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HomeMy WebLinkAboutMcDowell Rackner & Gibson PC Memorandum 03-12-2010McDowell Rackner & G i b son PC Direct enh pha kirk@mced-law.com ws & 2 ee Memorandum To: Bradley Lake Project Management Committee From: Kirk H. Gibson Date: March 12, 2010 Re: FAA Camera Installation— Update The parties have ironed out all issues and the License granting the FAA the ability to place a camera on the Bradley Lake Hydro facility premises is ready for execution by AEA. The FAA conceded on all outstanding issues. The License The general terms of the License include: 1. The FAA is provided a 10 foot by 10 foot wide space located on the southeast corner of the earthen dock that is closest to the “Dock” building to place an aviation weather camera; 2. The FAA has reasonable rights of ingress and egress to make alteration, attach fixtures, etc., with 48 hours notice to AEA; 3. AEA shall provide electric service to the FAA site, provide on-site troubleshooting (with FAA oversight), and generally monitor the site; 4. FAA will conduct the installation, repair, maintenance and replacement (if necessary)as well as conduct remote monitoring of site equipment; The term shall end on March 15, 2027; and, 6. Either party may cancel the License for any reason by providing at least 60 days written notice. A copy of the License is attached for your review. The original has been forwarded to Bryan Carey. The Motion Attached is a Motion prepared for BPMC recommending AEA sign the License. Phone: 503.595.3922 » Fax: 503.595.3928 » www.mcd-law.com 520 SW Sixth Avenue, Suite 830 » Portland, Oregon 97204 c:\documents and settings\mclark\local settings\temporary internet files\content.outlook\80m1g2zy\bpmc memorandum 3 12 10.doc U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION LICENSE Date of Issue: March __, 2009 DTFAAL-09-L-00014 Geographical Location: Bradley Lake Hydroelectric Project Township 5 South, Ranges 9 & 10 West Seward Meridian, Alaska, THIS LICENSE is hereby entered into by the Alaska Energy Authority (“AEA”), whose address is 813 West Norther Lights Blvd., Anchorage, AK 99503, and the United States of America (“Government”). This License shall become effective when it is fully executed by both parties. The terms and provisions of this License, and the conditions herein, bind (i) the AEA and the AEA’s successors, and assigns, and (ii) the Government. WITNESSETH: The parties hereto, for the consideration hereinafter mentioned covenant and agree as follows: 1, PREMISES: The ABA hereby licenses to the Government the following described property, hereinafter referred to as the “Premises”, located at the Bradley Lake Power Station Dock: Coordinates: 59.77718 north, 150.97225 west A: 10 foot wide by 10 foot long by 10 foot high cube of space located on the southeast corner of the earthen dock that is closest to the “Dock” building for placing a Federal Aviation Administration (FAA) aviation weather camera (“Camera”), a free-standing, non-ground penetrating, 4-legged pedestal secured by sandbags, and a reasonable right-of-way between the “Dock” building and the camera pedestal for installation of a low voltage power/data cable, as shown on Exhibits A & B attached to this License and made part hereof. A. Together with a reasonable right-of-way for ingress to and egress from thé Premises for Government’s employees by routes reasonably determined by AEA. B. And so long as directly related to the operation of the Camera, the right to make alterations, attach fixtures, and erect additions, structures, or signs, in or upon the Premises hereby licensed, which alterations, fixtures, additions, structures or signs so placed in or upon, or attached to the Premises shall be and remain the property of the Government. 2. SPACE, POWER, AND ACCESS: A. SPACE & POWER AEA will provide: Reasonable space in the “Dock” building for necessary FAA aviation weather camera electronics equipment; i.e, switch, router, modem, and other related equipment as determined by AEA. Reasonable use of existing infrastructure, to the extent possible, for power to include a dedicated 15 amp breaker from the distribution panel, A continuous single phase 60Hz 120 volt AC power supply or 48 volt DC power supply whichever is available or agreed upon. Estimated typical power consumption is as follows: 110 watts per hour, 79.2 kW per month, 950.4 kW per annum Government will: Conduct all installation, repair, maintenance and replacement and be responsible for all costs and expenses of the Camera and related equipment. Conduct installation in accordance with accepted industry standards and applicable regulatory codes. B, TROUBLESHOOTING AEA will: Provide on-site troubleshooting with Government oversight. Typical request may include wiping camera lenses, cycling electrical power, and confirming equipment failure. Report any observed equipment malfunction, e.g., unusual noises, loose equipment, etc. Government will: Conduct remote monitoring of site equipment and services. In the event of a service outage or equipment malfunction, the Government may request the AEA to provide on-site troubleshooting with Government oversight. Conduct maintenance after reasonable troubleshooting options fail. Gs ACCESS AEA will: ¢ Provide the Government reasonable access (in scope and duration) to space as determined by AEA so as to instal! and maintain necessary equipment related to the Camera. Government will: * Coordinate all access requirements with the AEA in advance of a site visit. Government shall provide AEA with no less than 48 hours prior written notice of a proposed site visit. 3. TERM: To have and to hold, for an annual term commencing on March__, 2010 provided the term of this License shall be extended for an additional annual term that shall be self operative and that no further instrument shall be required to extend a subsequent annual term. Notwithstanding anything to the contrary contained in this section, (i) either party shall have the right to terminate this License by providing notice in accordance with Paragraph 6, and (ii) in all events this License shall terminate on March 15, 2027. 4, DAY-TO-DAY LICENSE EXTENSION: Unless otherwise agreed, the Government may continue to occupy the Premises for a period not to exceed 60 days after the end of the occupancy period covered by the agreed license term. 5. CONSIDERATION (NO COST) (AUG-02);, As consideration for this License, Government shal] provide continuous access to the web feed from the Camera, and except as provided above in this section, the Government shall not pay the AEA monetary consideration in the form of rental. The parties also agree that the rights extended to the Government herein are subject to the continuing satisfaction of the obligations of the Government in the establishment, operation and maintenance of the Camera and related facilities upon the Premises hereby licensed. 6. CANCELLATION (AUG-02): Either party may cancel this License for any reason by written notice specifying the effective - date of the termination. The cancellation notice shall be delivered by registered mail, return receipt requested and mailed at least 60 days before the effective termination date to allow the Government to remove equipment. a QUIET ENJOYMENT (OCT 96): ABA warrants that it has good and valid title to the premises, and rights of ingress and egress and will defend the Government’s use and enjoyment of said premises against third party claims. 8. NOTIFICATION OF CHANGE IN LAND TITLE (AUG-02): If the AEA sells or otherwise conveys to another party or parties fee title in land where the Premises or associated rights of way thereto, AEA shall notify the Government, in writing, of any such transfer or conveyance affecting the Premises within 30 calendar days after completion of the “change in property rights”. Concurrent with the written notification, the AEA shall provide the Government copies of the conveyance document or a recorded memorandum thefeof. 9. SUBORDINATION, NONDISTURBANCE AND ATTORNMENT (OCT-96): The Government agrees, in consideration of the warranties herein expressed, that this License is subject and subordinate to any and all recorded deeds of trust, mortgages, and other security instruments now or hereafter imposed upon the Premises, [t is mutually agreed that this subordination shal} be self operative and that no further instrument shall be required to effect said subordination. In the event of any sale of the Premises, or any portion thereof, or any such transfer of ownership, by foreclosure of the lien of any such security instrument, or deed provided in lieu of foreclosure, the Government will be deemed to have attorned to any purchaser, successor, assigns, or transferee. The succeeding owner will be deemed to have assumed all rights and obligations of the AEA under this License, establishing direct privity of estate and contract between the Government and said purchasers/transferees, with the same force, effect and relative priority in time and right as if the lease had initially been entered into between such purchasers or transferees and the Government; provided that such transferees shal] promptly provide, following such sale or transfer, appropriate documentation deemed necessary by the Real Estate Contracting Officer, and shall promptly execute any instrument, or other writings, as shall be deemed necessary to document the change in ownership. 10. NOTICES (OCT-96): All notices/correspondence shall be in writing, reference this License number, and be addressed as follows: TO AEA: Alaska Energy Authority 813 West Northem Lights Blvd. Anchorage, AK 99503 TO GOVERNMENT: Federal Aviation Administration Acquisition & Real Estate Branch 222 W. 7th, #14 Anchorage, Alaska 99513-7587 u. ANTI-KICKBACK (OCT-96): - The Anti-Kickback Act of 1986 (41 U.S.C, 51-58) (the Act), prohibits any person from (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 contract price charged by a prime Contractor to the United States Government or in the contract price charged by a subcontractor to a prime contractor or higher tier subcontractor. 12, COVENANT AGAINST CONTINGENT FEES (AUG-02): The AEA warrants that no person or agency has been employed or retained to solicit or obtain this License upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the Goverment shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover the full amount of the contingent fee. 13. OFFICIALS NOT TO BENEFIT (OCT-96): No member of or delegate to Congress, or resident commissioner, shall be admitted to any share or part of this contract, or to any benefit arising from it. However, this clause does not apply to this contract to the extent that this contract is made with a corporation for the corporation’s general benefit. 14. BRADLEY LAKE HYDROELECTRIC PROJECT OBLIGATIONS AEA enters this license as a matter incident to the Bradley Lake Hydroelectric Project, FERC license Project Number 8221. The duties and obligations assumed by AEA in this license are duties and obligations arising from operation of the Bradley Lake Hydroelectric Project, and shall be treated in every instance as project duties, obligations and expenses. SIGNATURE BLOCK (AUG 02): IN WITNESS WHEREOF, the parties hereto have signed their names: ALASKA ENERGY AUTHORITY: Date: (Official Title) UNJJED STATES OF AMERICA val Meacd. “,2QO inda E. Whitney, Real Estate Contdcting Officer a _ o o ° = ' Da ° 4 < < fe et a EXHIBIT B mane neat hy § McDowell Rackner & Gibson PC Direct po pe kirk@mca-law.com Memorandum To: Bradley Lake Project Management Committee From: Kirk H. Gibson Date: March 12, 2010 Re: | FERC Land Use Fees — Update There have been a couple of recent developments in the pending challenge to FERC’s new fee schedule. Intervention In late February, the United States Court of Appeals (DC Circuit) granted BPMC’s intervention into the matter where a number of other dam owners have been protesting FERC’s imposition of land use fee increases. As you will recall, BPMC and Seattle City Light were late to the group's original filing at FERC. Now we are together in the appeal of FERC’s ruling on their petition. The Court's next action will be to issue a briefing schedule. Fees for 2010 FERC has not formally issued its fee schedule for 2010. FERC issued its final rule setting forth the 2009 fee schedule in February of last year. The fee schedule was routinely issued in January in the years prior to 2009. For whatever reason, FERC seems even more delayed in 2010. While this delay could be attributable to any number of reasons, it could be that FERC will not update its fee schedule this year through a rulemaking. (It's rehearing order, in fact, suggested that a rulemaking wasn't necessary.) Another possible scenario could be that FERC will decide not to bill licensees for federal land use charges during the pendency of the appeal, and instead reserve authority to issue bills for these costs after the court issues its ruling. This is how FERC handled the "other federal agency" costs when the group appealed them to the D.C. Circuit a few years ago. Of course, there are other possible scenarios as well. Regardless of what action FERC takes for the 2010 billing cycle, it's possible that it could issue bills or notifications directly to hydro licensees without taking any formal, public action. For this reason, BPMC/AEA needs coordinate its efforts in the accounts receivable/billing departments. We will need to alert our DC attorney team if any communications received from FERC regarding federal land use fees (and supply them with the correspondence); and (2) not remit payment on any FERC federal land fees bill until the group Phone: 503.595.3922 » Fax: 503.595.3928 » www.mcd-law.com 520 SW Sixth Avenue, Suite 830 + Portland, Oregon 97204 c:\documents and settings\mclark\local settings\temporary internet files\content.outlook\80m1g2zy\bpmc-- ferc memorandum 3 12 10.doc March 12, 2010 decides its strategy for the 2010 bills. We will be informed immediately if FERC does issue a final rule or other public notification. Group Legal Fees The BPMC originally budgeted $30,000 for legal fees in this matter. To date, the BPMC has been billed a little over $12,000 for its participation in the various matters in which the group is involved.