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HomeMy WebLinkAbout1994-10-12 94-448 ORDERCOUNCIL ACTION Item No. 94-448 Date October 12 1994 item/Subject: Authorizing execution Of ,Joint Use Agreement with Maine Air National Guard Responsible Department: Legal The attached Order would authorize the City Manager to execute and deliver an Airport Joint Use Agreement with the Maine Air National Guard. The new joint use agreement would replace our 1984 joint use agreement, which formally expired on February 5, 1994, but which has been continued in force pending the current negotiations. As stated in the Airport Director's memorandum to the City Council, copy attached, the proposed joint use agreement basically extends our existing arrangement with the Air National Guard for a fifteen Year term. Under both the existing and proposed agreements, the Air National Guard provides crash response and fire protection services, and furnishes and maintains airport snow removal equipment, all in lieu of landing fees and cost reimbursements that would otherwise be payable by the Air National Guard to the Airport under FAA regulations for the Guard's military use of BIA. Other details of the proposed agreement are set out in the Airport Director's memorandum. Or _ _ , /I cep/alrtm ant Heal§✓ Manager's Commmentai-7 -t4// ✓tQ-Gb�'nv- 4 I1U'JI U . -.-� N/% City Manager Associated Information: Order, Agreement, Memorandum Finance Director Legal Approval: Your approval is recommended. �� e"�y�d Uwe City Sol'c'tor Int YOflac�'ed POY - Passage FirstReading Referral Page 1 of 22 94-448 Amigned to Councflor Shubert October 12, 1994 CITY OF BANGOR (TITLE.) 4tlrbrrT .............. Authorizing Etion of Jit Use Agreement with Maine Air National Guard By Ge Gas 0zamY W W GUY of Masser: ORDERED. THAT the City Manager is hereby authorized, on behalf of the City of Bangor, toexecute and deliver an Airport Joint Use Agreement with the Maine Air National Guard, for the .joint use and provision of certain facilities and services at Bangor Inter- national.Airportn a copy of said Joint Use Agreement being attached hereto and incorporated herein by. reference. In City Council October 12, 1999 Panama ty Cl .k� i z= 99-998 ORDER Title, Aotbonizin9 Execution of Joint Ike ...................................... Agreement with Mine Air National Goard aau�ea a �e,�eilman 94-448 MEMORANDUM TO: Markers of the City Council FROM: Bob Ziegelaar, Airport Director REFERENCE: 'Joint -Use Agreement DATE: September 22, 1994 After extensive discussions with the Maine Air National Guard which were sometimes also attended by the City Manager and/or the City Solicitor, I have reached tentative agreement with the Guard regarding the renewal of the Joint -Use Agreement relating to the facilities at BIA. The negotiation process was lenghty, inasmuch as various draft agreements needed to be reviewed by various AirForce depart- ments, as well as the City Solicitor on various occasions. what has finally emerged is an agreement that is, for all practical purposes, the same as r previous agreement. The current MCANG leadership along with Brig. Gen. Durgin were instrumental in facilitating the overall process and in maintaining the same basic format that had existed previously. A key feature of the agreement is that it safeguards our current relationship for the next fifteen years. Initially a five-year term had been offered but I believed that fifteen years was the minimum term acceptable to the airport, because of the long-term approach required for many of the airport's capital improvement projects. In a general sense the agreement is an open-ended one. The military has cancellation options but only to the extent that it would have to close -down its operations, virtually in their entirety. Given the ongoing operations, as well as the current investments in the expansion and upgrading of the military facilities it would appear to be very unlikely that there would be any drastic changes to the McANG's mission at Bangor. In fact, this mission was recently specifically expanded. Ultimate- ly any substantial change in military operations would become a issue that would bring about the involvement of our congressional 94-448 delegation, as the Air Farce/ANG cannot enter into any type of agreement that would eliminate future downsizing options. Other key components of the Joint -Use Agreement are the continuation of the crash/Fire Rescue services provided by the ANG as well as the continued provision of equipment required for airport snow -removal operations. In addition there is the less clearly defined issue of the ANG's participation in funding for specific joint -use projects. That has always been amatter of local negotiation and that will not change. Based on my most recent experience with the MCANG leadership, I fully expect the cooperation we have experienced in that area to continue. In summary, I believe nettheJoint-Use Agreement placed before you is a good agreement inasmuch as it will preserve the status quo and does not decrease the level of military assistance and cooperation the airport has received v ved over the past years. It i a mutually beneficial agreement as theairport�s efforts i air- field maintenance and repair clearly also benefit the MCANG and the Air Force. As such, it will serve as a useful platform for cooperation for the next fifteen years, and one that I expect will be added to as the years go by. For that reason, I recommend that you accept and endorse the Joint Use Agreement between the city of Bangor and the Maine Air National Guard. BZ:cs 94-448 DATED: 13v�J y AIRPORT JOINT USE AGREEINENT BANGOR INTERNATIONAL AIRPORT UNITED STATES OF AMERICA AIRPORT JOINT USE AGREEMENT BANGOR INTERNATIONAL AIRPORT UNITED STATES OF AMERICA RECITALS AGREEMENT 94-448 Page: 1. Definifions 2 2. Joint Use 3 3. City Responsibilities 3 4. Government Responsibilities 5 5. Payments 6 6. Airfield Management 6 7. Government Reserved Rights 7 8. Fire Protection and Crash Rescue 7 9. Records and Hooks of Account 9 10. Term 10 11. Termination 10 12. General Provisions 12 12.a. Compliance with Law 12 12.b. Assignment 12 12.c. Liability 12 12.d. Third Party Benefit 12 12.e. Endre Agreement 12 12.f. Modification 13 12.g. Waiver 13 12.h. Paragraph Headings 13 13. Major Repairs and New Construction 13 14. Notices 14 94-448 AUU)ORT JOINT USE AGREEMENT THIS AGREEMENT made and entered turn this day of _1994, by and between the CITY OF BANGOR, MAINE, acting by and through its City Manager ('City"); and the UNTIED STATES OFAMERICA, acting by and through the Chief, National Guard Bureau, and the STATE of Maine, acting by and through its Adjutant General (collectively, -Government,). RECITALS: A. The City owns and operates Bangor International Airport ('Airport"), located in the City of Bangor, State of Maine. B. The Airport and Airways Improvement Act of 1982 (Public law 97 248 September 3, 1982, 49 U.S.C. App. 2201 et. seq.), as amended, provides that all of the facilities of the Airport developM with Federal financial assistance and all those facilities usable for landing and takeoff of aircraft will be available to the United States for use by Govemment aircraft in common with other aircraft at all times without charge unless use by Government aircraft is substantial. If use is substantial, a charge may be made for a reasonable share, proportional to such use, of the cost of operating and maintaining such facilities. C. The Government requires substantial use of the flying facilities at the Airport for the Air National tabard, as well as for other occasional transient government aircraft. 94-448 D. The City is agreeable to such substantial use, in common with other users of the Airport, of the flying facilities by the Government under this Agreement E. no Government and the City desire to provide for the delineation of responsibility for operation and maintenance of the flying facilities jointly used in common with others at the Airport and to establish the Govemment's reasonable share, proportional w such use, of the cost of operating and maintaining such jointly used flying facilities. AGREEhIENT: I. DEFINITIONS. For purposes of this Agrewnent, the jointly used flying facilities of the Airport ("Jointly Used Flying Facilities") are the runways, haxiways, parking aprons and marks, lighting systems, navigational aids, markings and appurtmmnces open to public use and use by the Government, including all improvements and facilities pertaining thereto and situated thereon and all future additions improvements, and facilities thereto a may be added or constructed from time -to -time. Land areas used escluslvely by the Government are not "jointly used flying facilities," nor are the terminal buildings, hangars, non-government Wiling aprons and ramps, or other areas of structures used exclusively by the City or its lessees, permittees, or licensees for civilian or commercial purposes. 4 94-448 2. JOM USE. Subject to the terms and conditions of this Agreement, the Government shall have the use, in common with other users of the Airport, present and prospective, of the Jointly Used Flying Facilities together with all necessary and convenient rights of ingress and egress to and from the Jointly Used FlyingFacilities and the Air National Guard installation and other Government fatif ies located on the Airport. Routes for ingress and egress for the Govemmeins employees, agents, customers and contractors shall not unduly restrict the Government in its operations. 3. CITY RFSPONSIBILMES. ne City will be responsible for the following services and functions; to standards in accordance with Pamgntph 6 below. a. Furnishing all personnel, materials and equipment required in the rendering of the services to be provided under the Agreement. b. Performing any and all maintenance of the Jointly Used Flying Facilities, including but not limited to: (1) Joint sealing, crack repair, surface repairs, airfield marldngs and repair or replacement of damaged sections of airfield pavement; 94-448 (2) Runway, and way, and approach lighting and the regulators and controls therefor; (3) Beacons, Obstruction lights, wind indicators, and other navigational aids; except those navigation aids which are maintained by the Fedemi Aviation Administration (-FAA-); (4) Grass coning and grounds care, drainage, and dust and erosion control of unpaved areas, adjacent b runways and taxiways; the agreement; (5) Sweeping runways and taxiways, subject to Paragraph tic of (6) Controlling insects and pests; (7) Removing snow, its and other hazards from runways and taxiways within a reasonable time after such runways and taxiways have been so encumbered in accordance with the Airport Snow -Ice Control Plan, subject in Paragraph 4c of the Agreement. c. Furnishing utilities necessary in operme the Jointly Used Flying Facilities. d. Removing disabled aircraft as expeditiously as possible; subject to the rules and regulations of the National Transportation Safety Boats (NTSB), in order to minimize the time 94-448 the Jointly Used Flying Facilifies, or any part thereof, would be closed because of such aircraft. 4. GOVERNMENT RFSPONSBUMM. The Goverment will beresponsible for the following: a. Removing disabled goverment aircraft as expeditiously as possible in order to minimize the time the Jointly Used Flying Facilities, or any part thereof, would be dosed because of such aircraft. b. Removing snow and ice from all ramps, aprons, and taxiways used exclusively by government. C. Subject to terms and conditions of a separate agreement or agreements, providing on loan m and maintaining for use by the City in performing the services set forth in subparagraphs 3b(5) and 3b('7) of the Agreement, roads and grounds and snow removal vehicles and equipment sufficient, in the Government's sole discretion, to meet the Government's operational requirements. The Goverment will grant the authorized personnel of the City such access to the Government's exclusive use area as shag be reasonable and necessary m enable the City to carry out its responsibilities under the provisions of subparagraphs 3b(5) and 35(7) of the Agreement. d. Providing aircraft fire fighting and crash rescue services, subject to Paragraph g of this Agreement 94-448 e. Subject in availability of appropriations therefor, repairing, within a reasonable time, damage to the Jointly Used Flying Facilities to the extent that such Manage is caused solely by government aircraft operations and is in excess of the fav wear and tear resulting from the military use contemplated under this agreement. 5. PAYNIEMLS: a. In consideration of and for the faithful performance of this Agreement and subject w the availability ofFedeml appropriations and Paragraph 5b below, the Government shall pay to the City as the Government's proportionate share of the cost of operating and maintaining the Jointly Used Flying Facilities, the nominal amount of ONE DOLLAR ($1.00) per year. 6. AMFIELD MANAGEMENT. a. the City agrees that maintenance of the flying facilities of the Airport shall, at all times, be in accordance 94-448 with Federal Aviation Administration ("PAA") standards for the operation of a commercial airportand operation ofjet aircraft. b. The Government agrees that any markings and equipment installed by it pursuant m Paragraph 7 of the Agreement shallnot be in conflict with FAA standards. 7. GOVERNMENT RESERVED RIGHTS. The Government reserves the right, at its sole cost and expense and subject to Paragraph 611 above, in: a. Provide and maintain in the Jointly Used Flying Facilities afield marlangs required solely for military aircraft operations. b. Install, operate and maintain in the Jointly Used Flying Facilities any and all additional equipment, necessary farlhe safe and efficient operation of military aircraft including but not limited to Attesting Systems and NAVAIDS. 8. FIRE PROTECTION AND CRASH RESCUE. a. The Government maintains a fire fighting and crash resc6e organization in support of military operations at the Airport. Within the limits of the existing capabilities of this organisation, the Government agrees to respond a the City's request to fire and crash rescue emergencies involving civil aircraft, subject in subparagraphs 8b, 8q and Sd below. 94-448 b. The City agrees to release, acquit, and forever discharge the Government, its officers, agents and employees from al] liability arising out of or connected with the use of, or failure to supply in individual cases, government fire fighting and crash rescue equipment or personnel for fire control and crash rescue activities at or in the vicinity of the Airport. The City further agrees re the cement allowed under Maine law to indemnify, defend and hold harmless the Government, its officers, agents and employees against any and all clams, of whatever description, wising out of or connected with such use of, or failure to supply in individual cases, government fire frghdng and crash rescue equipment or personnel, except where such claims arise Out of or result from the gross negligence or willful misconduct of the officers, agents, or employee of the United States. The City agrees to execute and maintain in effect a hold harmless agreement as required by applicable Air Force regulations for all periods during which emergency fire fighting and crash rescue service is provided to civil aircraft by the Government. c. - The City, subject to appropriations of funds by its City Council, will reimburse the Government for expenses incurred by the Governmentfor foe fighting and crash rescue materials expended in connection with providing such service to civil aircraft. 10 94-448 d. The Government's responsibility under this Paragraph S shall continue only an long as a fire fighting and rash rescue organization is authorized for military operations 9 the Airport. The Govemmenl shall have no obligation to maintain any fire fighting and crash rescue equipment or personnel or to conduct any training or inspection for the purposes of this paragraph. It is further understood that the Government's fire fighting and crash rescue equipment shall not be routinely parked on the meld during nonemergency landings of civil aircraft. e. Notwithstanding the foregoing, so long as the Government operates and maintains a fire fighting and crash rescue organization for military operations at the Airport, the Government will, consistent with military operations as determined by the Government, ccoPeram with the federal government agencies having jurisdiction over civil aircraft in the conduct of Periodic inspections of fire fighting and crash rescue response time. 9. RECORDS and BOOKS OF ACCOUNT. The City agrees to keep records and hooks of account, showing the actual cart to it of all items of labor, materials, equipment, supplies, services, and other expenditures made in fulfilling the obligations of this Agreement, and the Comptroller General of the United States or any 94-448 of his car her duly authorized representatives shall, until the aspiration of three (3) years aper final payment, have access at all times to such records and books of account, or to any directly pertinent books, documents, papers, and records of any of the City's contracturs or subcontractors engaged in the performance of and involving transactions related to this Agreement The City further agrees that representatives of the Air Force Audit Agency or any other designated represenmtives of Ne Government shall have the same right of access to such records, books of account, documents and papers as is available to Ne Comptroller General. 10. TERM This Agreement Ma0 be effective for a term of fifteen (15) years beginning October 1, 1994, and ending September 30, 2009. 11. TERMPIATION. a. This Agreement may be terminated by the Government at any time by giving ar _ least thirty (30) days' notice thereof in writing to the City. b. (1) The Government by giving written notice to the City may temtinate the right of the City to proceed under this Agreement if i(Dound, after notice and hearing by the Secretary of the Air Force or his or her duly authorized representative, that gmmities in the form of enterminment, gifts, or otherwise were offered or given by me City, or any 94-448 agent or representafive of the City, to any offices or employee of the Government with a view toward securing Ws Agreement or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such agreement, provided that the existence of the facts upon which the Secretary of the Air Force or his or her duly authorized represenmfive makes such findings shall be an issue and may be reviewed in any competent court. (2) In the event this Agreement is terminated as provided in subparagraph 116(1) above, the Government shall be entitled to pursue the same remedies against the City as it could pursue in the event of a breach of the Agreement by the City, and in addifion to any other damages to which it may be entitled by the law, the Government shall be entitled in exemplary damages in an amount (as determined by the Secretary of the Air Force or his or her duly authorized representative) which shall be not less than three (3) or more than ren (10) times the costs incurred by the City in providing any such gratuifies to any such officer or employee. (3) The rights and remedies of the Government provided in subparagraph I lb(2) above shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. 94-448 12. GENERAL PROVISIONS: a. Compliance with Law. The City shall comply with all Federal, state and local laws, roles and regulations applicable tc the activities conducted under this Agreement. b. Assignment The City shall neither transfer nor assign this Agreement without the written consent of the Government, which shall not be unreasonably withheld. C. Liability. Except as otherwise provided in the Agreement, neither party shall be liable for damages to property or injuries to persons arising from acts of the other in the use of the airport facifities or occurring as a consequence of the performance of responsibilities under this Agreement. d. nird Party Benefit No member or delegate to Congress shall be admitted to any share or part of this Agreement or to any benefit that may arise therefrom, but this Provision shall not be construed to extend in this Agreement if made with a corporation for its general benefit e. Fathe Agreement. It is expressly agreed that this written instrument embodies the entire financial arrangement and agreement of the parties regarding the use of the Jointly Used Flying Facilities by the Government and there are no understandings or agreements, vedrul or otherwise, between the 14 94-448 Parties in regard m it except as expressly set forth herein. Specifically, no landing fees or other fees not provided in this Agreement will be assessed by the City against the Government in the use of the Jointly Used Flying Facilities during the term of this Agreement f. MWific MM This Agreement may only be modified or amended by mutual agreement of the parties in writing and signed by each of the parties hereto. g. Waiver. The failure of either party to insist, in any one or more instances, upon the strict performance of any of the terms, conditions, covenants, or provisions of this Agreement shall not be construed as a waiver or relinquishment of the right to the Moore performance M any such terms, conditions, cavernous, or provisions. No provision of this Agreement shall be dcemed to have been waived by either party unless such waiver be in writing signed by such party. h. Paragraph Headings. The brief headings or Odes preceding each paragraph and subparagraph are merely for purposes of identification, convenience, and ease of reference andwillbe completely disregarded in the construction of this Agreement. 13. MAJOR REPAMS AND NEW CONSTRUCT70N. Major repair projects and/or new construction projects required for the Jointly Used Flying Facilities (collectively, "Joint Use Projects') aro 15 94-448 not included under thus Agreement. Any Government contribution m joint Use Projects shall be the subject of separate negotiations and written agreement between the City and the Government at such fime as the work is required. Any Govemment Participation in the costs of joint Use Projects is subject to the availability of Federal funds for such purpose at the time the work is required. 14. NOTICES. No notice, order, direction, determination, requirement, consent or approval under this Agreement shall be of any effect unless it is N writing and addressed as provided herein. a. Written communications to the City shall be addressed to: City Manager City of Bangor City Hall 73 Harlow Street Bangor, Maine 04401 b. Written communications to the Government shall be in duplicate with copies to the United States of America and the State of Maine addressed respectively, ss follows: To the United States of America: NGB/CE 2500 Army Pentagon Washington, D.C. 20310.2500 94-448 To the State of Maine: The Adjutant General Camp Keyes Augusta, Mame 04333 IN WrINESS WHEREOF, the respective duly authorized representatives of the partes hesem have executed this Agreement on the data set forth opposite their respective signatures. DATED: CITY OF BANGOR, MAINE By: Edward Barrett City Manager DATED: STATE OF MAINE. By: NELSON E. DURGIN, Maj Gm The Adjutant Gmerai APPROVED. AS TO FORM AND LEGAL SUFFICIENCY Peter Golding, Major, MEANG Slaff Judge Advocate 94-448 DATED: UNITED STATES OF AMERICA BY: FOR THE CDIEF NATIONAL GUARD BUREAU