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HomeMy WebLinkAbout2020-01-13 20-048 Order 01/13/202020-048 01/13/2020 20-048 Airport Order 001-001 Title, Order Authorizing the City Manager to Execute an Airport Joint Use Agreement Between the United States of America, the National Guard Bureau and the City of Bangor at Bangor International Airport. This order will authorize the City Manager to execute an Airport Joint Use Agreement (AJUA) between the United States Government, National Guard Bureau and the City of Bangor for shared duties and responsibilities at Bangor International Airport (BGR). Under the terms of the agreement, the City of Bangor will provide snow removal and grounds maintenance and the National Guard will provide Aircraft Rescue and Firefighting (ARFF). The proposed agreement is a ten (10) year renewal agreement effective from 1 October 2019 through 30 September 2029. The City’s Legal Department has reviewed and approved the AJUA agreement, as well as the associated Snow & Ice Removal Plan and MOA for ARFF services. Airport Committee 01/06/2020 Recommend for passage Staff recommends approval. Consent 01/13/202020-048 CITY OF BANGOR ORDER 01/13/2020 20-048 Tremble Authorizing the City Manager to Execute an Airport Joint Use Agreement Between the United States of America, the National Guard Bureau and the City of Bangor at Bangor International Airport. WHEREAS, The City of Bangor owns and operates the Bangor International Airport; and WHEREAS, Bangor International Airport and the National Guard Bureau are interested in renewing the airport joint use agreement; and WHEREAS, The AJUA is a ten (10) year renewal agreement, which expires at the end of September 2019 and the AJUA renewal term will be effective from October 2019 through September 2029; and WHEREAS, The AJUA agreement describes the roles and responsibilities of each Party in the operation of the airfield, and as a joint use, civilian and military use airport, each Party will share duties and responsibilities; and WHEREAS, As part of the AJUA, and also included, is the Snow & Ice Removal plan describes the purpose and scope, responsibilities, and operations for all personnel involved in snow removal operations; and WHEREAS, As part of the AJUA, and also included, is the Memorandum of Agreement for Aircraft Rescue and Firefighting (ARFF) services which describes the procedures and documents required for determining compliance with FAA Part 139 requirements; and WHEREAS, It would be advantageous to both parties to renew this agreement. NOW, THEREFORE, BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR, That The City Manager is authorized to enter into agreements with the United States of America, the National Guard Bureau, for the purposes of renewing the airport joint use agreement at Bangor International Airport. IN CITY COUNCIL JANUARY 13,2020 CO 20-048 PASSED 5c ., a CITY CLERK JOINT USE AGREEMENT CITY OF BANGOR AND UNITED STATES OF AMERICA AND STATE OF MAINE (BANGOR INTERNATIONAL AIRPORT) TABLE OF CONTENTS RECITALS ......................................................................................................................................1 GREEMENT.................................................................................................................................2 A 1.DEFINITIONS .....................................................................................................................3 2.JOINT USE ..........................................................................................................................3 3.CITYRESPONSIBILITIES ...............................................................................................3 4.GOVERNMENT RESPONSIBILITIES .............................................................................4 5.PAYMENTS ........................................................................................................................4 6.AIRFIELD MANAGEMENT .............................................................................................5 7.GOVERNMENT RESERVED RIGHTS ...........................................................................5 8.FIRE PROTECTION AND CRASH RESCUE ...................................................................6 9.RECORDS AND BOOKS OFACCOUNT ........................................................................6 10.TERM ..................................................................................................................................6 11.TERMINATION ..................................................................................................................7 12.GENERAL PROVISIONS ..................................................................................................8 13.MAJOR REPAIRS AND NEW CONSTRUCTION ...........................................................9 14.CHANGED CIRCUMSTANCES .......................................................................................9 15.NOTICES………………………………………………......…………………………….10 JOINT USE AGREEMENT THIS AGREEMENT made and entered into this ____ day of __________, 2019, by and between the CITY OF BANGOR, ME; acting by and through its City Manager (“City”) and the UNITED STATES OF AMERICA, acting by and through the Chief, National Guard Bureau(the AirForce ), and the STATE OF MAINE(“State”), acting by and through its Adjutant General (collectively, “Government”),The Government and the City are sometimesreferred to collectively in this Agreement as the “Parties” and individually referred to as a“Party”. RECITALS A.The City owns and operates Bangor International Airport (“Airport”), located in the City of Bangor, State of Maine. B.Title 49, United States Code, Chapter 471, "Airport Development," (49 U.S.C. Sections 47101-47129, including but notlimited to 49 U.S.C. §47107(a) (11)) provides that each of the Airport's facilities developed with financial assistance from the United States Government and each of the Airport's facilities usable for the landing and taking off of aircraft always will be available without charge for use by the United States Government aircraft in common with other aircraft, except that if the use is substantial, the Government may be charged a reasonable share, proportionate to the use, of the cost of operating and maintaining the facility used. C.The Government requires substantial use of the flying facilities at the Airport for the Maine Air National Guard 101 Air Refueling Wing (AFW))as well as for other occasional transient United States Government aircraft. For purposes of this Agreement, 101 AFW Operations includes all training and operational missions that are operated by the 101 AFW. D.The Cityis agreeable to such substantial use, in common with other users of the Airport, of the flying facilities by the Government under this Agreement. E.“Substantial use” within the meaning of FAA Compliance Manual Order 5190.6B and Grant Assurance 27 and 49 U.S.C. 47107(a) (11) refers to the collective use by United States Government aircraft and not individual branches or bureausof the U.S. military and/or Federal Agency. For example, if two Federal agencies conducted operations at an airport; and the total landings by those agencies’ aircraft exceeded 300 during a calendar month, the Citymay charge each Federal Agency for its proportional use of airport facilities. 1 -Airport Joint Use Agreement F.The joint use payments required in paragraph 5 below represents the proportionate share of transient Air National Guard and 101 AFW101 Air Refueling Wing (AFW)“substantial use” of the Airport and does not include other transient military and/ or United States aircraft use of the Jointly Used Flying Facilities not reported historically by the 101 AFWto the Cityas part of 101 AFWOperations. The Parties agree that the Cityhas primary responsibility to identify and advise other United States Government users that appropriate charges will result from use of the Airport. G.The U.S. Government agrees to make a good faith effort based on its available records, if any, and/or information provided by the Cityor by the Airport’s control tower to support the City’s efforts to identify other United States Government users. All Parties agree that the City’sefforts to identify all United States Government aircraft landing at the Airport is intended to allow fullreimbursement to the Cityfor the proportionate share of the total United States Government users (assigned and transient) for the Jointly Used Flying Facilities. The Parties agree that renewal of this Agreement will not be delayed if the City; through its best efforts, is unable to identify other transient United States Government aircraft landing at the Airport. H.In accordance with Air Force policy, there shall only be one agreement supporting Air Force military operations for each civil airport used. When more than one Air Force unit regularly uses an airport, the Deputy Assistant Secretary of the Air Force (Installations) will designate a lead unit (normally the Air National Guard through the National Guard Bureau) who will attempt to account for the use by all Air Force activities and be the lead in discussions with the City. Any Air Force user that refuses, fails to participate, or does not reply to requests from the Deputy Assistant Secretary of the Air Force (Installations) will be directed to terminate operations at the Airport. I.All non-Maine Air National Guard 101 AFWAir Force users will be billed directly by the Cityand pay its fair share directly to the City. All other Federal agencies and branches or bureaus of the U.S. military will needto work directly with the Cityto pay their fair share proportionate to their use, of the cost of operating and maintaining the Jointly Used Flying Facilities. Those users that refuse, fail to participate, or do not reply to requests from the Citywill bedirected to terminate operations at the Airport by the appropriate authority. T he Government and the Citydesire to provide for the delineation of responsibility for operation and maintenance of the flying facilities jointly used in common with others atthe Airport, and to establish the Government's reasonable share, proportional to such use, of the cost of operating and maintaining such jointly used flying facilities, as outlined in paragraph 5 herein 2 - Airport Joint Use Agreement AGREEMENT 1.DEFINITIONS For purposes of this Agreement, the jointly used flying facilities of the Airport are the runways, taxiways, lighting systems, navigational aids, markings and appurtenances 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 as may be added or constructed from time to time ("Jointly Used Flying Facilities"). The Jointly Used Flying Facilities do not include land areas used exclusively by the Governmentor the terminal buildings, hangars, aircraft parking aprons and ramps, or other areas or structures used exclusively by the City or its lessees, permittees, or licensees for civilian or commercial purposes. 2.JOINT USE Subject to the terms and conditions of this Agreement, the Air Force 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 Air National Guard installation and other Government facilities located on the Airport. Routes for ingress and egress for the Air Force's employees, agents, customers and contractors shall not unduly restrict the Air Force in its operations. 3.CITY RESPONSIBILITIES The City will be responsible for the following services and functions, to standards in accordance with Paragraph 6 below: a.Furnishing all personnel, materials and equipment required in the rendering of the servicesto 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 markings and repair or replacement of damaged sections of airfield pavement, (to include the Heavy Duty Ramp); (2)Runway, taxiway, and approach lighting and the regulators and controls therefor; (3)Beacons, obstruction lights, wind indicators, and other navigational aids; 3 - Airport Joint Use Agreement (4)Grass cutting and grounds care, drainage, and dust and erosion control of unpaved areas, adjacent to runways and taxiways; (5)Sweeping runways and taxiways; (6)Controlling insects and pests; (7)Participate in the removal of snow, ice and other hazards from active joint use Air Forceuse runways, taxiways, aprons, overruns and other airfield pavements; within a reasonable time after such facilities have been so encumbered based on an established priority. Coordinate with the Air Force for snow and ice removal from all taxiways, aprons and other airfield pavements used by Air Force aircraft. The parties shall enter into a separate mutual aid agreement, the Snow and Ice Control Plan, which shall specifically set forth each party’s responsibilities for snow andice removal. c.Furnishing utilities necessary to operate the Jointly Used Flying Facilities. d.Removing disabled aircraft as expeditiously as possible, subject to the rules and regulations of the National Transportation Safety Board, in order tominimize the time the Jointly Used Flying Facilities, or any part thereof, would be closed because of such aircraft. 4.GOVERNMENTRESPONSIBILITIES The Air Force will be responsible for the following: a.Removing disabled Air Force aircraft as expeditiously as possible in order to minimize the time the Jointly Used Flying Facilities, or any part thereof, would be closed because of such aircraft. b.Subject to availability of appropriations therefor, repairing within a reasonable time; damage to the Jointly Used Flying Facilities to the extent that such damage is caused solely by Air Force aircraft operations and is in excess of the fair wear and tear resulting from the military use contemplated under this Agreement. c.Participate substantially in the snow and ice removal from all joint use and Air Force exclusive use runways, taxiways, aprons, overruns and other airfield pavements. The parties shall enter into a separate mutual aid agreement, the snow and ice control plan, which shall specifically set forth each party’s responsibilities for snow and ice removal. 5.PAYMENTS a.In consideration of and for the faithful performance of this Agreement, and subject to Paragraph 8 below, and the availability of Federal appropriations, the Government shall pay to 4 - Airport Joint Use Agreement the City a proportionate share of operating and maintaining (O&M) costs for the Jointly Used Flying Facilities. As the Government provided fire-protection crash and rescue services for civil aircraft are provided at no additional cost to the City,and provides snow removal equipment, maintenance and fuel for said equipment,the value of the Government’s proportionate share of operating and maintaining cost is equal to or greater than the Citycost-avoidance for the provided services. No payment is required from the Government. For accounting purposes only, a one- time nominal amount of One Hundred Dollars and 00/100 ($100.00) for the entire period and will be paid by the Governmentwithin ninety (90) days of execution of this Agreementandreceipt of a valid invoice from the Airport. b.Payment for the period set out in Paragraph 10, shall be made upon submission of appropriate invoice to the Air Force as designated in Paragraph 5cbelow; provided, however, that if during the term of this Agreement, sufficient funds are not available through the annual appropriations at the beginning of any fiscal year to carry out the provisions of this Agreement, the Air Force will so notify the City in writing. c.Bills for the payments provided hereunder shall be directed to: 101 ARW/CE 106 Ashley Street, Suite 486 Bangor ANG Base, ME 04401-3501 or to such other address as the Air Force may from time to time provide to the City in writing. d.Either party may request renegotiation if either party, at the request or with the formal concurrence of the other, as the case may be, requires services not contemplated by this Agreement, or reduces or eliminates services it undertakes to provide under this Agreement. 6.AIRFIELD MANAGEMENT a.The City agrees that maintenance of the Jointly Used Flying Facilities shall, at all times; be in accordance with Federal Aviation Administration (“FAA”) standards for the operation of a commercial airport and operationof jet aircraft. b.The Air Force agrees that any markings and equipment installed by it pursuant to Paragraph 7 of the Agreement shall be coordinated with the City, and not be in conflict with FAA regulations andstandards. 7.GOVERNMENT RESERVED RIGHTS The Air Force reserves the right, at its sole cost and expense and subject to Paragraph 6b above, to: 5 - Airport Joint Use Agreement a.Provide and maintain in the Jointly Used Flying Facilities airfield markings required solely for military aircraft operations. b.Install, operate and maintain in the Jointly Used Flying Facilities any and all additional equipment, necessary for the safe and efficient operation of military aircraft including but not limited to arresting systems and navigational aids. 8.FIRE PROTECTION AND CRASH RESCUE a.The Government maintains a fire fighting and crash rescue organization in support of military operations at the Airport. The Government is the primary source for aircraft rescueand firefighting services at the Airport for both civil and military aircraft. Within the limits of the existing capabilities of this organization, the Government agrees to respond to fire and crash rescue emergencies involving civil aircraft, subject to subparagraphs 8b, 8c, and 8d below. b.The City agrees to release, acquit, and forever discharge the Government, its officers, agents, and employees for all liability arising out of or connected with the use of or failure to supply in individual cases, Air Force firefighting and crash rescue equipment or personnel for fire control and crash rescue activities at or in the vicinity of the Airport. The City agrees to the extent allowed under applicable law to indemnify, defend, and hold harmless the Government, its officers, agents, and employees against any and all claims, of whatever description, arising out of or connected with such use of or failure to supply in individual cases, Air Force firefighting 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 employees of the United States, without contributory fault on the part of any person, firm, or corporation. The City agrees to execute and maintain in effect a hold harmless agreement as required by applicable Air Force instructions for all periods during which emergency fire-fighting and crash rescue service is provided to civil aircraft by the Air Force. This provision shall survive the termination or expiration of this Agreement. c.The City will reimburse the Air Force for expenses incurred by the Air Force for fire-fighting and crash rescue materials expended in connection with providing such service to civil aircraft. d.The Government’s responsibility under this Paragraph 8 shall continue only so long as a fire fighting and crash rescue organization is authorized for military operations at the Airport. The Government shall have no obligation to provide any increase in fire-fighting and crash rescue equipment or personnel or to conduct any trainingor inspection for the purposes of this Paragraph. It is further understood that the Government’s fire-fightingand crash rescue equipment shall not be routinely parked on the Jointly Use Flying Facilities during non-emergency landings of civil aircraft. If the Government intends to discontinue aircraft rescue and fire-fighting operations, the Government will provide the Airport with notice of its decision twelve (12) months prior to ceasing service. 6 - Airport Joint Use Agreement 9.RECORDS The City agrees to keep records and books of account, showing the actual cost to it of all items of labor, materials, equipment, supplies, services, and other expenditures made in fulfilling the obligations of this Agreement. The Comptroller General of the United States or any of his or her duly authorized representatives shall, until the expiration of three (3) years after 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 contractors or subcontractors engaged in the performance of and involving transactions related to this Agreement. TheCity further agrees that representatives of the Air Force Audit Agency or any other designated representative of the Air Force shall have the same right of access to such records, books of account, documents and papers as is available to the Comptroller General. Nothing containedin this Paragraph shall diminish or in any way adversely affect the Government’s right to discovery in any pending or future litigation. 10.TERM This Agreement shall be effective for a term of ten (10) years beginning 1 October 2019, and ending 30 September 2029. 11.TERMINATION a.This Agreement may be terminated by either party with or without cause at any time by giving at least twelve months’ notice thereof in writing to the other party. b.T he Air Force, by giving written notice to the City, may terminate the right of the City to proceed under this Agreement if it is found, after notice and hearing by the Secretary of the Air Force or his or her duly authorized representative, that gratuities in the form of entertainment, gifts, or otherwise, were offered or given by the City, or any agent or representative of the City, to any officer or employee of the Government with a view toward securing this 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 representative makes such findings shall be an issue and may be reviewed in any competent court. c.I n the event this Agreement is terminated as provided in subparagraph 11a(1) above, the Government shall be entitled to pursue the same remedies against the City as it could pursue in the event of a breachof the Agreement by the City and in addition to any other damages to which it may be entitled by law, the Government shall be entitled to 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 ten (10) times the costs incurred by the City in providing any such gratuities to any such officer or employee. 7 - Airport Joint Use Agreement d.The rights and remedies of the Government provided in subparagraph 11b above shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. e.The parties agree that United States government aircraft (including Air National Guard aircraft) have the right to use the Jointly Used Flying Facilities under 49 USC 47107 § (a)(11) and the City's compliance with its Federal Aviation Administration Airport Improvement Program grant obligation regarding use by United States Government aircraft of the flying facilities will continue and the City will not interrupt, obstruct, block, or impede United States government aircraft (including Air National Guard aircraft) aircraft operations (landings and takeoffs), if the City elects to cancel this Agreement pursuant to paragraph 11(a). The City agrees to negotiate in good faith a new joint use agreement under the same terms and conditions of this Agreement. This provision shall survive the termination of this Agreement. 12.GENERAL PROVISIONS a.Compliance with Law. The City shall comply with all Federal, state and local laws, rules and regulations applicable to the activities conducted under this Agreement. b.Assignment. The City shall neither transfer nor assign this Agreement without the prior written consent of the Air Force, which shall not be unreasonably withheld or delayed. c.Liability. Except as otherwise provided in this 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 Jointly Used Flying Facilities or occurring as a consequence of the performance of responsibilities under this Agreement. d.Third 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 construedto extend to this Agreement if made with a corporation for its general benefit. e.Entire 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 Air Force, and there are no understandings or agreements, verbal or otherwise, between the parties in regard to 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 Air Force in the use of the Jointly Used Flying Facilities during the term of this Agreement. f.Modification. 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 future performance of any such terms, conditions, covenants, or provisions. No provision of this Agreement shall be deemed to have been waived by either party unless such waiver be in writing signed by such party. 8 - Airport Joint Use Agreement h.Paragraph Headings. The brief headings or titles preceding each Paragraph and subparagraph are merely for purposes of identification, convenience, and ease of reference, and will be completely disregarded in the construction of this Agreement. 13.MAJOR REPAIRS AND NEW CONSTRUCTION Major repair projects and/or new construction projects required for the Jointly Used Flying Facilities (collectively, "Joint Use Projects") are not included under this Agreement. Any Air Force contribution to JointUse Projects shall be the subject of separate negotiations and written agreement between the City and the Government at such time as the work is required. Any Government 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 in 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, ME 04401 b.Written communications to the Air Force shall be in duplicate with copies to the United States of America and the Stateof Maine addressed respectively, as follows To the United States of America: NGB/A4 3501 Fetchet Avenue Joint Base Andrews, Maryland 20762-5157 To the State of Maine: 9 - Airport Joint Use Agreement The Adjutant General Maine ANG HQ FFL710 23 Blue Star Avenue Augusta, ME 04333-0032 ~REMAINDER OF PAGE INTENTIONALLY LEFT BLANK~ 10 - Airport Joint Use Agreement IN WITNESS WHEREOF, the respective duly authorized representatives of the Parties hereto have executed this Agreement on the date set forth opposite their respective signatures. CITY OF BANGOR MAINE Dated: By: (Title) Approved as to form and legal sufficiency: Dated:STATE OF MAINE Coordinated with: By: U.S. Property & Fiscal OfficerThe Adjutant General Dated:THE UNITED STATES OF AMERICA By: For the Chief,National Guard Bureau 11 - Airport Joint Use Agreement