HomeMy WebLinkAbout1993-11-22 94-29 ORDERCOUNCIL ACTION
Item No. 94-29
Date November 22, 1993
Item/Subject: Authorizing Execution of PAA easement Agreement --
Utilities and Access Road, Bangor International Airport
Responsible Department: Legal
The FAA has requested a utilities easement to install a power line
adjacent to the existing radar access road at the Airport. The
line will begin at an existing Air Force power line on the City's
property and run approximately 600 feet to the Govermnent's ASR
Facility. The City Solicitor has been working with Leslie Haight,
Realty Contracting Officer for the FAA, on the contents of the
agreement. Following revisions of the agreement's language
regarding environmental liability, the revised easement agreement
is in a form acceptable to the Legal Department. This item has not
been to the Airport Committee, and may be referred. However, it is
of a routine nature and if the Council wishes to approve it at
tonight's meeting without referring it to the Airport Committee
they may do so.
trKA
Department Head
w:.
a/City .r. sr L,
Associated Informationt Ox4er, Easement Agreement
Budget Approval:
Finance Director
Legal Approval:
k �1 A
City Solicitor
Introduced For
Passage
First Reading
Referral Page 1 of 14
94-29
Anipred to Councilor Shubert November 22, 1993
CITY OF BANGOR
(TITLE) 0099 Authorising Execution of £ deral Aviation
Administration Easement Agreement -- Utilities and Access Road, BIA
By aw City CwsuN of W Cue ofBanyor:
ORDERED,
THAT
Edward A. Barrett, City Manager, is hereby
authorized to execute Lease No. DTFA12-93-A-R3027 with the U.S.
Department of Transportation, Federal Aviation Administration, New
England Region. This agreement would allow the U.S. Govermaent to
use the City's radar access road to install utility poles in
connection with their ASR Facility. A copy of said Easement
Agreement is on file in the office of the City Clerk.
In City Council November 22.1993
Passed
Ike ( /
City Clerk
94-29
0ROER
Title,
AucM1origing,Exef44149.9{,R9d9W1.Aviation
Administration basement Agreement - Utilities
and Access Road, BIA
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Councilnan
96-29
EXHIBIT "A"
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i New power li cable
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Utilities Easement
t€ Existing Cedar access toad
Eke utility poles
94-29
DEPARTMENT OF TRANSPORTATION
FEDERALAVLITIONADMROSTRATIO!
NEWENGLANDREGION
12 NEW ENGLAND EXECIrI1VE PARK
DUW.RiGTON,MA 01803
LEASE NO:
BTFAI2-9}A-R:m2]
FAMM:
BANGORASRRTN.Ii16S,ACCe.SSR0AO
& RESTRICTIVE EASEMENTS
LOCATION:
BANGORINTEENATIONALA0O•ORT,ME
TBE CITI" OF BANGOR
AND
THOS LEA BE trade and entered into this day of in the
year one thousand rune hundred and ninety tare by and between THE CITY OF
BANGOR whose address is City Had, Bangor, ME 04401 for itself and its heirs,
executors, administrators successors and assigns, hereinafter called the The City and the
United States of America, hereinafter called the Government,
WITNESSETH
WHEREAS The Crovemment has a need form underground power line easement,
airport access right-of-way easement, and restrictive easemem as described in Exhibit A,
allached hereto and made a part hereof,
NOW. THEREFORE: The parties hereto for the consideration hereinafter mentioned,
covenant and agree as follows:
1. Por the tam beginning November 15,1993, and ending September 30,1994, the
City hereby agrees as follows:
a. Restrictive Easement Against Construction: The City shall not concoct nor allow
W be constructed any stmcmre in the area contained within a circle whose center is at the
ASR radar anrerma tower with Maine State Coordinates N 354, 800, E 411, 895, and
whose radius is 1,500 feet; without the express permission ofthe Croverruaem.
b. Utilities Easement The Cityg Utothe OovemmemtherigMtoinsta0apower
line cable within 50 feet of the centerline ofthe existing radar saes& road. The line will
begin at an existing United States Air Force's power line on the CitVs property and ern
approximately 600 feet to the Government's ASR facility ss shown on a sketch, which is
attached hereto and made a part hereof as Exhibit "A".
94-29
c. Utility Pales: In conjunction with the installation of the power line cable, the
Government shall have the right to insmll 3 new utility poles on the City's property, as
depicted on Exhibit "A".
d. Access Road Right -of -Way Easement: The Government shall have the right to use
the City's radar access road for ingeas and egress to and from the Government's ASR
facility.
2. This Agreement may, atthe option ofthe Government, be renewed from year to year
mad otherwise upon the same tams and conditions herein specified. The Government's
option shall be deemed exercised and the Agreement renewed each year for one (I) year
unless the Government gives the City thirty (30) days written notice that it will not
exercise its option before this Agreement or any renewal thereof expires; PROVIDED,
that no renewal thereof shall extend the Government's period of occupancy of the
easement premises beyond the 30th day of September 2008.
3. For and consideration of the benefit to the Bangor International Airport and m the
general public using same, the City grants to the Government all rights, terms and
conditions stated herein at no cost.
4. The Government may terminate this Agreement, in whole or in part, at any time by
giving at lease 30 days notice in writing to the City, and no rental shall accrue after the
effective date oftermination Said notice shall be sent by certified or registered mail.
5. The Government shall suffender possession of the premises upon the date of expiration
or termination oftlds Agreement Ifthe City by written notice at least 30 days before the
date of expiration or termination requests restoration of the premises, the Government at
its option shall within ninety (90) days after such expiration or termination, or within such
additional time as may be mutually agreed upon, either (I) restore the premises to as good
a condition as that existing at the time of the Government's initial entry upon the premises
under this Agreement or any preceding Agreement (changes to the premises in accordance
with paragraph 1(a), 1(b) and 1(c) above, ordinary weer and tem, damage by nature
elements and by circumstances over which the Government has no control, excepted) or
(2) make an equitable adjustment in the agreement amount for the cost of such restoration
of the premises or the diminution of the value of the premises ifumeetored, whichever is
less.
6. The City hereby warrants that it has acquired and possesses an adequate real estate
right in the property described herein and that it is authorized to grant to the Government
the rights and interests en font herein.
Agreement No. DTFAl2-93-A-123029 -Page 2
94-29
0. Rights-of-way herein granted shall be assured to the Government's duty authorized _
agents, representatives, contractors and employees.
S. The Federal Aviation Administration (FAA) agrees to remediate, at its sole cost, all
hazardous substance contamination on the premises covered by this Agreement that is
found to buys occurred as a direct result of the installation, operation, and/or maintenance
ofthepowerconduits. The City agrees to remediate any and all other hazardous
substance contamination found on the premises covered by this Agreement. The City also
'agrees to save and hold the FAA haradess for any and all cons, liabilities and/or claims by
third parties that arise out of hazardous contamination found on the premises covered by
this Agreement not directly attributable to the installation, operation and/or maintenance
of the power conduits.
Nothing in this Agreement shall be deemed to relieve the Government many of its
agencies, "eluding the FAA, including the Department of Defense, of my, summery or.
other liability or responsibility with respect to hazardous substance contamination arising
out of use or occupanry of the subject premises by the Government or any of its agencies,
exduding the FAA, prior to Apol28, 1969. Notldng in this Agreement shall be deemed
to constitute at acceptance of Lability or responsibility with respect to such contamination
on the pan of the City. Nothing in this Agreement shall be deemed to constitute a waiver
in whole or pan of any claims or rights of the City with respect to such contamination
order the Defense Environmental Restoration Program or other provision of Federal or
Some law.
9. If the City sells or mherwise conveys to another party any interest in the land or any
portion of the land which is affected by this Agreement (including the site, rights-of-way
thereto and any areas contained in this Agreement), it should immediately advise the
Government of the date of the transfer and of the address of the new owner or of the new
owner's representative. The Government's rights hereunder shall not be affected by any
such sale or conveyance.
10. This Agreement incorporates the following clauses which are hereby attached and
made a pact of
a. Contract Disputes Act 1978 (Public Law 95-563)
b. Anti -Kickback Procedures
cO6cials Not to Benefit
d. Covenam Againat Contingent Fees
e. Gratuities
11, This Agreement supersedes Lease No. DOT-FA76NE-0569 in its entirety.
Agreement No. DTFA12-93-A-8302] - Page 3
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12. A0 notices sent to the parties under this Agreement shall be addressed aswritten
below. Written notices will be submitted m the other party when a change in that shown
occurs
TO TRE CITY TO THE GOVERNMENT
The City of Bangor
Department of Transportation
City Hall
Federal Aviation Administration
Bangor, ME 04401
England Region, ANE -56
_New
12 New England Executive Park
Burlington, MA 01303 _
IN WITNESS WHEREOF, the parties hereto have hereunto subscribed their names as
of the date above written.
THE CITYOFBANGOR UNITED STATES OF AMERICA
Gall F. Gray
(State, County, Murdcipality or cher Public Authority)
named in the foregoing agreement; that
No. DTFA12-93-A-RNH7 on behalf of was then
of mid that said agreement was duly
signed for and in behalf of said
authority of its governing body, and is witliln the scope of its powers.
(Signature) (Corporate Seal)
Agreement NO.DTPA12-93-A-R3029-Page4
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GRATUITIES
(a) The right of the Lessor to proceed may be terminated by written notice if, after notice
and hearing, the agency head or a designee determines that the Lesson, its agency head, or
another representative.
(1) Offered or gave a gratuity (e.g, an entertabunent or gift) man officer,
official, or employee of the Government; and
(2) Intended, by the gratuity, to obtain a lease or favorable treatment under
lease
(b) The facto supporting this determination may be reviewed by any court having
lawfuljurisdiadon.
(c) If this lease is terminated under paragraph (a) above, the Government is
entity --
(1) To pursue the same remedies as in a breach of the lease; and
(2) In addition to any other damages provided by law, to exemplary damages of
not less than 3 nor more than 10 times the cost incurred by the Lessor in giving gratuities
to the person concerned, as determined by the agency head or a designee. (This
subparagraph (c) (2) is applicable only if this lease uses money appropriated to the
Department of Defense.)
(d) The rights and remedies of the (Iovemment provided in this clause shall not be
exclusive and are in addition to any other rights and remedies provided by law or under
this lease. (52.203-3) (APR 1984)
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DISP=S
(a) This lease is subject to the Contract Disputes Act of 1979, as amended (41
U.S.C. 601-613).
(b) Except as provided in the Act, all disputes arising under or relating to this
lease shall be resolved in accordance with this clause.
(c) "Claim", as used in this clause, means a written demand or written assertion by
one of the contracting parties seekin& as a matter of right, the payment of money in a sum
cer ai , adjustment or interpretation of lease terms, or other relief arising under or relating
to this lease. A claim arising under a lease, unlike a claim relating to that contract, is a
claim that can be resolved under a contract clause that provides for the relief sought by the
claimant However, a written demand or written assertion by the Contractor seeking the
payment of money exceeding $50,000 is not a claim under the Ad until certified as
required by subparagraph (d)(2) below. A voucher, invoicer or other routine request for
payment that is not in dispute when submitted is not a claim under the Act. The
submission may be converted to a claim under the Act, by complying with the submission
and corti6cation requirements of this clause, if it is disputed either as to liability or amount
or is not acted upon in a reasonable time.
(d)(1) A claim by the Contractor shall be made in writing and submitted to the
Contracting Officer for a written decision. A claim by the Government against the
Contractor shall be subject to a written decision by the Contracting Meer.
(2) For Contractor claims exceeding $50,000 the Contractor shall submit with
the claim a certification that -
(i) The claim is made in good faith;
hi) Supporting data are accurate and complete to the best of the
Contractor's knowledge and belief, and
(iii) The amount equested accurately reflects the contract adjustmentfor
which the Contractor believes the Govenunent is liable.
(3) (1) Ifthe Contractor is an individual, the certification shall be esecurted by
that individual.
(it) If the Contractor is not an individual, the certification shall be executed
by -
(A) A senior company official in charge at the Contractor's plant or
location involved; or
(B) An officer or general partner of the Contractor having overall
responsibility for the conduct of the Contrsctots affairs.
(e) For Contractor claims of $50,000 or less, the Contracting Officer must, if
requested in writing by the Contactor, render a decision within 60 days of the request.
For Contractor -certified claims over $50,000, the Contracting Office must, within 60
days, decide the claim or notify the Contractor of the date by which the decision will be
made
(f) The Contracting Officers decision shall be final unless the Contractor appeals
or files a suit as provided in the Aa.
(g) At the time a claim by the Connector is submittal to the Contracting Officer
or a claim by the Government is presented to the Contractor, the parties, by mutual
94-29
consent, may agree to usealternative means of dispute resolution. When using alternate
dispute resolution procedures, any claim, regardless of amount, shall be accompanied by
the certification described in paragraph (d)(2) of this clause, and executed in accordance
with paragraph (d)(3) of this clause.
(h) The Government shall pay interest on the amount found due and unpaid from
(1) the date the Contracting Officer receives the claim (properly certified if required), or
(2) the date payment otherwise would be due, if that data is later, until the date of
payment. Simple interest cn claims shall be paid at the rate, fixed by the Secretary of the
Treasury as provided in the Act, which is applicable to the period during which the
Contracting Officer receives the claim and then at the rate applicable for each six-month
period as fixed by the Treasury Secretary during the pendency of the claim.
(i) The Contractor shall proceed diligently with performance ofthis contract,
pending final resolution of any request for relief, claim, appeal, or action arising under the
contract and comply with any decision ofthe Contracting Officer.
52.233-1 (DEC 91)
COVENANT AGAINST CONTINGENT FEES
(a) The Ieswrwsmmnts that no person or agency has been employed or retained
to solicit or obtain this lease upon an agreement or understanding for a contingent fes,
except a bore fide employee or agency. For breach or violation of this wantonly, the
Govsmment shall have the right to annul this lease without liability or, in its discretion, to
deduct from the lease price or consideration, or otherwise recover, the full amount of the
contingent fee.
(b) "Bore fide agency', as used in this clause, means an established commercial or
selling agency (including licenses real estate agents or brokers), maintained by a lessor for
the purpose of securing business, that neither wens nor proposes to exert improper
influence to solicit or obtain Govemment leases nor holds itself out as being able to obtain
any Government lease or leases through improper irdluence. _
"Bone fide employee", as used in this clause, means a person, employed by a lessor
and subject to lessor's supervision and control as to time, place, and manner of
performance, who neither exerts nor proposes to exert improper influence to solicit or
obtain Government leases nor holds out as being able to obtain any Govemment lease or
leases through improper influence.
"Contingent fee", as used in this clause, means any commission, percentage,
brokerage, or other fee that is contingent upon the success that a person or concern has in
severing a Government lease.
"Improper ivfluencd', as used in thi; clause means any influence that induces or
tends to induce a Government employee or officer to give consideration or to act
regarding a Government lease on any basis other than the merits ofthe matter. (52.203-5)
(FEB 1990)
ANTI -KICKBACK PROCEDURES
(a) Definitions.
96-29
"Mckback", as used in this clause, means my money, fors, commission, credit, gA
gratuity, thing of value, or compensation of any kind which is provided, directly or
indirectly, to any prime Lessor, prime lessor employee, sublessor{ or sublessor employee
for the purpose of improperly obtaining or rewarding favorable tmetment in connection
with a prime lease or in connection with a sublease relating to a prime lease.
"Person," as used in this clause, means a corporation, partnership, business
association of any kind, trust, joint stock company, or individual.
"Prime lease," as used in this clause, means a lease or contractual action entered
into by a prime Lessor
"Prime Lessar", as used in this clause, means a person who has entered into a
prime contract with the United States.
"Prime Lessor employee", as used in this clause, means any officer, partner,
employee, or agent of prime Lessor.
"Sublease," as used in Ws clause, means a lease or contractual action entered into
by a prime Lessor or sublessor for the purpose of obtaining supplies, materials, equipment,
or services of any kind under a prime lease.
"Sublessor," as used in this clause (1) mearvs any person, other than the prime
lessor, who offers to famish or furnishes any, supplies, materials, equipment, or services of
any kind under the prime lease or a sublease entered into in connection with such prime
lessor, and (2) includes any person who offers to furnish or furnishes general supplies to
the prime lessor or a higher for sublessor.
"Sublessor employee," as used in this clause, means any officer, partner, employee,
or agent of a sublessor.
(b) The Anti -Kickback Act of 1986 (41 U.S.C. 51-58) (the Act), prohibits any
person 6om--
(1) Providing or attempting to provide or offering to provide any kickback;
(2) Soliciting, accepting, or attempting to accept any kickback; or
(3) Including, directly or indirectly, the amount of any kickback in the lease price
charged by a prime lessor to the United States or in the lease price charged by a sublessor
to a prime lessor or a higher tier sublessor.
(c) (1) the Lessor shall have in place and follow reasonable procedures
designed to prevent and deet[ possible violations described in paragraph (b) of this clause
in its own operations and direct business relationships.
(2) when the lessor has reasonable grounds to believe that a violation
described in paragraph (b) of this clause may have occurred, the Lessor shall promptly
reportin writing the possible violation. Such reports shall be made to the inspector
general of the contracting agency, the head of the contmoling agency if the agency does
not have an inspector general, or the Department of Justice.
(3) The lesser shall cooperate fully with any federal agency investigating a
possible violation described in paragraph (b) of this clause.
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(4) The Contracting Officer may
(i) Offset the emoum of the kickback against any monies owed by the United
States under this lease and/or
(u) direct that the Prime Lessor withhold fiom sums owed the sublessor, under the
prime lease the mount ofthe kickback The Contracting Olficar may order that moNes
withheld under subdivision (o) (4) (u) ofthis clause be paid over to the Government unless
the Government has already offset those mcNes under subdivision (c)(4)(i) of this clause.
In the either wse, the Prime Lessor shall notify the Contracting Officer when modes are
withheld.
(5) The Lessor agrees to incorporate the substance of this clause, including this
subparagraph (c) (5) but ezoepting subparagraph (c)(1), in all subleases under this lease.
(52,203-7) (OCT 1988)
OFFICIALS NOT TO BENEFIT
No member of or delegate to Congress, or resident commissioner, shall be
admitted to any share or pert of due lease, or to any benefit arising from it. However, this
clause does not apply to this lease to the extent that this lease is made with a corporation
for the corporation's general benefit. (52.203-I) (APR 1984)