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HomeMy WebLinkAbout1992-04-27 92-232 ORDERCOUNCIL ACTION Item No. 92-232 Date Anril 22, 1992 Item/Subject: Order Authorizing and Directing City Manager to execute Agreement with General Electric Company Regarding the Removal and Replacement Of Underground Fuel Tanks Responsible Department: Community and Economic Development The attached Order authorizes the City manager to sign an agreement with General Electric Company, which seta forth arrangements for replacement of underground fuel tanks at the G.B. facilities at BIA. M described in the attached memo, the City and G.E. would agree that the removal of existing tanks and installation of replacement underground tanks is $300,000. Since G.B. wishes to install a more elaborate above -ground system, the company would be responsible for the additional cost. The draft copy of the proposed agreement is attached. This is being reviewed by the City Solicitor and G.E.'s attorneys. A substitute agreement may be presented at the City Council meeting on Monday evening. Dep ent Bead City Manager / Associated Injormatlon:0 iA�rna 1 Budget Approval: ( 300000 F" ance Director Legal Approval: City Solicitor Passage _First Reading Page 1 of Referral 92-232 AeeiWp h Ccapdh r Sawyer April 27, 1992 CITY OF BANGOR (TITLE.) UCT�PTr, ^° i1z-nreoting city. xaoag r toExecute AEro®ent__ _.. with General Electric Company Regarding the Remmal end Q Rep Lac nt of Underground Euel, Tanks nl BE Bw my CowwE of W CME ofBawpor: ORDERED, TWT WHEREAS, the City of Bangor leases four buildings at Bangor International airport to General Electric Company{ and WHEREAS, it is necessary to remove and replace the five existing underground fuel oil tanks located at the leased buildings; and wHHRHAS, General Electric Company wishes to replace the underground fuel storage system with an above -ground fuel storage system; and WHEREAS, General Electric Company is willing to pay the additional coat of an above -ground system and be responsible for managing the construction project. THERBPORE, BE IT ORDERED THAT the City Manager is hereby authorised and directed to execute an agreement with General Electric Company which establishes the procedures through which the fuel tanks will be removed and replaced. 92-232 ORDER In City Council April 27.1992 areement mended by substitution and aider Sitl¢� Passed Authorizing and directing the City ...................................... -S- manager to execute agreement with General Electric Company regarding 'the're !1 �f "i nd'rgpi '�eerground fuel- - .. Aeup"te w i u s, c utd & ...... .. .......unci..... e cD Councilmen } Ic x i r i 92-232 �:' TO: Cmmtunity s Economic Development Comsittee FR: Ken Gibb, Director of Community a Economic Development Dept,7 RE: Agreement with General Electric DATE: April 17, 1992 City staff has been working with General Electric Company regarding the removal and replacement of underground fuel storage tanks at D.E.'s 4 airport buildings. The buildings are owned by the City and leased to General Electric. G.B. wishes to replace the existing 6 underground tanks with 5 above ground tanks. The proposed cost of the above ground tanks as designed will result in a much higher cost. However, G.E. is willing to pay the incremental test of the above ground system. The provisions of the proposed agreement include: 1. The City and G.E. agree that the coat of an underground system would be $3000000. (The City has had two estimates done in order to establish this number.) 2. G.E. will be fully responsible for the additional cost of the above ground system. 3. G.E. will be responsible for the bidding and construction management of the project. 4.. The City will have full access to bid documents, rights to inspect construction etc. 5. Upon completion of the work, the City will pay G.E. the sum of $300,000. Source of the funds is the 1.2 million dollars set aside for fuel tank replacement at B.I.A.' 6. If during the tank removal, contaminated soil is discovered, the City will he responsible for the mitigation if it is determined that the contamination results from fuel tank leakage. If the contamination is from G.E.'s operationv the company has this responsibility. A draft of the agreement is being reviewed by Erik Stumpfel and Sob aiegelaar and staff will be prepared to discuss this proposal on Wednesday evening. KRG/rp 92-232 DRAFT -- NGT FOP EkE RIGN �ICYa�. i is Agreement made and entered into as of the day of April, 1092, by aM between General Electric company, a New York wrporation ("GE" the E1 y of Bangor ("Lessor"1. ), and RECITALS and Lessor are parties to an Indenture of Lease dated ,lune 10, amended, and an Indenture o4 Lease dated November 19, 1987, at (col i actively the leases") whereby 6E Power Generation Dans Bangor, Maine facility leases from Lessor certain real and fiASurAa a4 the Aaft or Airport. There are underground oto 9sociated PlPin4 and appurtenances to the foregoing he `ez7 s4 located on the premises leased by the Lessor to GE under the te, the new existing tanks by the new in d Sufficciency ofewhieh are e for herebood y acknowledged, thble e®parties the agree The work contemplated by this Agreement (the "Work") shall eonalst of removal of the ezlsting tanks, replacement thereof by the new tanks and related activities, as mare fully described an Schedule A. GE shall act as Lessor's agent in supervising performance of the Work, shall contract for performance of the Work with third Parties ("Contractor"), $hall monitor and oversee the Contractor's performance of the Work, and shall provide Lessor With periodic reports on the status of the Work. As Lessor under the Leases, Lessor authorizes CE to contract with Contractor for the performance of the Work. The parties acknowledge that GE shall contract directly with the Contractor for the perfarmenca and CwPletign of the Work; provided, that GE agrees to consult with Lessor and permit the Lessor to review the contract and any 92-232 related agreements between BE and Contractor pre or to contract execution. BE shall confirm that the Contractor has obtained all required permits to perform the Work and both Lessor and GE shall ensure that ail other permits and licenses required to be provided 6 a property owner and/Or leaseholder for such Work shall b! Obtained pryer to authorizing the Contractor to commence activates on the site. The parties acknowledge that GE's Bangor facility is not acti as a general contractor for the Work, but rather is a ng manufacturing entity and does not have any special expertise in the removal, reelacement, and operation of underground storage tanks. CE shall not be responsible for the Work performed by the Contractor and makes no representations or warranties, whether express, Statutory or Implied, with respect to the Work. BE shall not be responsible for any delays attributable to the actions or omissions of the Contractor or farce Majeure events. Subject to the terms hereof, GE shall be responsible for payment to the Contractors of the purchase price of the Work. After payment is provided to GE under paragraph 2. BE shall upon request of Lessor, seek to transfer to Lessor any warranties or Other obligations of the Contractor with respact to the Work. Work shall be completed on or In gra ter Of (f) the prorate portion of avec, payment Shan Day BE tae on he Amount of the Work completed , or III thetMount paiddby based the Contractor as of that date, with the balance of the amount due to be ba td when the Work is completed. in the event payment is not Spappifiedwithin five herein, interesbusiness shall accrueaon ft any any amounts at the nt date rat AI Of twelve percent (129) par annum and GE may set-off any balance ackaowifnst any of its obligations under the Leases. The parties W!r andd timetablehtherefortsot tfn•ewh4 herein 55 based an the scope Of rk shall be completed In accordance with the scope Of work Ad hereto as Schedule A. CE shall have the right to approve an non -substantial changes to the scope of work. Any material s in the scope of work shall be reviewed with and approved by essar and CE prior to the scope of work being changed. antatives of BE will meet with representatives of Lessor to the status Of the Work, any changes, and other developments ing the scope of work on not less than a bi-weekly basis. iwa.n,.w 1 .2 92-232 Contractor Insurance GE shall require that the Contractor who performs the Work shall maintain insurance of the types and in the amounts set forth on Schedule C attached hereto. GE shalt receive copies of certificates of insurance from the Contractor evidencing such coverage prior to the Contractor commencing activities on the site and make them available to Lessor upon request. GE Insurance GE shall maintain insurance on the demised property under the Leases as specified in the Leases. HIU nne it,_„ipyi l (1) Lessor warrants and represents that the demised premise, under the Leases are now, and shall remain throughout the term of the Leases, including the time of performance of the Work under this Agreement(, free of all Hazardous Materials, Lessee defined HazardousrMaterial s, as definof this ed ins Paragraph (3)ofthis provision 4(C). In furtherance of this warranty, Lessor shall: (a) immediately forward to GE copies of any and all no ti cos, comesyondence, warnings, guidelines, Or Other written materials received from, or given to, any governmental authority in connection with Hazardous Materials and their relationship to the demised premises; (b) conduct and complete, at its own expense, all investi- gations, studies, samplingg and testing, and all remedial, removal, and CCU actions necessary to clean up and remove all Hazardous Materials in, under, upon, from, or affecting the demised premises, to the extent required by and in accordance with all applicable fedora', state, and local laws, regulations, rules, ordinances, an d. policies, and in accordance with orders and directives of any federal, state, or local governmental authority; (c) defend, indemnify, and hold harmless GE, its employees agents, officers, and directors from and against any , and Ott claims, demands, penalties, fines, liabilities settlements, damages, costs, or expenses (including, , without and consultantfees, Investigation,, ntestingnand laboratory lamm.m%w 1 -3- 93-333 fees, court costs, and litigation expense$) Of whatever kind or nature, known Or unknown, contingent or otherwise, arising out or in any way related to: (i) the discovery, presence, disposal, release, Or threatened release Of any Hazardous Materials within, under, upon, from, or into the demised Premises; (I1) any personal injury(including wrongful death) or Property damage (real Or personal) arising out or related to any Hazardous Materials, which concern the demised promises; any 10941 action brought or threatened before any court or agency, settlement reached, Or government order relating to any Hazardous Materials which concern the demised premises; and/or (nv) soy violation of laws, orders, regulations, requirements, Or demands of government authorities now in affect or in effect at any time 1n the future, which are based upon or in any way related to any Hazardous Materials which concern the cleansed promises; Provided, however, that this indemnity shall not apply with respect to Lessee Hazardous Materials as defined in paragraph (3) 01 this provision 4(L). (2) GE warrants and represents that, as to Lassa, Hazardous Materials, as defined in Paragraph (3) of this provisnop 4(00 GE shall: (a) immediately forward to Lessor copies of any and all notices, correspondence, warnings, guidelines, or other written materials received from, or given to, any Overnmental authority in connection with Lessee e 4rdous Materiels and their relationship to the demised premises; (b) conduct and complete, at its own expanse, all ihvesti- 9ations, studiea. sampling and 4eating, and all remedial, removal, and Other actions necessary to clean up and remove A, Leasee Hazardous materials 5n, under, upon, tram, or affecting the demised premises, to the extent required by and in accoroonce with all appi It federal, state, and local laws, regulations, rules, ordinancesand policies, and in accordance with orders and directives of any federal, state, or local 'nvg000dd faInman thaconcerningewhatherhLessee Hazardowsex lsea 1�w+.p 1 -4- 92-232 Materials are involved, the Lessor shall perform these functions under this subparagraph (g)(b), subject to a determination under Paragraph (7), below; (c) defend, indemnify, and hold harmless Lessor, its employees, agents officers, and directors from and against any and ail claims, demands, penalties, fines, 114bilities, settlements, damages, costs, or expenses (including, without limitation, attorney, engineering, "'consultant fees, investigation testing and laboratory fees, court costs, and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out or in any way related to: (i) the discovery, presence, disposals release, or threatened release of Lessee Hazardous Materials within, under, upon, from, or into the demised Premises; (ii) any personal in Jury(including wrongful death) or DrODeYty damage (real or personal), arising out or related to Lessee Hazardous Materialswhich concern the demised prdmisea; , (til) any legal action brought or threatened before any court or agency, settlement reached, or government order relating to Lessee Hazardous Materials which concern the demised premises; and/or (tv) any violation of laws, orders, regulations, requirements, or demands of government authorities now in effect or in effect at. any time in the future, which are based upon or in any, way related to Lessee Hazardous Materials which concern the demised premises; provided, however, that this indemnity shall Only apply with respect to Lessee Hazardous Materials. (3) As used in this provision 4(C), "Lessee Hazardous Mater1 tis, shall mean thdse HgzaMDls Materials placed an the demised preml sea by GE or We employeeafter s agents, contractors or Lessors or its temployeesjnagents (other essem,th aneGEsunderxcluding Ile ase$shallcontractorOr business invitees) at any time this w tie the Leases shalt be in effect. Less Matzardous erials Placed don, withinfrom or ous Material shall uyydda,nclude a into the demised premises which are attMOutabie t0 the existing tanks on the demised premises (including but limited to any leak, spill from Or rupture or malfunction of such -e- 5. 92-232 facilities or their appurtenances) or the removal or replacement of the existing tanks as contemplated by this Agreement, excluding any negligent act In the filling of said facilities by Lessee's agents. (f)the existingthe tanks�by the eewthe tanksmand land acCeptareplacement te eomfethe X82ardLessee busWork baI on tertalsentemplated In Schedule shall Include Hazards" Materials placed Ob, within, under, upon, from or into the demises premises by 6E or Lessee's agents attributable to the new tanks placed on the demised premises. (4) GE shall the ensure ntwr Contractor beresB responsible any Hazardous thatith Materials it places on the demised premises under the Leases. (S) Any liability for Hazardous Materials or Lessee Hazardous Materials whether discovered during the performance of the Work or after performance of the Mork, shell be subject to the terms of this provision and comparable provisions 1, the Leasee. (6) As used herein, "Hazardous Materials" shall use flammable explosives, ruaradioactive dtitnmaterials, hazardous hazardous ormaterials csubstaneomter, oil or other petroleum products, asbestos, chemical Pollutants Or related materials, including, as defined in the Comprehensive Environmental Response, Compensation and LLiability Act of 1980, es amended (42 U.S.C. Section 9601 gi ie resource ,42 U.S.C. Section' and DObi tlprOnlulgated Pursuantthereto,SOr Anions yOtherted f""O0e her substances or materials constituting a hazard, peril, or threat to the health of persons, animals, or plant life. (7) The parties agree to submit any disputes concerning w6otheY, Hazardousor the tent Materials,t&i defieduabove orlthere Les extentato which costs, losses, claims or expenses Of any kind are attributable to Lessee Hazardous Materials, to binding arbitration under the applicable rules and procedures of the American Arbitration Associatlun, by any arbitrator selected by agreement of the parties or, failing agreement, appointed by the American Arbitration Association. events under this Agreement shall mean any events beyond Control of a party, Including, without limitation, meaatvp 1 .6_ 92-232 acts or failures to act, failure to obtain or delay in ensee Or permits, Strikes, labor disturbances and act$ of standing the foregoing, payment obligations under this 11 not 8e excused or delayed as a result of any Force , e DYDYlbfand of the Leases shall ayply to the Work and the real P oparty and flx4eres affected thereby, as applicable. 7. E Lire Aare:msna a. sets forth the entire agreement0etween GE and lessor the $Ubgreemmatter hereof, and none of the terms or his Agreement t (including amy schedule appended hereto) or modified except with the written approval of both shall be governed by and construed in accordance with State of Maine. j.eamw,.•s 1 _7- =,n un s agreement shall be deemed effective from the date of exanation 11 all abliQ@atians to have been performed, The Agreement may be urinated by (i mutual a agreement or (II) either party for cause for ateriat bread hereunder if after 10 days in prior written notice of a the eencedrial btoacurech eby ca takingepDroprtate actsbnShas kheabreach cure or 10, viv , NO in ther completion of the Work nor any termination or cancellation of s Agreement olsto shall be deemed to relieve either party of any lgnatIoationn nder orraancellatton,Includingnature but a promises Of notsurvive limitedsuch tooal l indemnity under provision a(Q. IT.. The P failure of GE or Lessor to Insist on strict compliance with any inion hereof shall oth hat be deemed a waiver of such provision or any r provision hereof. 12. The Invalidity or unenforceability of any provision or portion hereof t not affect the validity on or Jhe or enfarteabil tt ton remaining portions of the Provision dammed ftonbe0Invalther id une4forceable, or j.eamw,.•s 1 _7- 92-232 13. ruts Agr0"Ont shall inure to the benefit of, and be binding upon, GE j�nd Lessor and the parties' respective successors and assigns. 71 MITNUS WHEREOF, the parties hereto have executed this Agreement as of th day first above written. ELECTRIC COMPANY BANGOR BY: BY: _ TITLE: TITLE: -a-