B-167900, OCT. 2, 1969

B-167900: Oct 2, 1969

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LEASE MAY BE MODIFIED TO RETROACTIVELY DELETE SUCH REQUIREMENT SO THAT ACTUAL INTENT OF PARTIES WILL BE CORRECTLY EXPRESSED. AS RECORD ESTABLISHES THAT CLAUSE REQUIRING FULTON COUNTY TO FURNISH HEAT WAS INADVERTENTLY INCLUDED IN LEASE. SINCE REFORMATION MAY BE GRANTED WHERE EVIDENCE CLEARLY ESTABLISHES THAT ACTUAL INTENT OF PARTIES WAS MISSTATED IN PREPARATION OF AGREEMENT. THE ORIGINAL TERM OF THE LEASE WAS FROM MAY 1. YOU ADVISE THAT THE CLAUSE REQUIRING FULTON COUNTY TO FURNISH HEAT WAS INADVERTENTLY INCLUDED WHEN ARTICLE 6 WAS PREPARED. AS FOLLOWS: "THIS CONSTITUTES THIS AGENCY'S LETTER OF INTENT TO USE AND OCCUPY THE QUARTERS TO BE CONSTRUCTED ON FULTON COUNTY AIRPORT AS SOON AS THE SAME ARE COMPLETED SUBJECT TO A LEASE TO BE ON A YEAR-TO-YEAR BASIS WITH RENEWABLE OPTIONS FOR A TOTAL PERIOD OF TEN (10) YEARS.

B-167900, OCT. 2, 1969

LEASES--MODIFICATION--ACTUAL INTENT OF PARTIES WHERE LEASE CONTRACT ENTERED INTO MAY 24, 1961 BY FEDERAL AVIATION ADMINISTRATION AND FULTON COUNTY COMMISSIONERS, COVERING CERTAIN QUARTERS AND STORAGE FACILITIES CONSTRUCTED AT FULTON COUNTY AIRPORT, ATLANTA, GA; CONTAINED CLAUSE REQUIRING COUNTY TO FURNISH HEAR, CONTRARY TO INTENTION OF PARTIES, LEASE MAY BE MODIFIED TO RETROACTIVELY DELETE SUCH REQUIREMENT SO THAT ACTUAL INTENT OF PARTIES WILL BE CORRECTLY EXPRESSED, AS RECORD ESTABLISHES THAT CLAUSE REQUIRING FULTON COUNTY TO FURNISH HEAT WAS INADVERTENTLY INCLUDED IN LEASE, SINCE REFORMATION MAY BE GRANTED WHERE EVIDENCE CLEARLY ESTABLISHES THAT ACTUAL INTENT OF PARTIES WAS MISSTATED IN PREPARATION OF AGREEMENT. SEE 39 COMP. GEN. 660.

TO MR. BOLT:

WE REFER TO YOUR LETTER, WITH ENCLOSURES, DATED SEPTEMBER 12, 1969, REQUESTING OUR DECISION WHETHER LEASE CONTRACT NO. FAS0-147 (FORMERLY FA2- 2434), ENTERED INTO ON MAY 24, 1961, BY THE FEDERAL AVIATION ADMINISTRATION (FAA) AND THE FULTON COUNTY COMMISSIONERS OF ROADS AND REVENUES, FULTON COUNTY, GEORGIA, MAY BE REFORMED.

THE SUBJECT LEASE COVERS CERTAIN QUARTERS AND STORAGES FACILITIES CONSTRUCTED BY FULTON COUNTY AT FULTON COUNTY AIRPORT, ATLANTA, GEORGIA, FOR USE BY FAA'S FIELD WORKING PARTY HEADQUARTERS. THE ORIGINAL TERM OF THE LEASE WAS FROM MAY 1, 1961, THROUGH JUNE 30, 1961, AT A RENTAL RATE OF $1,093, WITH AN OPTION RESERVED TO THE FAA TO RENEW ON A YEAR-TO-YEAR BASIS THROUGH JUNE 30, 1971, AT A RENTAL RATE OF $3,480 PER YEAR. TO DATE THE FAA HAS CONTINUED TO EXERCISE ITS OPTION TO RENEW.

OF RELEVANCE TO OUR CONSIDERATION HERE, ARTICLE 6 OF THE LEASE PROVIDES AS FOLLOWS:

"6. THE LESSOR SHALL FURNISH TO THE GOVERNMENT, DURING THE OCCUPANCY OF SAID PREMISES, UNDER THE TERMS OF THIS LEASE, AS PART OF THE RENTAL CONSIDERATION, THE FOLLOWING: HEAT AND HEATING FACILITIES, INCLUDING HEATING FIXTURES; AIR CONDITIONING UNITS, INCLUDING COMPLETE MAINTENANCE AND REPAIR AS NECESSARY; ELECTRICAL FACILITIES, INCLUDING LIGHTING FIXTURES, ELECTRICAL OUTLETS AND BOTH 120 VOLT AND 240 VOLT; ORIGINAL BULBS, TUBES, STARTERS, BALLASTS AND REPLACEMENT AND MAINTENANCE THEREOF; ADEQUATE TOILET AND WASHROOM FACILITIES; AVAILABLE DRINKING WATER SUPPLY; AND ALL NECESSARY REPAIR, MAINTENANCE AND/OR REPLACEMENT OF THESE ENUMERATED FACILITIES AND THE BUILDINGS AND GROUNDS IN GENERAL.'

YOU ADVISE THAT THE CLAUSE REQUIRING FULTON COUNTY TO FURNISH HEAT WAS INADVERTENTLY INCLUDED WHEN ARTICLE 6 WAS PREPARED, CONTRARY TO THE INTENTION OF THE PARTIES. IN SUPPORT OF THIS POSITION, THE RECORD CONTAINS A COPY OF A LETTER DATED OCTOBER 27, 1960, FROM THE ACTING CHIEF, MATERIEL BRANCH, FACILITIES AND MATERIEL FIELD DIVISION NO. 2, TO THE FULTON COUNTY COMMISSIONERS, WHICH PROVIDES, IN RELEVANT PART, AS FOLLOWS: "THIS CONSTITUTES THIS AGENCY'S LETTER OF INTENT TO USE AND OCCUPY THE QUARTERS TO BE CONSTRUCTED ON FULTON COUNTY AIRPORT AS SOON AS THE SAME ARE COMPLETED SUBJECT TO A LEASE TO BE ON A YEAR-TO-YEAR BASIS WITH RENEWABLE OPTIONS FOR A TOTAL PERIOD OF TEN (10) YEARS. WE PROPOSE TO ENTER INTO A LEASE UNDER THE TERMS OF WHICH THIS AGENCY WOULD, OVER THE 10 -YEAR LIFE OF THE LEASE, REIMBURSE FULTON COUNTY FOR ACTUAL CONSTRUCTION COSTS OF BOTH PROJECTS EXCLUSIVE OF INTEREST. WE FURTHER AGREE TO REIMBURSE THE COUNTY BY SEPARATE CONTRACT FOR ANY UTILITIES SERVICES, INCLUDING JANITOR SERVICES, FURNISHED IN CONNECTION WITH THE SPACE. * *

IT FURTHER APPEARS THAT ON NOVEMBER 2, 1960, AT A MEETING OF THE FULTON COUNTY BOARD OF COMMISSIONERS, THE ACTING CHIEF'S LETTER WAS READ INTO THE MINUTES AND APPROVED BY THE BOARD. IN ADDITION, THE RECORD CONTAINS A COPY OF AN AGREEMENT DATED APRIL 20, 1961, BETWEEN THE FAA AND THE ATLANTA GAS LIGHT COMPANY, FOR FURNISHING NATURAL GAS TO THE FACILITY FOR HEATING PURPOSES. SIGNIFICANTLY, THIS AGREEMENT WAS EXECUTED ON BEHALF OF THE FAA BY THE CONTRACTING OFFICER WHO SUBSEQUENTLY EXECUTED THE LEASE AND PURSUANT THERETO THE FAA HAS BEEN BEARING THE HEATING EXPENSE. YOU FURTHER ADVISE THAT THE FULTON COUNTY BOARD OF COMMISSIONERS MAINTAINS THAT IT WAS NEVER ITS INTENTION TO FURNISH HEAT AND THAT THE BOARD DOES NOT, IN FACT, FURNISH HEAT TO ANY OF ITS OTHER LEASED PROPERTIES.

REFORMATION MAY BE GRANTED WHERE THE EVIDENCE CLEARLY ESTABLISHES THAT THE ACTUAL INTENT OF THE PARTIES WAS MISSTATED IN THE PREPARATION OF THE AGREEMENT. 76 C.J.S., REFORMATION OF INSTRUMENTS SECS. 28, 84 (1952); ACKERLIND V UNITED STATES, 240 U.S. 531 (1916); SEE, ALSO, 39 COMP. GEN. 660, 664.

IN OUR OPINION, THE FACTS AND CIRCUMSTANCES RELATED ABOVE ESTABLISH THAT THE CLAUSE REQUIREING FULTON COUNTY TO FURNISH HEAT WAS INADVERTENTLY INCLUDED IN THE LEASE. ACCORDINGLY, THE LEASE MAY BE MODIFIED TO RETROACTIVELY DELETE SUCH REQUIREMENT, SO THAT THE ACTUAL INTENT OF THE PARTIES WILL BE CORRECTLY EXPRESSED.