FACILITIES USE AGREEMENT
This Facilities Use Agreement, Number DAAC67-93-C-0021, (the 'Agreement')
is made and entered into as of this 21st day of April, 1993, by and between the
United States of America ('Government') and FMC Corporation, Paladin Production
Division ('Contractor') (hereinafter collectively referred to as the 'Parties').
RECITALS
WHEREAS, Government is the owner of certain real property located in the
County of Franklin, State of Pennsylvania, more particularly described in
Schedule A, attached hereto and incorporated herein by reference (the
'Property'); and
WHEREAS, Government desires to provide the Property to Contractor, and
Contractor desires to use the Property for the purpose of producing supplies and
services for Government in connection with M109A6 Paladin Self-Propelled
Howitzers and for other purposes as described further herein; and
WHEREAS, the providing of the Property by Government will facilitate its
procurement of essential supplies and services and promote the national defense;
and
WHEREAS, the providing of the Property by Government is deemed to be in
support of industrial preparedness programs in the public interest,
NOW, THEREFORE, in consideration of the mutual promises and conditions set
forth herein, Government and Contractor hereby agree as follows:
I. Provision Of Property.
A. PROVISION. The Government hereby provides the Property to FMC, and
FMC hereby agrees to use the Property as provided by Government, upon the terms
and conditions set forth in this Agreement.
B. USE OF PROPERTY. Contractor is authorized to occupy and use the
Property for (1) the production of M109A6 Paladin Self-Propelled Howitzers
pursuant to Contract No. DAAA21 93-C-0044, awarded by the Department of the
Army, AMCCOM, Picatinny Arsenal (the 'Contract'), (2) other uses which may be
deemed under federal statute or regulation to be Government use, and (3) such
other work (not considered to be Government use) as the Commander of Letterkenny
Army Depot ('LEAD') approves, consistent with federal statute or regulation.
C. TERM, OPTION TO EXTEND, AND TERMINATION. Notwithstanding any
provision to the contrary herein or in the FAR, the term of this Agreement
('Term') shall be for a period commencing on the date first written above and
ending on December 31, 1999. The parties hereto may by mutual written agreement
extend the use of the Property under this Agreement beyond December 31, 1999 to
permit completion of the Contract. The Government shall use its
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best efforts to ensure that the Property shall be ready and available for
occupancy by Contractor, and cleared of all stored materials and asbestos
containing materials, on or before May 15, 1993.
D. MONTHLY RENT WHERE CONTRACTOR PERFORMS ONLY CONTRACT OR 'GOVERNMENT
USE' WORK. As provided in FAR 52.245-9(a), Contractor shall have no obligation
to pay any rent to Government provided that Contractor is performing only work
under the Contract or other work which is deemed to be Government use of the
Property.
E. MONTHLY RENT WHERE CONTRACTOR PERFORMS WORK OTHER THAN CONTRACT OR
'GOVERNMENT USE' WORK. If for any reason Contractor should use the Property for
any purpose other than performing Contract or 'Government Use' work, the Monthly
Rent for the Property for every month during which such other work may be
performed shall be $17,533, as adjusted in accordance with the following
formula:
Number of Paladins or M109 Self-Propelled
Howitzers produced, modified, or tested during the
month through other than Contract or Government
Use Work
Monthly Rent = $17,533 x -------------------------------------------------
Total Number of Paladins or M109 Self-Propelled
Howitzers produced, modified or tested during the
month through all work
F. MONTHLY RENT REPORT AND PAYMENT. By the Tenth day of each month,
Contractor shall deliver to Government the Monthly Rental, where appropriate, as
calculated above, together with a statement of (1) the Number of Paladins or
M109 Self-Propelled Howitzers produced, modified, or tested during the past
month through other than Contract or Government Use Work and (2) the Total
Number of Paladins or M109 Self-Propelled Howitzers produced, modified, or
tested during the past month through all work.
II. Special Provisions.
A. REASONABLE ACCESS FOR CONTRACTOR. Government agrees to allow and
provide for reasonable access to the Property, and to place no unreasonable
encumbrance upon Contractor's free use and enjoyment of the Property by
Contractor, Contractor personnel, authorized visitors and any other parties
having reasonable need to go in or upon the Property.
B. LEAD PROVISION OF UTILITIES AND SUPPORT SERVICES. LEAD shall make
available to Contractor all utilities and services set forth below in connection
with Contractor's use of the Property, and the parties hereto shall enter into
appropriate agreements concerning LEAD's provision of such utilities and
services and Contractor's payment to LEAD therefor.
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Water Security Receipt/ Storage
Sewage Traffic Management RR Switching Service
Electricity Fire Protection Safety
Snow Removal Trucking on Site Miscellaneous Maintenance
Guard Service (Gate) Intra-depot Mail Building Maintenance
Fuel/Heating Oil Entomology Services Roads & Grounds
Emergency Ambulance Service Maintenance
C. LEAD PROVISION OF TESTING FACILITIES AND SERVICES. LEAD shall make
available to Contractor the test facilities set forth below in connection with
Contractor's use of the Property, and the parties hereto shall enter into an
appropriate agreement covering LEAD's provision of such testing facilities and
Contractor payment to LEAD therefor.
Test Track
D. INSTALLATIONS, ARRANGEMENTS, REARRANGEMENTS, MODIFICATIONS AND
CONSTRUCTION. Contractor, at its own expense or as otherwise funded under a
separate contract with Government, agrees to construct or install, with prior
written approval of Government, any fixed improvements or structural alterations
or modifications to the Property necessary for Contractor to perform its
obligations under the Contract or in connection with other approved work. This
shall include, but not be limited to, bringing utilities to Building 56 and
providing for separate metering thereof, and making architectural/structural,
mechanical, electrical, or other renovations or alterations to the
Property/facility, and making improvements (including stabilization and
drainage) to any open storage areas to accommodate the work to be performed
under the Contract or other approved work. At the expiration or earlier
termination of this Contract, however, Contractor will not remove any such fixed
improvements or structural alterations or modifications; title to same will pass
to Government.
E. PERIODIC INSPECTIONS. Government reserves the right to perform
periodic preventive maintenance, fire protection and all other types of
inspections of the Property. This shall include, but not be limited to,
Government's right to perform environmental compliance and explosive safety
inspections.
F. CONTRACTING OFFICER'S REPRESENTATIVE. The Contracting Officer
cognizant of the Property shall designate in writing a Contracting Officer's
Representative (hereinafter 'COR') to insure that the parties comply with the
terms and conditions of this contract.
G. CONDITION OF PROPERTY. LEAD makes no warranty, express or implied,
regarding the condition or fitness for use of the Property. Notwithstanding the
foregoing, LEAD shall remove identified asbestos-containing materials from
Building 56 prior to Contractor's using the Building and shall perform, prior to
Contractor's use of the same, routine maintenance on and repair the rail siding
at Building 56 to insure its adequacy for operation by Contractor.
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H. COMPLIANCE WITH LAWS.
1. IN GENERAL. Contractor, at its sole cost and expense, shall
conduct its activities hereunder on the Property in compliance with all
applicable laws, regulations, rules, orders, decrees, permits and agreements,
including without limitation those which are promulgated by the Department of
Defense or any division or related agency thereof, and including without
limitation those which relate to health, safety, environmental protection, waste
disposal, and water and air quality with respect to the use of the Property and
the rights granted hereunder (all of which are hereinafter referred to as the
'Requirements'). Further, Contractor shall conduct its activities in compliance
with all Requirements to which LEAD may be subject with respect to the Property
and LEAD's operations related thereto. The parties agree that to the extent that
any new Requirements are imposed, or any of the existing Requirements are
changed during the term of this Agreement, Contractor retains the right to seek
an equitable adjustment or other appropriate change under the Contract as may be
permitted by law.
2. COOPERATION IN OBTAINING PERMITS. Contractor at its sole expense
shall obtain any and all permits, licenses, and other authorizing documents as
may be necessary for the use and possession of the Property, provided that
Government and LEAD shall cooperate with and give their best efforts to
Contractor to the extent reasonably necessary for Contractor to obtain such
permits, licenses, and other authorizing documents. Contractor shall obtain an
EPA waste generator identification number in its own name.
3. GOVERNMENT DISAPPROVAL OF CONTRACTOR ACTIONS. If the Government
or LEAD unreasonably disapproves or disallows any action that Contractor has
identified as reasonably required in order to meet its obligations under this
Section, Contractor shall be relieved of its obligations pursuant to this clause
for such action and any resulting conditions arising from the failure to take
such action.
I. ENVIRONMENTAL INVESTIGATION AND REMEDIATION.
1. POTENTIAL FOR CONTAMINATION AND INTENT TO APPORTION LIABILITY.
The Parties acknowledge that there is potential that environmental contamination
presently exists on the Property, and hereby express their mutual intent that
the purpose of this Section is to determine the present extent and nature of the
contamination, if any, and to determine, to the extent possible, the source or
sources of such contamination. Specifically, while FMC has agreed herein to
comply with all applicable laws, the Parties agree that it is not their intent
to require Contractor to cleanup or otherwise remediate any contamination which
may exist on or in the vicinity of the Property as of the commencement of this
Agreement.
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2. CONTRACTOR RESPONSIBILITIES. Contractor shall be responsible for
addressing and correcting to the extent required by applicable laws and
regulations any environmental pollution, contamination and/or damage to the
Property occurring after the effective date of this Agreement and resulting from
Contractor's use and/or possession of the Property on or after the effective
date of this Agreement, regardless of whether (a) such pollution, contamination
or damage is discovered before or after the expiration or termination of this
Agreement, or (b) corrective or response actions continue or are required to
begin after the expiration or termination of this Agreement. Contractor's
obligations pursuant to this paragraph do not extend to any acts of the United
States or its agents. Contractor is not an agent of the United States for
purposes of this exclusion.
3. CONTRACTOR RIGHT TO PERFORM ENVIRONMENTAL INVESTIGATIONS.
Provided Government awards the Contract to Contractor, Contractor shall
undertake a reasonable investigation of the Property, including taking soil and
groundwater samples as may be necessary, prior to the commencement of its use or
occupancy of the Property pursuant to this Agreement to determine the extent,
nature and possible source or sources of contamination, if any, which may
presently exist on the Property prior to Contractor's use or occupancy thereof
pursuant to this Agreement. Further, FMC shall perform a reasonable
environmental investigation of the Property at the conclusion of the Term of
this Agreement to determine the level and extent of contamination, if any, which
may then exist on the Property. Contractor shall provide to LEAD a copy of such
investigation results.
4. RESERVATION OF RIGHTS. Notwithstanding any other provision of
this Agreement, Contractor and the Government hereby reserve any and all rights
and defenses available under law or any other contract between the parties that
may apply to any liability to a third party, including without limitation other
federal, state or local governmental agencies, relating to or arising from
environmental conditions existing on, emanating from or relating to the Property
on the effective date of this Agreement. Nothing in this Agreement shall be
construed to abrogate any such rights and defenses.
5. GOVERNMENT AND LEAD DISCLOSURE OF ENVIRONMENTAL AND HISTORICAL
INFORMATION. Beginning on the effective date of this Agreement, LEAD shall use
its best efforts to provide to Contractor all information within its possession
concerning (a) the historical uses of the Property, (b) the type, quantity and
years during which hazardous substances have been stored, released or disposed
of at the Property prior to the effective date of this Agreement, including a
description of the response actions taken, if any, regarding such substances,
and (c) any other environmental conditions which may exist on the LEAD which may
have an adverse impact upon the Property. Government shall be responsible for
addressing any conditions arising from the use, treatment, storage, disposal,
discharge or release of any emission, waste, effluent, hazardous substance and
contaminant occurring before the effective date of this Agreement.
PAGE 5
J. ENVIRONMENTAL INDEMNIFICATION. As of the effective date of this
Agreement, Contractor shall indemnify, defend and hold the Government harmless
against any and all claims, demands, judgments, administrative actions,
enforcement actions and lawsuits against the Government alleging environmental
pollution, contamination, damage to property or personal injury and/or violation
of any environmental, health or safety law, regulation, permit, order, decree or
agreement, resulting from actions or omissions of contractor during Contractor's
use and/or possession of the Property pursuant to this Agreement. Contractor's
obligation pursuant to this paragraph shall continue regardless of whether such
allegations are made before or after the expiration or termination of this
Agreement. Contractor's obligations pursuant to this cause do not extend to acts
of the United States or its agents. Contractor is not an agent of the United
States for purposes of this exclusion. Contractor shall be relieved of its
obligations pursuant to this clause for any conditions arising from
environmental compliance or remediation activities which Contractor has proposed
to undertake and Government has unreasonably disapproved or disallowed to be
taken on the Property.
K. INDEMNIFICATION FOR THIRD PARTY NON-ENVIRONMENTAL CLAIMS. As of the
effective date of this Agreement, Contractor shall indemnify, defend and hold
the Government harmless against all claims for personal injury to any and all
persons and damage to property of Contractor or any and all other persons
arising from Contractor's use or possession of the Property, provided that: (1)
the provisions of Contractor's related procurement contracts shall govern any
assumption of liability by the Government for claims arising from those
contracts; and (2) indemnification for all claims involving environmental
pollution or contamination shall be governed by the Section of this Agreement,
titled 'Environmental Indemnification.'
III. Miscellaneous Provisions.
A. HEADINGS. The section headings of this Agreement are inserted only
for reference and do not affect the terms and provisions hereof.
B. INDUSTRIAL READINESS. The Property shall not be subject to or be made
part of any Emergency Production Planning unless otherwise agreed to in writing
by the parties hereto.
C. NOTICES. Except as otherwise provided in this Agreement, any notice
required or permitted to be given hereunder shall be delivered personally or
sent by mail with postage pre-paid to the following addresses or to such other
places as may be designated by the parties hereto from time to time.
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For Contractor: For Government:
Peter F. Scott Melinda N. Finucane
General Manager Attorney-Advisor
Paladin Production Division Letterkenny Army Depot
FMC Corporation SDSLE-CL
2890 De La Cruz Boulevard Chambersburg, PA 17201
Santa Clara, California 95052
D. INCORPORATION BY REFERENCE OF FAR AND DFARS CONTRACT CLAUSES. This
Agreement incorporates the following FAR and DFARS clauses by reference,
pursuant to FAR 52.252-02, with the same force and effect as if they were given
in full text.
DFARS 52.201-7000 Contracting Officer's Representative (Dec 1991)
FAR 52.202-1 Definitions (Sep 1991)
FAR 52.203-1 Officials Not to Benefit (Apr 1984)
FAR 52.203-3 Gratuities (Apr 1984)
FAR 52.203-5 Covenant Against Contingent Fees (Apr 1984)
FAR 52.203-7 Anti-kickback Procedures (Oct 1988)
FAR 52.212-8 Defense Priority and Allocation Requirements (Sep 1990)
FAR 52.212-14 Stop Work Order - Facilities (Aug 1989)
FAR 52.215-1 Examination of Records by Comptroller General (Apr
1984)
FAR 52.215-2 ALT I Audit-Negotiation (Dec 1989) -- Alternate I
(Apr 1984)
FAR 52.215-33 Order of Precedence (Jan 1986)
FAR 52.222-3 Convict Labor (Apr 1984)
FAR 52.222-17 Labor Standards for Construction Work - Facilities
Contracts (Feb 1988)
FAR 52.228-5 Insurance - Work on a Gov't Installation (Sep 1989)
Workmens' Compensation - $100,000
Comp. Gen'l. Liability - $500,000 pers. injury
$200,000 prop. damage
Comp. Auto. Liability - $200,000 per person
$500,000 bodily injury
$ 20,000 prop. damage
FAR 52.232-21 Limitation of Cost (Facilities) (Apr 1984)
FAR 52.233-1 Disputes (Dec 1991)
FAR 52.237-2 Protection of Government Buildings, Equipment and
Vegetation (Apr 1984)
FAR 52.242-1 Notice of Intent to Disallow Costs (Apr 1984)
FAR 52.242-13 Bankruptcy (Apr 1991)
FAR 52.243-2 Changes - Cost Reimbursement (AUG 1987) ALT IV (APR
1984)
FAR 52.245-1 Property Records (Apr 1984)
FAR 52.245-8 Liability for the Facilities (Apr 1984)
FAR 52.245-9 Use and Charges (Apr 1984)
FAR 52.245-11 Government Property (Facilities Use) (Apr. 1984)
FAR 52.246-10 Inspection of Facilities (Apr 1984)
FAR 52.249-11 Termination of Work (Consolidated Facilities or
Facilities Acquisition) (Apr 1984)
FAR 52.249-13 Failure to Perform (Apr 1984)
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FAR 52.249-14 Excusable Delays (Apr 1984)
FAR 52.217-9 Option to Extend the Term of the Contract (Mar 1989)
FAR 52.252-2 Clauses Incorporated by Reference (June 1988)
E. INCORPORATION OF WAGE DECISION. U. S. Department of Labor General Wage
Decision, No. PA 91-16, Modification 5, dated July 24, 1992, pages 1077-1078, is
hereby incorporated into this Agreement.
F. COUNTERPARTS. This Agreement may be signed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
FMC CORPORATION DEPARTMENT OF THE ARMY
PALADIN PRODUCTION DIVISION LETTERKENNY ARMY DEPOT
BY /s/ Peter F. Scott BY /s/ Col. Joseph W. Arbuckle
------------------------ -------------------------------
TITLE General Manager TITLE Commander
----------------------- -----------------------------
BY /s/ Ruth Massey
-------------------------------
TITLE Director of Contracting
-----------------------------
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SCHEDULE A -- GOVERNMENT FURNISHED PROPERTY
(AS SHOWN ON MAP BELOW)
PROPERTY APPROXIMATE SIZE
Building 56 90,180 Square Feet
Land Attendant to Building 56 2.44 Acres
Rail Siding at Building 56 620 Linear Feet
Land for Open Storage Space 4.0 Acres
[MAP]
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Building 56 (Franklin County, PA) Facilities Use Agreement - United States of America and FMC Corp.
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