B-155139, MAR. 9, 1965

B-155139: Mar 9, 1965

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SWICKLE: FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR $6. IT IS STATED THAT THE POST OFFICE WHICH WAS CONSTRUCTED BY YOU ON LAND OPTIONED TO THE POST OFFICE DEPARTMENT IS SUPPLIED BY WELL WATER AND A SEPTIC TANK FOR SEWAGE AND THAT THE DEPARTMENT REQUESTED YOU TO PUT IN THREE TOILETS. IT IS STATED. OR 200 TO 300 PERCENT MORE THAN THAT FOR WHICH THE FACILITIES WERE DESIGNED. IT IS STATED FURTHER THAT FROM THE BEGINNING OF THE LEASE YOU HAVE SPENT $1. 026.16 ON ITEMS ATTRIBUTABLE TO OVERUSAGE AND THAT FOR THE SIX MONTH PERIOD PRIOR TO YOUR LETTER YOU HAVE EXPENDED ANOTHER $4. YOU HAVE ADDED AN ALLOWANCE OF TEN PERCENT FOR MANAGEMENT THUS RESULTING IN EXPENDITURES AGGREGATING $6. 960 AND IT WAS AWARDED THE CONTRACT.

B-155139, MAR. 9, 1965

TO DR. EDWARD F. SWICKLE:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR $6,583.78 AS ADDITIONAL COSTS FOR "OVERUSE" OF WATER AND SEWERAGE FACILITIES AND SERVICES FURNISHED THE SOUTHFIELD, MICHIGAN, POST OFFICE, UNDER LEASE DATED OCTOBER 5, 1959.

IN YOUR LETTER OF MARCH 7, 1964, IT IS STATED THAT THE POST OFFICE WHICH WAS CONSTRUCTED BY YOU ON LAND OPTIONED TO THE POST OFFICE DEPARTMENT IS SUPPLIED BY WELL WATER AND A SEPTIC TANK FOR SEWAGE AND THAT THE DEPARTMENT REQUESTED YOU TO PUT IN THREE TOILETS, TWO WASH BASINS, AND TWO URINALS AS THE CAPACITY OF THE BUILDING WOULD BE 37 TO 56 EMPLOYEES, OR AN AVERAGE OF 46 PEOPLE. IT IS STATED, HOWEVER, THAT FOR A NUMBER OF YEARS THE NUMBER OF REGULAR EMPLOYEES HAS ABOUT DOUBLED TO 80 PER DAY AND TO ABOUT 130 DAILY AROUND HOLIDAYS, OR 200 TO 300 PERCENT MORE THAN THAT FOR WHICH THE FACILITIES WERE DESIGNED. IT IS STATED FURTHER THAT FROM THE BEGINNING OF THE LEASE YOU HAVE SPENT $1,026.16 ON ITEMS ATTRIBUTABLE TO OVERUSAGE AND THAT FOR THE SIX MONTH PERIOD PRIOR TO YOUR LETTER YOU HAVE EXPENDED ANOTHER $4,909.10. YOU HAVE ADDED AN ALLOWANCE OF TEN PERCENT FOR MANAGEMENT THUS RESULTING IN EXPENDITURES AGGREGATING $6,583.78, AS ITEMIZED IN YOUR LETTER OF MARCH 7, 1964.

UNDER AUTHORITY OF 39 U.S.C. 794 (F) (NOW 39 U.S.C. 2102), THE DEPARTMENT PREPARED PRELIMINARY DRAWINGS FOR A BUILDING AND ADVERTISED FOR BIDS IN THE FORM OF AGREEMENTS TO LEASE FOR A BUILDING TO BE ERECTED ON AN OPTIONED SITE IN ACCORDANCE WITH SUCH DRAWINGS AND "THE CONSTRUCTION REQUIREMENTS FOR LEASED POST OFFICE FACILITIES, * * * AS SPECIFICALLY ENUMERATED IN ALL ADDENDA ATTACHED AS RIDERS TO THIS AGREEMENT.' UNDER DATE OF NOVEMBER 26, 1958, YOU AND YOUR THEN PARTNER SUBMITTED A BID IN THE NAME OF ED-RON INVESTMENT COMPANY OFFERING TO CONSTRUCT A BUILDING ON THE SITE AND TO LEASE SAME FOR A BASIC TEN YEAR TERM AT $12,300 PER ANNUM WITH TWO FIVE-YEAR RENEWAL OPTIONS AT $14,760 AND $16,176 PER ANNUM, RESPECTIVELY. IN THE FOLLOWING NEGOTIATIONS ED-RON REDUCED THE ANNUAL RENTAL FOR THE ORIGINAL AND RENEWAL TERMS TO $11,960 AND IT WAS AWARDED THE CONTRACT. PARAGRAPH 12 OF THE ACCEPTED BID (AGREEMENT TO LEASE), INCORPORATED THEREIN POD FORM NO. 1400A (ADDENDUM TO AGREEMENT TO LEASE), HEREAFTER REFERRED TO AS THE ADDENDUM. THE ADDENDUM STATED THAT THE PREMISES SHOULD BE PREPARED AND EQUIPPED TO COMPLY FULLY WITH THE DETAILED AND GENERAL REQUIREMENTS STATED IN THE LATEST ISSUE OF FACILITIES HANDBOOK S-2, HEREAFTER REFERRED TO AS THE HANDBOOK, AND PROVIDED FOR ADDITIONAL SPECIFIC FEATURES AS PART OF THE AGREEMENT INCLUDING AMONG OTHERS THE FOLLOWING:

TABLE

WATER LOCATION CLOSETS LAVATORIES URINALS -------- ------- ---------- --- ---- MEN'S TOILET ROOM 3

2 2 WOMEN'S TOILET ROOM 1 1 POSTMASTER'S TOILET 1

1

BEFORE STARTING CONSTRUCTION ED-RON SUBMITTED COMPLETE CONSTRUCTION PLANS AND SPECIFICATIONS FOR APPROVAL BY THE CHIEF, ENGINEERING BRANCH, OF THE DEPARTMENT'S CHICAGO REGIONAL OFFICE. UNDER DATE OF OCTOBER 5, 1959, A FORMAL LEASE WAS ENTERED INTO WITH A NEW PARTNERSHIP (SWICKLE - WITTER - BLAINE COMPANY). PARAGRAPH 6 OF THE LEASE OBLIGATED THE LESSOR TO FURNISH AND PAY FOR ALL WATER AND SEWERAGE SERVICE DURING THE CONTINUANCE OF THE LEASE. PARAGRAPH 7 OBLIGATED THE LESSOR TO MAINTAIN THE LEASED PREMISES INCLUDING THE BUILDING AND ALL EQUIPMENT, FIXTURES AND APPURTENANCES AS THEREIN PROVIDED. THE AGREEMENT TO LEASE, AND THE ADDENDUM THERETO WERE INCORPORATED INTO AND MADE A PART OF THE LEASE BY PARAGRAPH 14 THEREOF.

YOUR CLAIM FOR "OVERUSE" IS, IN EFFECT, BASED ON THE PREMISES THAT YOU WERE OBLIGATED TO DESIGN AND CONSTRUCT A BUILDING FOR A FIXED NUMBER OF EMPLOYEES AND THAT SINCE THE NUMBER OF EMPLOYEES OCCUPYING THE BUILDING HAS ABOUT "DOUBLED" YOU HAVE THEREBY INCURRED ADDITIONAL EXPENSES IN EXCESS OF YOUR OBLIGATION TO FURNISH WATER AND SEWERAGE SERVICE. YOU STATE THAT THE HANDBOOK CONSTITUTED A SPECIFICATION WHICH YOU HAD TO FOLLOW BECAUSE PARAGRAPH 14 OF THE LEASE INCORPORATED THEREIN THE AGREEMENT TO LEASE AND THE ADDENDUM THERETO WHICH REQUIRED THAT THE PREMISES SHOULD BE PREPARED AND EQUIPPED TO COMPLY FULLY WITH THE DETAILED AND GENERAL REQUIREMENTS OF THE LATEST HANDBOOK. TO EMPHASIZE THAT THE HANDBOOK CONTAINS SPECIFICATIONS WHICH YOU WERE COMPELLED TO FOLLOW, YOU CITED ONE SPECIFICATION EACH FROM THE FIRST 10 PAGES OF THE HANDBOOK, INCLUDING PARAGRAPH C2, CHAPTER I, PAGE 1 THEREOF, UNDER THE HEADING "SPECIAL REQUIREMENTS" WHICH PROVIDED THAT:

"ALL CONSTRUCTION HEATING, PLUMBING, VENTILATION, ELECTRICAL WORK, STORM AND SANITARY DRAINAGE SHALL CONFORM TO LOCAL CODES AND FIRE AND SAFETY REQUIREMENTS. IN THE ABSENCE OF SUCH CODES, NATIONAL CODES SHALL APPLY. FOR EXISTING BUILDINGS, NO CONDITION CONSIDERED A HEALTH OR SAFETY HAZARD TO EMPLOYEES, SHALL BE ALLOWED TO EXIST. RELATED REQUIREMENTS CONTAINED HEREIN SHALL BE CONSIDERED MINIMUM.'

PARAGRAPH ONE, SECTION A, PART V OF THE HANDBOOK, WHICH YOU CONTEND LIMITS YOUR OBLIGATION, PROVIDES AS FOLLOWS:

"FIXTURE REQUIREMENTS

"1. SEPARATE TOILET ROOMS, BASED ON THE NUMBER OF PERSONS TO OCCUPY THE PROPOSED BUILDING, SHALL BE PROVIDED FOR BOTH MEN AND WOMEN. THE ROOMS SHALL BE EQUIPPED WITH FIXTURES IN ACCORDANCE WITH THE TABLE BELOW, EXCEPT THAT WHERE LESS THAN A TOTAL OF FIVE PERSONS ARE TO BE EMPLOYED, THE WOMEN'S TOILET ROOM MAY BE OMITTED AND A SINGLE TOILET ROOM, WITHOUT A URINAL, WILL BE CONSIDERED ADEQUATE. HAND DRYERS WILL BE FURNISHED AND INSTALLED BY THE DEPARTMENT. THE LESSOR SHALL FURNISH 20 AMPERE OUTLETS FOR THE HAND DRYERS AS NOTED IN PART IV.

CHART

TOILET ROOM FIXTURES

MEN WOMEN NUMBER

OF WATER LAVATORIES HAND WATER LAVATORIES HAND PERSONS CLOSETS URINALS

DRYERS CLOSETS DRYERS 1 TO 10 1 1 1 1 1 11 TO 24 2 1 1 2 2 1 25 TO 36 2

2 2 1 3 2 37 TO 56 3 2 2 4 3 57 TO 75 4 2 2 5 4 2 76 TO 96 4

3 3 6 4 97 TO 119 5 3 3 7 5

"2. A PRIVATE TOILET ROOM, CONTAINING ONE WATER CLOSET AND ONE LAVATORY IS REQUIRED IN BUILDINGS WHERE A PRIVATE OFFICE IS PROVIDED FOR THE POSTMASTER OR SUPERINTENDENT OF A BRANCH OR STATION. PRIVATE TOILETS WILL NOT USUALLY BE REQUIRED IN BUILDINGS HAVING LESS THAN 3,200 SQUARE FEET GROSS FLOOR AREA, UNLESS SPECIFICALLY DIRECTED.'

NOWHERE IN THE AGREEMENT TO LEASE, THE ADDENDA THERETO, OR THE LEASE ITSELF IS THERE ANY MENTION OF THE NUMBER OF EMPLOYEES WHO WOULD OCCUPY THE LEASED BUILDING AND CONTRARY TO YOUR CONTENTION THE DEPARTMENT HAS REPORTED THAT IT HAD NO UNDERSTANDING WITH YOU OR THE OTHER INTERESTED PARTIES THAT THE BUILDING WOULD BE OCCUPIED BY ANY GIVEN NUMBER OF EMPLOYEES. THE DEPARTMENT HAS STATED THAT IF YOUR COMPANY MADE ANY ASSUMPTIONS TO THAT EFFECT AND PREDICTED THE WATER AND SEWAGE NEEDS THEREON IT DID SO AT ITS OWN PERIL.

THE HANDBOOK, AS INDICATED ON PAGE III OF THE FOREWORD, IS NOT A BUILDING SPECIFICATION AND IS NOT INTENDED TO BE USED AS SUCH BY BIDDERS OR THEIR ARCHITECTS. AS STATED THEREIN:

"* * * IT IS DESIGNED AS A GUIDE FOR THE DEVELOPMENT OF REQUIREMENTS FOR INDIVIDUAL PROJECTS. IT IS THE RESPONSIBILITY OF THE POSTAL OFFICIAL CONCERNED TO ESTABLISH SPECIFIC REQUIREMENTS FOR A PARTICULAR BUILDING GIVING DUE CONSIDERATION TO LOCATION, SIZE, USE AND OTHER PERTINENT CTORS.'

IN THIS INSTANCE, THE POSTAL OFFICIALS CONCERNED, ACTING UNDER THE GENERAL REQUIREMENTS OF THE HANDBOOK DID AS SET FORTH, IN THE ADDENDUM, ESTABLISH SPECIFIC REQUIREMENTS FOR PLUMBING FIXTURES TO BE INSTALLED IN THE FACILITY THEREBY REPLACING THE GENERAL REQUIREMENTS OF THE HANDBOOK REGARDING PLUMBING FIXTURES. THEREFORE, THERE IS NO RELATION, FROM A CONTRACTUAL VIEWPOINT, BETWEEN THE FIXTURES REQUIRED TO BE INSTALLED BY THE LESSOR AS SET FORTH IN THE ADDENDUM BASED ON DETERMINATION OF NEED BY THE POSTAL OFFICIALS CONCERNED AND THE CHART ON PAGE 17 OF THE HANDBOOK. EVEN IF SUCH CHART COULD BE REGARDED AS CONTROLLING YOUR CONTRACTUAL OBLIGATIONS UNDER THE SPECIFIC PROVISIONS OF PARAGRAPH C2, PART I, PAGE 1 OF THE HANDBOOK, ALL PLUMBING AND SANITARY DRAINAGE WERE REQUIRED TO CONFORM TO LOCAL CODES AND, AS STATED IN THE SAME PARAGRAPH, THE RELATED REQUIREMENTS CONTAINED THEREIN WERE TO BE CONSIDERED AS "MINIMUM.' THIS REGARD, IT IS NOTED THAT IN THE APPLICATION FOR PERMIT TO INSTALL OR CONSTRUCT SEWAGE DISPOSAL SYSTEM FOR THE INVOLVED BUILDING FILED WITH THE OAKLAND COUNTY DEPARTMENT OF HEALTH, PERMISSION WAS REQUESTED FOR THE INSTALLATION OF 1,000 GALLON SEPTIC TANK AND IT WAS STATED THAT THE BUILDING WOULD SERVE 20 PERSONS. WE ARE INFORMED THAT UNDER THE OAKLAND DEPARTMENT OF HEALTH REGULATIONS IF THE BUILDING TO BE SERVICED BY THE SEPTIC TANK IS BEING CONSTRUCTED FOR OCCUPANCY BY FEWER THAN 50 PERSONS, THEN A 1,000 GALLON TANK MAY BE INSTALLED AND THAT IF THE BUILDING IS BEING CONSTRUCTED FOR OCCUPANCY BY MORE THAN 51 PERSONS ON A 24-HOUR BASIS THEN A 1,500 GALLON SEPTIC TANK OR LARGER IS REQUIRED. WE ARE FURTHER INFORMED THAT CAPACITY OF 20 GALLONS PER PERSONS DAILY IS REQUIRED ON A 24 -HOUR BASIS AND THAT AN APPLICATION FOR A PERMIT WILL ONLY BE APPROVED IF THE INSTALLATION OF THE SEWAGE SYSTEM MEETS THESE REQUIREMENTS. FROM THE FOREGOING, IT IS CLEAR THAT EVEN IF THE CHART ON PAGE 17 OF THE HANDBOOK COULD BE REGARDED AS CONTROLLING YOUR OBLIGATION WITH RESPECT TO FURNISHING WATER AND SEWERAGE SERVICES, FOR THE NUMBER OF EMPLOYEES COMMENSURATE WITH YOUR OBLIGATION WOULD NOT BE A CAPACITY OF 37 TO 56 OR "AN AVERAGE OF 46 PEOPLE" AS YOU CONTEND BUT, ON THE CONTRARY, BASED ON THE NUMBER OF FIXTURES SPECIFIED AND REQUIRED BY THE ADDENDUM (4 WATER CLOSETS, 3 LAVATORIES, AND 2 URINALS), EXCLUSIVE OF THE TOILET FIXTURES REQUIRED FOR THE POSTMASTER, YOUR OBLIGATION WOULD BE AT LEAST 57 TO 75 EMPLOYEES. THUS, IT IS CLEARLY INDICATED THAT THE SEPTIC TANK, TOGETHER WITH THE DRAINFIELD INSTALLED BY YOU, WAS NOT ONLY INADEQUATE TO MEET THE REQUIREMENTS OF THE OAKLAND COUNTY DEPARTMENT OF HEALTH BUT BASED ON THE COUNTY'S DEPARTMENT OF HEALTH REQUIREMENTS IT WAS INADEQUATE TO MEET YOUR OBLIGATIONS UNDER PARAGRAPH 6 OF THE LEASE AS IMPLEMENTED BY THE AGREEMENT TO LEASE AND THE ADDENDUM THERETO.

WHILE YOU CONTEND THAT THE GOVERNMENT HAD COMPLETE CONTROL OF THE CONSTRUCTION OF THE BUILDING THE DEPARTMENT HAS POINTED OUT THAT THE AGREEMENT TO LEASE OBLIGATED ED-RON TO CONSTRUCT AND LEASE TO THE GOVERNMENT A POST OFFICE BUILDING IN ACCORDANCE WITH PRELIMINARY DRAWINGS, THE CONSTRUCTION REQUIREMENTS FOR LEASED POST OFFICE FACILITIES, AND THE ADDENDA ATTACHED TO THE AGREEMENT. IN OTHER WORDS, THE "GENERAL REQUIREMENTS" AND SPECIFICATIONS WERE AGREED UPON AND ED RON BECAME OBLIGATED TO PRODUCE WORKING DRAWINGS AND COMPLETE SPECIFICATIONS AND TO PROVIDE A FACILITY CONFORMING THEREWITH.

WITH RESPECT TO THE NUMBER OF EMPLOYEES OCCUPYING THE BUILDING, AND THEIR TOURS OF DUTY, THE DEPARTMENT, UNDER DATE OF DECEMBER 28, 1964, REPORTED THAT:

"AT PRESENT, THERE ARE 6 SUPERVISORS AND 35 CLERKS WORKING IN THIS POST OFFICE, AND THERE ARE 55 CARRIERS WHO WORK FROM IT. THE 6 SUPERVISORS AND 35 CLERKS ARE DIVIDED INTO THREE TOURS AS FOLLOWS:

A. 18 SUPERVISORS AND CLERKS WORK FROM 6 A.M. TO 3 P.M.

B. 13 SUPERVISORS AND CLERKS WORK FROM 3 P.M. TO 12 MIDNIGHT.

C. 10 SUPERVISORS AND CLERKS WORK FROM 12 MIDNIGHT TO 9 A.M.

"FIFTY-FIVE CARRIERS WORK OUT OF THE OFFICE AND THEY REPORT FOR WORK ON A STAGGERED SCHEDULE STARTING AT 6:00 A.M. THEY LEAVE THE OFFICE ON A STAGGERED SCHEDULE BETWEEN 8:30 AND 9:30 A.M. AND RETURN TO THE OFFICE FROM THEIR ROUTE ALSO ON STAGGERED SCHEDULES BETWEEN 1:30 P.M. AND 3:30 P.M. OF COURSE, ALL 55 CARRIERS WOULD NOT BE PRESENT EVERY DAY AND NEITHER WOULD ALL OF THE SUPERVISORS AND CLERKS BE PRESENT ON EVERY SHIFT. BOTH GROUPS WORK A 5-DAY, 40-HOUR WEEK AND IT APPEARS FROM THE FOREGOING SCHEDULES THAT THEY ARE ALLOWED ONE HOUR FOR LUNCH.

"WE HAVE ATTEMPTED TO APPROXIMATE AN ANALYSIS OF THE NUMBER OF EMPLOYEES WHO MIGHT CONCEIVABLY BE IN THE BUILDING DURING EACH HALF HOUR OF THE DAY. FOR THAT PURPOSE, WE HAVE ASSUMED THAT 40 OF THE 55 CARRIERS AND ALL SUPERVISORS AND CLERKS ARE ON DUTY DURING ONE DAY. THAT WOULD MEAN THAT DURING A TWO HOUR PERIOD, FROM 6:30 A.M. TO 8:30 A.M., THERE WOULD BE 76 EMPLOYEES IN THE BUILDING AND DURING THE PERIOD 2:30 P.M. TO 3:00 P.M., 66 EMPLOYEES WOULD BE IN THE BUILDING. DURING THE REMAINING 21 1/2 HOURS THERE WOULD BE 52 OR FEWER EMPLOYEES PRESENT. THE LOW OCCUPANCY PERIODS WOULD BE FROM 3:30 P.M. TO 6:00 A.M. WHEN 13 EMPLOYEES WOULD BE PRESENT, AND 9:30 A.M. TO 1:30 P.M. WHEN 18 WOULD BE PRESENT. THE AVERAGE NUMBER OF EMPLOYEES PRESENT OVER THE 24 HOUR PERIOD WOULD BE LESS THAN 25.' HAS BEEN REPORTED FURTHER THAT DURING THE 1962 CHRISTMAS SEASON NO TEMPORARY EMPLOYEES WERE EMPLOYED AND THAT DURING THE 1963 SEASON 13 TEMPORARY EMPLOYEES WERE EMPLOYED.

WITH REFERENCE TO THOSE ITEMS OF YOUR CLAIM RELATING TO "OVERUSE" OF THE WATER FACILITIES AND THE INSTALLATION OF THREE WELLS (TWO SHALLOW WELLS AND ONE 91-FOOT WELL) THE DEPARTMENT HAS REPORTED THAT ON JUNE 18, 1963, THE POSTMASTER ADVISED YOU THAT THE WATER WAS NOT POTABLE; THAT ON AUGUST 8, 1963, THE POSTMASTER ADVISED YOU THAT THE WATER SUPPLY WAS INSUFFICIENT, RUNNING A RUSTY COLOR, HAD A PECULIAR ODOR AND WAS NOT POTABLE AND THAT ON OCTOBER 17, 1963, THE POSTMASTER ADVISED YOU THAT YOU WOULD HAVE TO PROVIDE SUITABLE WATER FOR THE POST OFFICE. IN THE LATE SUMMER AND EARLY FALL OF 1963, THE WELL KEPT GOING DRY AND THE POSTMASTER ARRANGED FOR THE USE OF A 4,000 GALLON TANK TO STORE WATER AT THE REAR OF THE POST OFFICE FOR SANITARY PURPOSES. DRINKING WATER WAS SUPPLIED BY OTHER MEANS AND FROM OCTOBER 1963 THROUGH FEBRUARY 1964, WATER WAS SUPPLIED IN A MAKE-SHIFT FASHION.

THE DEPARTMENT HAS REPORTED FURTHER THAT SOME TIME AFTER JANUARY 1, 1964, YOU INSTALLED A 91-FOOT DEEP WELL IN A LOCATION SELECTED BY YOU. WHILE THIS WELL APPARENTLY SUPPLIED SUFFICIENT AND SATISFACTORY WATER THE OAKLAND COUNTY DEPARTMENT OF HEALTH NOTIFIED THE POSTMASTER THAT AN INSPECTION OF THE WELL DISCLOSED THAT IT WAS NOT PROPERLY LOCATED SINCE IT WAS WITHIN 35 FEET OF THE TILE FIELD OF THE RESIDENCE TO THE NORTH; THAT THE POST OFFICE WAS CONSIDERED A PUBLIC BUILDING; THAT STATE REGULATIONS REQUIRE THAT SUCH BUILDINGS HAVE WELLS WHICH ARE ISOLATED FROM ANY SOURCE OF POLLUTION BY AT LEAST 75 FEET; AND THAT CITY WATER WOULD SOON BE AVAILABLE AT WHICH TIME THE WELL WOULD HAVE TO BE ABANDONED AND THE POST OFFICE WOULD HAVE TO BE CONNECTED WITH THE CITY WATER SYSTEM.

IT, OF COURSE, IS UNFORTUNATE THAT YOU DID NOT LOCATE THE 91-FOOT WELL IN ACCORDANCE WITH THE APPLICABLE REGULATIONS. THE LOCATION OF THAT WELL, HOWEVER, WAS DETERMINED BY YOU AND THE SAME IS TRUE WITH RESPECT TO THE LOCATION AND THE DEPTH OF THE TWO SHALLOW WELLS. ANY EXPENSES INCURRED BY YOUR COMPANY INCIDENT TO THE INSTALLATION AND MAINTENANCE OF THE WELLS ARE CLEARLY WITHIN YOUR OBLIGATION UNDER PARAGRAPH 6 OF THE LEASE WHEREIN THE "LESSOR AGREES TO FURNISH AND PAY FOR ALL WATER; AND FOR SEWERAGE SERVICE DURING THE CONTINUANCE OF THE LEASE.'

AS TO THE SPECIFIC ITEMS OF YOUR CLAIM THERE IS NO EXPLANATION AS TO THE ITEM FOR $1,026.16, EXCEPT THAT IT IS INCIDENT TO "OVERUSE"WHICH FOR THE FOREGOING REASONS HAS NOT BEEN ESTABLISHED AS AN OBLIGATION OF THE GOVERNMENT.

AS TO THE THREE ITEMS FOR $200, $200 AND 1,100 RESPECTIVELY, PERTAINING TO INSTALLATION OF THE THREE WELLS, AS HERETOFORE INDICATED WE FIND NO LEGAL BASIS FOR REIMBURSEMENT OF ANY OF THESE ITEMS SINCE THEY ARE INCIDENT TO YOUR OBLIGATION UNDER PARAGRAPH 6 OF THE LEASE TO FURNISH AND PAY FOR ALL WATER.

THE FIFTH ITEM FOR $994 HAS BEEN REPORTED AS A GENERAL ASSESSMENT AGAINST BENEFITTING ADJACENT LANDOWNERS FOR INSTALLATION OF WATER MAINS BY THE CITY. THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THIS ITEM UNDER THE TERMS OF THE LEASE. THE SAME IS TRUE WITH RESPECT TO THE ITEM FOR $270 REPRESENTING A FIXED CHARGE FOR INDUSTRIAL SITE CONNECTIONS TO THE WATER SYSTEM AND THE ITEM FOR $600 REPRESENTING THE LESSOR'S COST FOR PROVIDING WATER LINES FROM THE WATER MAIN ACROSS THE LESSOR'S LAND TO THE FACILITY.

AS TO THE ITEM FOR $60 ( 9/12/63 (, THE DEPARTMENT HAS REPORTED THAT THIS PERTAINS TO MAINTENANCE FOR FIXING OLD WELLS DURING THE PERIOD WHEN THEY RAN DRY AND THAT IT HAS NOT BEEN ESTABLISHED THAT THE MAINTENANCE WAS DUE TO ANY NEGLIGENCE ON THE PART OF THE POSTAL EMPLOYEES. THEREFORE, THE ITEM IS NOT REIMBURSABLE SINCE IT FALLS WITHIN YOUR MAINTENANCE OBLIGATION UNDER PARAGRAPH 7 OF THE LEASE.

THE DEPARTMENT HAS REPORTED THAT THE ITEMS FOR $19.66, $31.48, $103.98, $122.10, AND $80 PAID ABSOPURE ARE FOR DRINKING WATER FURNISHED WHEN THE SHALLOW WELLS RAN DRY OR WHEN THE WATER WAS NOT POTABLE. SINCE UNDER THE PROVISIONS OF PARAGRAPH 6 OF THE LEASE YOU WERE OBLIGATED TO FURNISH AND PAY FOR ALL WATER THERE IS NO LEGAL BASIS FOR REIMBURSEMENT FOR THESE ITEMS.

ALL OF THE OTHER ITEMS EXCEPT THE ITEMS FOR $315, CLEANING OVER LOADED SEPTIC TANK, AND $593.52 FOR MANAGEMENT PERTAIN TO OR ARE INCIDENTAL TO YOUR OBLIGATION UNDER PARAGRAPH 6 OF THE LEASE TO FURNISH AND PAY FOR ALL WATER AND SEWERAGE AND THEREFORE, FOR REASONS STATED WE FIND NO LEGAL BASIS FOR REIMBURSING YOU FOR SUCH EXPENDITURES.

AS TO ITEM FOR $315 FOR CLEANING "OVERLOADED" SEPTIC TANK THE BILL IN THE AMOUNT OF $50 RENDERED TO YOU ON FEBRUARY 29, 1964, BY W. L. BOENING FOR CLEANING THE SEPTIC TANK INDICATES NEGLIGENCE ON THEPART OF THE EMPLOYEES OF THE POST OFFICE ARISING FROM THE DEPOSITING OF PAPER TOWELS AND KOTEX IN THE TOILETS. HOWEVER, IT IS NOT ESTABLISHED WHAT PROPORTION OF THE AMOUNT CLAIMED IS ATTRIBUTABLE TO SUCH NEGLIGENCE AND WHAT PROPORTION IS ATTRIBUTABLE TO YOUR OBLIGATIONS TO FURNISH SEWERAGE SERVICE AND TO MAINTAIN THE LEASED PREMISES. THEREFORE, ON THE PRESENT RECORD THE ENTIRE AMOUNT MUST BE DISALLOWED.

THE ITEM FOR $593.52 FOR MANAGEMENT REPRESENTS TEN PERCENT OF THE AGGREGATE OF ALL OTHER ITEMS OF YOUR CLAIM INCLUDING THE CITY WATER ASSESSMENT TAX, THE CITY TAP-IN AND METER CHARGE, THE DELIVERY OF WATER BY OTHER COMPANIES AND THE CLEANING OF THE SEPTIC TANK BY OTHER COMPANIES. SINCE AS INDICATED ABOVE THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE OTHER ITEMS IT NECESSARILY FOLLOWS THAT THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THIS ITEM.

SUMMARIZING, THERE APPEARS FOR APPLICATION IN THE PRESENT CLAIM THE PRINCIPLES APPLIED BY THE UNITED STATES COURT OF CLAIMS IN THE CASES OF UNITED POST OFFICE CORPORATION V. UNITED STATES, 79 CT.CL. 173 AND UNITED POST OFFICES CORPORATION V. UNITED STATES, 80 ID. 785. IN THOSE TWO CASES, THE COURT FOUND CONTINUING OBLIGATIONS ON THE LESSOR OF POSTAL FACILITIES TO FURNISH AN ADEQUATE LIGHTING SYSTEM IN THE FIRST CASE AND SATISFACTORY PLUMBING AND NECESSARY TOILET FACILITIES IN THE SECOND CASE. SUCH FINDING WAS MADE EVEN THOUGH IN BOTH SITUATIONS THE LESSOR HAD FURNISHED FACILITIES WHICH COMPLIED WITH THE PLANS AND SPECIFICATIONS WHICH HAD BEEN APPROVED BY THE POST OFFICE DEPARTMENT.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 20, 1964, DISALLOWING YOUR CLAIM IS SUSTAINED.