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
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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.
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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