of others which would interfere with such performance by the sponsor. This shall be done in a manner acceptable to the Secretary.^[2] Airport Sponsor Assurances. 2020. FAA. Retrieved January 21, 2020. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip-2020.pdf

Grant Assurance 5 – Section A

Even with FAA approval to sell or transfer property, it could be mandated that the new owner maintain the original use. Follow the FAA’s guidance on all property transfers.

Subject to the FAA Act of 2018, Public Law 115-254, Section 163, it will not sell, lease, encumber, or otherwise transfer or dispose of any part of its title or other interests in the property shown on Exhibit A to this application or, for a noise compatibility program project, that portion of the property upon which Federal funds have been expended, for the duration of the terms, conditions, and assurances in this grant agreement without approval by the Secretary. If the transferee is found by the Secretary to be eligible under Title 49, United States Code, to assume the obligations of this grant agreement and to have the power, authority, and financial resources to carry out all such obligations, the sponsor shall insert in the contract or document transferring or disposing of the sponsor’s interest, and make binding upon the transferee all of the terms, conditions, and assurances contained in this grant agreement.^[3] Airport Sponsor Assurances. 2020. FAA. Retrieved January 21, 2020. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip-2020.pdf

Grant Assurance 5 – Section B

If a private sponsor is seeking the grant, then they must assure the FAA that the airport will be used for public-use throughout the duration of the Grant Assurances. Private sponsors must ensure that the airport will continue for the duration of the Grant Assurance, which is either the useful life or the project or ten years, whichever is greater.

If the sponsor is a private sponsor, it will take steps satisfactory to the Secretary to ensure
that the airport will continue to function as a public-use airport in accordance with these
assurances for the duration of these assurances.^[4] Airport Sponsor Assurances. 2020. FAA. Retrieved January 21, 2020. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip-2020.pdf

Grant Assurance 5- Section E

Third party management companies that manage the airport must ensure that the Airport Sponsor continues to have authority and rights to ensure the airport continues to be operated in a public-use.

If an arrangement is made for management and operation of the airport by any agency or
person other than the sponsor or an employee of the sponsor, the sponsor will reserve
sufficient rights and authority to insure that the airport will be operated and maintained in
accordance Title 49, United States Code, the regulations and the terms, conditions and
assurances in this grant agreement and shall insure that such arrangement also requires
compliance therewith.^[5] Airport Sponsor Assurances. 2020. FAA. Retrieved January 21, 2020. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip-2020.pdf

Grant Assurance 5 – Section F

FAA approval is not required for normal lease agreements, as long as they do not exceed 50 years and meet the obligations for all Grant Assurances.

Noise Compatibility

Noise may be inherent with airports, however great work has been made to improve the effects of noise. When seeking to use federal funds for noise related projects, government units other than the Airport Sponsor may be issued a grant directly. To accept the grant, the other governmental unit must agree to the terms of the grant and comply.

Projects carried out on private property, such as residential soundproofing, require the property owner to sign an agreement and agree to the terms specified. The language of the agreement is flexible, however it must satisfy the requirements of the Grant Assurance and have a method of enforcement is violated. Airport Sponsors that fail to require or enforce the agreement are at risk of a non-compliance enforcement from the FAA.

For all noise compatibility program projects which are to be carried out by another unit of
local government or are on property owned by a unit of local government other than the
sponsor, it will enter into an agreement with that government. Except as otherwise
specified by the Secretary, that agreement shall obligate that government to the same
terms, conditions, and assurances that would be applicable to it if it applied directly to the
FAA for a grant to undertake the noise compatibility program project. That agreement and
changes thereto must be satisfactory to the Secretary. It will take steps to enforce this
agreement against the local government if there is substantial non-compliance with the
terms of the agreement.^[6] Airport Sponsor Assurances. 2020. FAA. Retrieved January 21, 2020. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip-2020.pdf

Grant Assurance 5 – Section C

For noise compatibility program projects to be carried out on privately owned property, it
will enter into an agreement with the owner of that property which includes provisions
specified by the Secretary. It will take steps to enforce this agreement against the property
owner whenever there is substantial non-compliance with the terms of the agreement.^[7] Airport Sponsor Assurances. 2020. FAA. Retrieved January 21, 2020. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip-2020.pdf

Grant Assurance 5 – Section D

Through-The-Fence (TTF) Access

The FAA defines a Through-The-Fence (TTF) agreement as any activity or use of real property of an aeronautical or nonaeronautical nature that is located outside (or off) of airport property but has access to the airport’s runway and/or taxiway system. ^[8] Airport “Through the Fence” operations and Residential Airparks at Publicly Funded Airports. Bill Dunn. Retrieved January 21, 2021. … Continue reading The restrictions on residential TTF access agreements are geared towards commercial service airports. They specifically limit new residential TTF agreements to general aviation airports.

Commercial TTF agreements are not prohibited, however the FAA highly discourages their use. Overall, the requirements are similar to residential TTF agreements. The FAA requires that commercial service airports limit TTF agreements to non-residential. If a TTF agreement is made, it must be written and establish conditions for access. See Grant Assurance 29 – Airport Layout Plan.

Sponsors of commercial service airports will not permit or enter into any arrangement that
results in permission for the owner or tenant of a property used as a residence, or zoned for
residential use, to taxi an aircraft between that property and any location on airport.
Sponsors of general aviation airports entering into any arrangement that results in permission for the owner of residential real property adjacent to or near the airport must comply with the requirements of Sec. 136 of Public Law 112-95 and the sponsor assurances.^[9] Airport Sponsor Assurances. 2020. FAA. Retrieved January 21, 2020. https://www.faa.gov/airports/aip/grant_assurances/media/airport-sponsor-assurances-aip-2020.pdf

Grant Assurance 5 – Section G

Grant Assurance 5 plays into a lot of management within airports. See Airport Lease Agreements.

This is a summary of the Grant Assurance for basic understanding only. This is not legal advice. Seek legal counsel before entering into any agreement with the FAA for a Grant Assurance.