HomeMy WebLinkAbout1999-01-11 99-57 ORDERCOUNCIL ACTION
Item No. 99-57
Date ganuary 11 1999
Item/Subject: Authorizing Renewal of Bangor Raceway Lease
Agreement
Responsible Department: Legal
Commentary:
The City currently has a lease of the Bangor Raceway with Bangor
Historic Track, Inc. The Lease calls for annual renewals, upon the
request of the Tenant. The tenant has requested a renewal of the
lease, under the existing terms and conditions.
This Order approves the renewal
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Introduced For CONSENT AGENDA
Passage
First Reading
Referral Page 1 of 2
UP
99-5]
Mammal to Cotmcdor
CITY OF BANGOR
(TITLE.) (Orba, _. Author";Lng.Execution of_Leaae Agreement with _.
--Bangear Historie--Track, Inc. d/b/a Bangor Raceway 11 1
By dw City Coundl of aty ofBamsT:
ORDERED,
TEAT
the City Manager is hereby authorized, on behalf of
the City of Bangor, to execute a lease agreement with Bangor
Historic Track, Inc., doing business as Bangor Raceway. A copy of
said lease agreement is attached hereto. The final lease agreement
shall be substantiallyin the form as attached, the final form to
be approved by the City Solicitor's office.
(TITLE.) Wri
99-5)
Auigned to Councilor Palmer lamnnry 11, 1999
CITY OF BANGOR
Authorizing Renewal of Bangor Raceway Lease
Agreement
By the Eery CoawB 6f dw My ofBam Pn
ORDERED,
THAT
WHEREAS, the terms Of the current Bangor Raceway Lease
Agreement provides for an annual renewal at the
request of the Tenant; and
WHEREAS, the Tenant has given a Notice of Renewal to the City;
and
WHEREAS, the Tenant is not requesting any changes to the terms
Of the Bangor RaCeway Lease Agreement,
NOW, THEREFORE, by the City Council of the City of Bangor, be it
ORDERED,
THAT the Bangor City Council hereby authorizes renewal of the
Bangor Raceway Lease Agreement for one year under the same terms
and conditions as the current. Bangor Raceway Agreement.
IN CITY COUNCIL
January ll, 1999
Motion to Amend by Substitution
Made and Seconded
Motion Passed
Passed as iaended by Substitution
CITY 4Em
99-5]
ORDER
Title, Autboriaing Heueval of Bangor
Raceway Lease Agreement
......................................
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BANGOR RACEWAY LEASE AGREEMENT
The CITY OF BANGOR, a municipal corporation
organised and existing under and by virtue of
the laws of the State of Maine, and located at
Bangor, Penobscot County, Maine (hereinafter
referred to as the "CITY")
and
BANGOR HISTORIC TRACK, INC., a Maine corporation,
doing business as Bangor Raceway (hereinafter
referred t0 as "TENANT")
W I T N E E E E T H:
WHEREAS, the CITY is the owner of a harness racing facility
located in the City of Bangor at the CITY'S Bass Park Complex; and
WHEREAS, the TENANT wishes to lease the CITY's harness
racing facility for the purpose of conducting an extended harness
racing meet for the calendar pear-3998-racing-seasen-end
subsequent -seasons; years 1999 through 2001 racing seasons.
NOW, THEREFORE, the parties hereby agree as follows:
1. Premises. The CITY, for and in consideration of the
rents to be paid and the obligations to be Performed by the TENANT
s hereinafter Provided, does hereby demise and lease unto the
TENANT and TENANT does hereby take and hire, upon and subject to
the terms and conditions hereinafter stated, in their present
physical condition, and for the periods hereinafter stated, the
following described premises and facilities located at the CITY's
Bass Park Complex, as further designated in the sketch attached
hereto as "Exhibit 1":
Area
THIS AGREEMENT,
executed in duplicate,
this
day
of
MaxeX7-1998 January.
1999, by and between:
Barns
March 1 through October 15
The CITY OF BANGOR, a municipal corporation
organised and existing under and by virtue of
the laws of the State of Maine, and located at
Bangor, Penobscot County, Maine (hereinafter
referred to as the "CITY")
and
BANGOR HISTORIC TRACK, INC., a Maine corporation,
doing business as Bangor Raceway (hereinafter
referred t0 as "TENANT")
W I T N E E E E T H:
WHEREAS, the CITY is the owner of a harness racing facility
located in the City of Bangor at the CITY'S Bass Park Complex; and
WHEREAS, the TENANT wishes to lease the CITY's harness
racing facility for the purpose of conducting an extended harness
racing meet for the calendar pear-3998-racing-seasen-end
subsequent -seasons; years 1999 through 2001 racing seasons.
NOW, THEREFORE, the parties hereby agree as follows:
1. Premises. The CITY, for and in consideration of the
rents to be paid and the obligations to be Performed by the TENANT
s hereinafter Provided, does hereby demise and lease unto the
TENANT and TENANT does hereby take and hire, upon and subject to
the terms and conditions hereinafter stated, in their present
physical condition, and for the periods hereinafter stated, the
following described premises and facilities located at the CITY's
Bass Park Complex, as further designated in the sketch attached
hereto as "Exhibit 1":
Area
Dates
Track
March 1 through October 15,
but excluding July 27 through
August 9
Barns
March 1 through October 15
and a reasonable period
before March 1 for
preparation purposes
-2 -
Trailer Park April 1 through July 28 and
August it through August 23
Grandstand March 1 through July 26
The
track, trailer park, and grandstand, as well as parking
areas, are
specifically recognized as joint use areas as follows:
a.
Parking Areas. Parking areas will be available for
e by harness racing customers as well as customers
of other events held at the Bass Park Complex on a
first-come, first-served basis.
b.
Trailer Park. The trailer park areas will be available
for use by individuals associated with horse shows held
in August or with harness racing on a priority basis
during the Trailer Park dates indicated above. Any
unused space during the Trailer Park dates will be
made available for short-term use by others with the
revenue from these users to go to the CITY.
c.
Track and Grandstand. The track and grandstand
areas shall be available for use for other events
prior to the date of commencement of the harness
racing meet. The track and grandstand shall also be
available during the race meet on non -racing days and
after racing on any racing day where racing is normally
scheduled to end by 6:00 P.M. Such uses shall be
permitted provided that the track shall not be closed
a than three days i any week from
to horses for more
April 1st to the date of commencement of the harness
racing meet and no more than two days in any week during
the harness racing meet.
2. Term. TO HAVE AND TO HOLD the demised premises unto the
TENANT for an annual term commencing January lsfil$@$ and ending
Beeember-33sl-ef-each-pear-!h}a-agreemenE-}a-}n-£exec October 15,
1999. PROVIDED, however, that TENANT'S occupancy and use of any of
the facilities described above shall not begin prior to or extend
beyond the periods stated in Section 1 above. Phis -Agreement -map
De-renewed-m+nna3}p-after-lhe-inil3a}-term-foe-fhree-f3;-add€Eiefla3
TEN
one-pear-terms-renewpose-of annualneon-mama}-agxeememl-ef-E£PY-and
not require
For the purpose of l Inco r walla;, the CITY shall
not require additional rental ed elsewhere
and above all amounts
derived from the formulas stated elsewhere within this Agreement.
3. Rene. Provided that TENANT is Lot in default Of any
material provision hereunder, TWkST shall have
theoption
extend this Lease for an additional buried of two (2)-YE2
TENANT's right to renewal shall be exercised by giving notice of
renewal to the CITYin writing no later than October 1st preceding
eaeh the renewal tem. Fa}}awing-xeee}pl-ef-each-eeE3ee-by-E£TY
end-wilh}nlh3xfp-frm3B;-days-fhereafter;-E£PY-end-PENAHP-sha33-meet
€ar-fhe-pnxpese-a€-diaenssing-renewa3-ef-fh3s-Agxeementr--Prov}dud
PENANP-g}vea-aneh-lLme3p-ee!}ee-af-renewa3-fe-the-E£PY—Ehe-paxt}ea
Sha}}-agree-ne-}aEex-than-Ehe-Beeember-}StA-preeed3ng-aep-renewa3
per}ed-le-the-texma-nnd-eend}f}oea-a€-anp-sneh-pexied-erfhta
Agreement -sha33-be-deemed-1arm}naEed:--TEN.VIP-ahn33-naE-be-ent}t3ed
!e-renew-ih}e-Agreement,-}f-PENANP;-eI-lhe
i}me-a€-TENTNeof- aewa4-aeele;-sha3l-be-sn-deENANT-c£-sap
prey}s}en-hereof: As a condition of renewal, TENANT shall a3sa
expend €ram-itstaws-£nada a minimum of he o igB al Ando ce
Year for facility improvements during the original the two year terms term of this Agreement and obtained
by0 EN during the two v
improve Private donations obtained by TENANT for facility e
improvements shall be appliedtowards
TENANT financialobligation
herein € facility improvements. The CITY must approve any
facility improvements.
4. Existing Facilities/Additions and Changes. No building
or facility or any physical changes to any existing buildings or
facilities may be constructed without the express written consent
of the CITY. Such consent shall not be unreasonably withheld.
However, the CITY may withhold its consent to any additions or
changes which, in the sole opinion of the CITY, would have a
negative impact on the use of the leased facilities for other
events and purposes, or on the structural integrity of any building
or structure. All additions and changes shall be made in
accordance with the appropriate building and development codes, and
TENANT shall be responsible for all necessary permits.
It is understood and agreed that the CITY shall remain the
legal owner of all buildings, structures, improvements, facilities
and installations currently upon the premises or which may be
erected upon the premises during the term of this Agreement or any
extensions or renewals thereof. Equipment owned and installed by
TENANT shall become the property of the CITY where such equipment
becomes attached to and a fixed element of any building, structure,
or facility.
5. Maintenance and Improvements. TENANT shall, at Its sole
cost, provide all necessary maintenance and repair of the leased
facilities, including the maintenance and repair necessary to keep
the facilities in compliance with applicable fire and life safety
Codes. TENANT shall maintain the facilities in accordance with
first class standards comparable to other facilities in Maine and
New England. The CITY and its designated representatives shall
have a right of access to inspect premises and facilities and to
order corrective measures. Formal inspections of the demised
premises shall be conducted by the CITY on or about March let,
during the week prior to the Bangor State Fair, during the week
after the Bangor State Fair, during the week after September
racing, if applicable, and during the first week of November of
each year this Agreement is in force. The purpose of these
inspections is to insure that the facilities are maintained in the
mr better condition as existed at the start of the Agreement.
In the event TENANT fails to make repairs or to keep the facility
in a safe and sanitary condition, CITY shall have the right to
enter upon the facility for purposes of making repairs and to
charge the cost of such repairs to TENANT. Failure to adequately
maintain the facility will be a basis for default and termination
of this Agreement and forfeiture of performance bond.
It is anticipated that the CITY will participate in the Cost
of betterments or improvements made to shared -use facilities where
such work benefits events or users of the facilities other thn
harness racing. TENANT shall forward requests for such improve-
ments or betterments to the CITY on an annual basis, on or about
March 1st of each year, for consideration in the CITY's annual
-y -
budget process. These requests may include requests for pro-
portional reimbursements for betterments already performed by
TENANT. The cost of such improvements shall be shared an a 50/50
basis or such other basis as may be separately negotiated subject
to City Council approval of the expenditure. The CITY may, at its
own option, elect to proceed with its own betterments or improve-
ments to shared -use facilities where Such work shall not have a
negative impact on harness racing. The CITY shall inform TENANT i
advance of planned improvements and shall coordinate their schedule
with TENANT in order to minimize their impact on harness racing.
TENANT may, at its own option, elect to proceed with its own
betterments or improvements to shared -use facilities where such
work has been previously approved by the CITY for construction but
not for shared -funding.
6. Approved Uses. The primary use of the leased facilities
will be for live harness racing and directly related activities and
promotions including simulcasting. Other horse related events such
as horse shows, sales, and demonstrations are permitted. TENANT
shall have the exclusive use of the leased premises for these uses
during the term of this lease agreement. Where such events occur
on a stand-alone basis on the leased facilities and during TENANT'S
occupancy period, net revenues shall be apportioned between the
CITY and TENANT on a 75%/25% basis with the larger portion going to
the entity which identifies and brings the events to the facility.
The TENANT may request that he be allowed to use the
facility for other licensed Maine Harness Racing Commission
services, and if so requested, a separate agreement, subject to
final approval of the Hanger City Council, may be negotiated by the
parties.
7. Utilities. All utility expenses including water,
electrical, telephone, sewer and waste disposal, required to
operate the leased facility, shall be paid by the TENANT. TENANT
shall pay CITY for all City -provided utilities at the same rates
the CITY charges similar customers. The CITY and TENANT shall
agree to a utility metering and/or cost allocation plan which will
be implemented prior to March 1, 199E 1.99$. The purpose of this
plan is to provide for a cost-effective plan for either separately
metering the facilities to be used for racing or appropriately
allocating utility costs based on actual use for racing and other
events.
8. Taxes. Licenses and Fees. TENANT shall be responsible
for any and all taxes and all required licenses and fees to operate
the Facility.
9. Indemnification and Insurance. The TENANT shall
indemnify, defend, and hold harmless the CITY from and against all
claims and actions, and all expenses incidental to such claims or
actions, based upon or arising out of damage to property o
injuries to persons or other tortious acts caused or contributed to
by the TENANT or anyone acting under its direction or control or in
its behalf in the course of the TENANT'S activities under this
Agreement, provided the TENANT'S aforesaid indemnity and hold
harmless agreement shall not be applicable to any liability based
upon the sole negligence of the CITY.
The TENANT hereby expressly agrees that it will defend,
indemnify and hold the City o£ Bangor harmless from any and all
claims made or asserted by T_NANT's agents, servants or employees
arising Out of TENANT'S activities under this Agreement. For this
TENANT herebyexpressly Waives n all 1 1t
have d M W rk ' COmpenSatjOn Act in regard[ h
claims made O e ted
by TENANT'S aagnLa. servants1
The indemnification provided under this paragraph shall extend to
and include any and all costs incurred by the CITY to answer,
investigate, defend and settie all such claims, including but not
limited to the CITY'S costs for attorney fees, expert and other
witness tees, the cost Of investigators, and payment in full Of any
and all judgments rendered Sc favor of TENANT'S agents, servant=_ or
employees against the CITY 'n regard to claims made or asserted by
such agents, servants, or employees.
a. In Connection w._- the employment of its employees.
TENANT shall pay all applicable social security,
unemployment, workers' compensation, or other employment
taxes or contribuz ions of insurance and shall CO ..Ply
with all federal and state laws and regulations r=_lat_ng
t0 employment generally and to wages. social s rarity.
unemployment ante and workers' compensation i
particular. TENANT scall indemnify and hold harmless
the CITY from all costs, expenses, claims or damages
resulting from any failure of TENANT to Comply will
these requirements.
b. TENANT shall proccre and maintain tomnrehensive general
liability and autcmoblle liability insurance on behalf
of the CITY against any damage, loss or liability or
claims alleged to have arisen from the use Or occupancy
by TENANT of the raceway and related facilities. Wim`.
respect to ilte r fired insurance, CITY shall be name1
as an addiconalninsured; be provided with a waiver c'_
subrogation in favor of the CITY; and shall be provide,. -
with thirty (30) days notice of cancellation or material
change; and s e provided, through the Office Or m:_
City solicitor. :lith certificates Of insurance
evidencing the Save required insurance. The cost of
such insurance s.`:3_l he paid directly by TENANT. The
CITY reserves the richt to increase insurance levels at
the time of any contract extension or option renewal.
The amounts of s__h coverage shall be as follows:
Tape Amount
1. Workers' Compensation $lM combined single
Statutory Employers
Liability
2. Comprehensive Public Sim combined single
limit
Liability to include with additional umbrella
but not be limited to policy for not less
than
the following: $2M
a) premises/operations
b) independent contractor
c) personal injury coverage
d) product/completed operations
e) contractual liability
3. Comprehensive Automobile S1M combined single
limit
Liability coverage to
include coverage for:
a) owned/renzed automobiles
b) non -owned automobiles
c) hired cars
.. Standard Form Fire or Replacement Value
.All Risk insurance
Policy
56ould TENANT desire, CITY will entertain a request that
Fire or All Risk Insurance be provided by the CITY and shall be
paid, on an agreed oro -rata basis, by TENANT for those periods in
which TENANT occupies the facilities. In the event of loss or
damage to any portion of rhe leased premises due to f -ire or ct'.ar
Casualty occurring during T=YANT's use Or occupancy. or occurrinz
after TENANT'S use or occupancy as a result of the negligence or
TENANT or TENANT's agents, servants, contractors, or employees.
TENANT shall reimhurse to e CITY any portion of the CITY's ccs-
of replacing or repairing the particular facilities Concerned tr..
is not reimbursed by applicable fire or all risk insurance.
Each insurance policy procured by TENANT shall affirant've_y
state that it will not be i -validated because the insured w—
its riyais of recovery acaenst any party prior to the occurrence o'_
a loss.
10. _ ees and Independent Contractors. TENANT and '_--
employees shall operate as as independent contractor and neither
TENANT nor TENPNT's employees shall be deemed in any manner to '--
agents or employees of the CITY. The CITY shall not be responsi^_le
for TENANT'S financial obligations including, but not limited to,
salaries and wages earned by employees, purse distribution and
prizes won during the course of the racing meet, or amounts due
independent concraccors, horsemen. vendors and patrons.
11. Co ' ,ance witri Laws. TENANT will comply with all
federal, state and local statutes, rules, ordinances and
regulations as they relate to the operation Of the raceway and
related facilities.
12. Non -Discrimination. In conducting activities under
this Agreement, TENANT shall not discriminate on the basis of race,
color, sex, creed, religion, ancestry, national origin, age Or
disability, or in any other manner prohibited by law, and shall not
fail or refuse to hire an employee or accord adverse. or unequal
treatment to any person or employee with respect to application,
hiring, training, apprenticeship, tenure, promotion, upgrading,
compensation, layoff, discharge or any other term or condition of
employment in any manner Prohibited by law.
13. Catering. TENANT shall have the exclusive right to
sell alcoholic beverages on the leased premises during TENANT'S
occupancy thereof and shall :^ave the right to operate or let all
food and drink concessions at the raceway where the provision of
such services is for a racing event authorized under this
Agreement CITY reserves the right to provide these services ar.A
concessions for any event sponsored or permitted by the CITY.
TENANT may exercise these rights directly or through an agreement
with a reputable area concessionaire acceptable to the CITY.
Should a concessionaire be selected, the Concessionaire must enter
into an agreement with the CITY for the use of any Concession
equipment or supplies owned by the CITY and for the nrovi=-ion by
the concessionaire of insurance acceptable to the CITY tine
guarantee Of necessary operating licenses, including a license -or
sale of beer. The CITY reserves the right to require a reasona,�e
payment for such equipment and supplies.
14. Sjj,C1haSe a, Ciw - mrv. TENANT shall purchase a
maintenance materials and supplies on hand and owned by the CITY at
the time TENANT assumes operation of the raceway. ?rice will be
based on actual CITY costs.
15. Performance Bond. TENANT shall provide the CITY W_z
an acceptable corporate surety bond in the penal sum of 530.000
payable to the CITY, or such other security as is acceptable to t._
City Solicitor, for the faithful performance of all duties and
obligations imposed Upon TENANT by and under the terms of this
Agreement. The CITY rs � es the right to require an increase
the amount of this bonda' ' time of any extension or option
renewal of this Agreement Sack increase shall be limited to no
more than 258 of the amount in effect at the time. Bond or other
acceptable security may be provided within ten (10) days of award
of extended racing meet license to TENANT by the Maine Harness
Racing commission. In addition to serving as a performance bond.
this amount, if provided in an appropriate form acceptable t0 the
City Solicitor, shall also f'fill the requirement outlined in
Section 22 below `--or a DamaceDeposit A.ecentable security may
include 2n 4rrevocable letter of credit or a Cash deposit Sa_d
performance bond shall remain in force, at a minimum, until
November 30th Of each year this Agreement is in force.
16. 4e=nor=ibil'tias of Tenant. Consistent with the tars
of this Agreement, TENANT scall exercise sound business Judgment
-E -
cooperate with the CITY, and be open to the CITY's recommendations
and advice. The CITY's and TENANT's specific responsibilities
shall include, though not necessarily be limited to, the following:
a,
NeichbQrhood, Public Relations and Protection.
TENANT
is mindful of the impact of Facility activities
on the
immediate neighborhood and surrounding area. TENANT
agrees to adhere to the following guidelines:
i. No live race shall start after 11:00 P.M. unless,
due to an unforeseen emergency such as, but not limited
to, loss of power, loss of computer support to run the
mutual area, facility accident, or loss of ambulance
support, races are delayed. In such circumstances.
TENANT shall make every effort to accelerate post times
and to finish operating at a reasonable hour, in no case
later than 12 midnight.
ii. TENANT. in Conducting TEXANT's activities under
this Agreement, _=hall take necessary steps to prevent
generation of excessive noise. For this purpose.
excessive noise shall mean noise of a volume, pitch or
intensity likely to disturb the peace of ordinari
occupants of residential properties surrounding the Sas
Park Complex.
iii. To the best of its ability, TENANT shall enscre
that horse trailers and Facility traffic will comply
with all applicable CITY rules and regulations.
b.
Pest Control. TENANT shall be responsible for all
necessary pest control services. TENANT and the CITY
may mutually agree to a proration of annual pest control
services.
c.
Snow Removal. The CITY shall be responsible for snow
removal service=_.
d.
Trash Removal. 4ENPNT shall be responsible for all
waste and trash removal services, including removal and
disposal of manure.
e.
Licenses and Permits. TENANT shall obtain and maintain
all licenses and permits neces=sary for TENANT to ma.*.age
and operate the Facility. Failure to meintai.^, the
necessary licenses and permits to operate and manage t.` -e
Facility shall constitute a bieaci of this Agreement.
f.
Fixed Asset I Ctorv. TENANT shall take custody but
not ownershic, of its fixed assets of the Facility. T e
CITY shall provide TENANT with a full and complete
written inventory of structures. facilities, and
improvements within the leased area. TENANT shall
accept this fixed asset inventory and may request a
physical walk through and verification with a designated
representative of the CITY. Proper notations of any
discrepancies shall be made and initialed by both
parties on the written inventory. During their period
of use. TENANT shall assume all maintenance and repair
costs on such equipment.
g_ prase Cuttins. The CITY will be responsible for all
grass cutting throughout the property.
17, Security. TENANT will insure that adequate security is
available for all events held at the Facility. TENANT shall
develop, in cooperation with the Chief Of Police of the Bangor
Police Department, a security plan for the Facility. This plan
shall outline the level and type of security t0 be provided during
racing. Uniformed police of'_icers shall be in attendance at all
harness racing events. The number of uniformed police to be
oresent shall be established in the joint security plan.
In addition, the Chief of Police Of the Bangor Police
Department may, at his discretion, require TENANT to provide a
higher level of uniformed p0.!Ce t0 be present in Order t0 preserve
order and protect lives and property. In the event of a dispute
between the TENANT and the Cief of Police regarding the number 0 -
uniformed police officers required, the dispute shall be submitted
to the City Manager of the C_ty of Bangor whose determinac.on
shall be final.
Uniformed police security may be supplemented by using local
contract security, TENANT's own security employees, or other
sources of security service. The Chief Of Police of the City of
Bangor shall retain the authority to direct TENANT to remove from
this responsibility any individual engaged in providing security
services for any reason. Its required security plans shall be
developed and approved by T-VANT and the CITY within sixty (60)
days Of the date of agreemen=. TENANT shall say the CITY for use
of uniformed police officers at the same rate established by the
CITY for such services provided to other parties. During any
renewal period of this Agreeaent, TENANT and the Chief of Police
shall meet to review
w the previous racing season's security plan and
shall agree On any modlficaCcna to said security plan necessary
for the renewal period's race meet. Said meeting and agreement on
necessary modifications shall take slate no later than thirty (3u)
days prior to the start of said race meet.
19. Fire Protection. TENANT shall abide by all life safe.y
and fire codes established by the State Of Maine and the CITY as
interpreted and enforced by the Code Enforcement Of`_?cer of the
City of Bangor or the State =ire Marshal's Office.
19. Bass Park Will. The property upon which Bass Parkis
.
located was donated to the CITY under pertain Conditions Outlined
in the Will of J.P. Bass. Tie will essentially requires that the
ME
Bass Park property be maintained and used for public recreation
purposes. CITY will provide TENANT with a copy of the Bass Will.
TENANT agrees to abide by the terms and conditions of the Will in
its operation of the facilities.
20. Payment to the City. TENANT shall pay the CITY a base
fee of Thirty -Five Thousand Dollars ($35,000.00) for the right to
lease and operate the premises. In addition to the base fee,
TENANT shall pay to the CITY an additional fee amount to be
determined as follows: If the a= of the average daily handles
both on -track and at Maine Off Track Betting facilities wagered on
TENANT'S races is greater than Fifty -Five Thousand Dollars
($55,000.00), the percentage amount by which said amount exceeds
$55,000.00 shall be multiplied by the base fee to determine the
amount of the additional fee. CITY shall invoice TENANT the full
amount of the base fee on March 1;-1998 let of each Year of this
Agreement or renewal thereof. TENANT shall pay the fee(s) in seven
(7) equal monthly installments beginning March 1st. Any additional
fees due will be calculated at the end of the 1998 Racing Season
(July 28, 1998) and be payable by September 1, 1998 with the final
rental installment. At the end of any month races are conducted on
or at the leased premises, TENANT shall provide t0 CITY Copies Of
reports required to be filed with the State of Maine reflecting all
wagers placed or made at the leased premises, as well as all wagers
made or placed at Maine Off Track Betting facilities on races
conducted at the leased premises.
The annual payment to the City may be renegotiated by the
parties in the event TENANT has applied to the Maine Harness Racing
Commission for fifteen (15) days of racing or less for that
particular year. Provided, however, that the rental shall be based
upon a per them for use of the racetrack and grandstand only on
actual race dates.
21. Other Payments. In addition to any and all payments
required elsewhere in this Agreement, TENANT shall expend twenty-
five percent (258) of any payment made to TENANT under Title 8,
Maine Revised Statutes, Section 275(0)(3), sometimes referred to an
the "commercial meet stipend", on facility improvements during the
calendar year in which such payment, if any, is received.
22. Damage Deposit. within two (2) weeks following the
CITY 'a annual pre -race inspection of the premises (ie., the
inspection which is to occur on or about March 1st of each year
this Agreement is in force), TENANT shall deposit with the CITY the
sum 0f Ten Thousand Dollars ($10,000.00) to be held by the CITY as
a deposit against the CITY's cost of repairing any unrepaired
damage to the premises caused by the TENANT, its employees,
horsemen, vendors, harness racing patrons, or others using the
premises during the harness racing season. Following the
conclusion of live racing and prior to the start of the Bangor
State Fair, the CITY shall also conduct inspections of the premises
as provided in paragraph 5 above for the purpose of identifying any
unrepaired damage to the premises occasioned by TENANT 'a use
-11 -
thereof. The CITY shall provide TENANT with a list of all such
items of unrepaired damage, which shall be repaired by TENANT prior
to the start of the Bangor State Fair, or within thirty (30) days
of the CITY's notice to TENANT, as the CITY may direct. If not
repaired by TENANT within such period, the CITY may repair or cause
such items to be repaired, and may apply TENANT'S damage deposit as
necessary for that purpose. As a condition of the annual renewal
of this License, TENANT shall deposit with the CITY funds
sufficient to restore the damage deposit amount to Ten Thousand
Dollars ($10,000.00). Upon termination or final expiration of this
Lease, and following repair of all unrepaired damage to the
premises occasioned by TENANT'S use thereof, the unexpended balance
of DEFIANT 'a damage deposit shall be refunded to the TENANT. Said
damage deposit, whether included as part of the Performance Bond
(Paragraph 15 above) or otherwise shall remain in force, at a
until November 30th of each year this agreement is in
force
23. Advertising. TENANT shall have the right to solicit
and display advertising within and around the grandstand and on the
raceway shadow fence. Such advertising must comply with the
Advertising Policy of the Bangor City Council as currently adopted
or as
it may, from time to time, be amended. Any revenues derived
from such advertising shall be prorated between TENANT and CITY
based on the percentage of time such advertising shall be displayed
during and outside TENANT'S period of occupancy of the facilities
where such advertising is present. Any advertising which will be
displayed beyond TENANT's period of occupancy must be specifically
approved by the CITY. Any advertising to be provided in exchange
for facility improvements must be approved by CITY, both as to
content of advertising and overall payments or facility
improvements to be provided.
24. Event Sian. CITY shall provide TENANT with the right
to place an event sign adjacent to the Bass Park property at a
location mutually acceptable to CITY and TENANT. In addition, CITY
shall make space available on the Bass Park lighted marquee sign
located on Main Street whenever possible.
25. Destruction frrto Premises, In
the event that the leased premises or
o any part of the leased
premises shall be destroyed by fire, explosion or other casualty.
or a need arises for substantial capital improvements so that all
or a substantial portion of the leased premises cannot be operated,
and the CITY or TENANT fails to rebuild, repair and reopen the same
for business within sixty (60) days after the happening of said
event, then either party shall have the right (but no obligation)
to terminate this Agreement.
26. Termination and Default If TENANT fails to pay or
deposit sums due within seven (7) days notice of such failure, o
fails to comply with its other obligations under the terms of this
Agreement, and the TENANT fails to cure such failure within thirty
-12-
(30) days after written notice. which notice shall specify in
sufficient detail the specific circumstances so as to give the
TENANT adequate notice and the opportunity to cure the same, the
c1TY may upon expiration of such period terminate this Agreement.
27. No joint V Nothing contained herein shall be
deemed or construed by the parties, nor by any third party, as
creating the relationship of principal and agent or of partnership
or joint venture between the nettles, it being understood and
agreed that neither them shod of computation of rent nor any other
provision nor any other acts of the parties shall be deemed to
create any relationship between the parties other than that of
landlord and tenant.
28. Non -Waiver. failure of either party at any time on
enforce a provision of this Agreement shall in no way constitute_ a
waiver of the provision, nor in any way affect the validity of this
Agreement or any part hereof, or the right of such party thereof' to
enforce each and every provision hereof.
29. Amendment.parties may amend this Agreement only
by w-rtten agreement exeC.oSd =y the parties.
30. No Assicnmeea. TEHAN' shall not assign. sublet, sel_.
transfer, or otherwise dispose of its interest in this Agreement
without the prior written approve! of the CiTy. This A.goeemeet
shall be binding upon and in to the benefit of the parties
hereto, their successors and permitted assigns.
31. Zav�rabi; i v. -v provision of this Agreement declared
invalid by a court of cor„petemt jurisdiction shall not invalidate
the remaining provisions of this Agreement.
32. Governing Law. This Agreement shall be governed
exclusively by the provisions ;-ereof and by the laws_ of the State
of Maine. as the same may from cJme to t1 -.e exist. No spit she --
be brought by either party to enforce any of the terms or
provisions of this Agre=ement, unless brought in the 3enob=_cot
County, Maine District or S -_zips Court.
33. Notices. All notices required by this Agreement she' --
be in writing and shall be =_ fficiently given and served upon t e
other party if sent by registered or certified United States
postage prepaid, and addressed as follows:
If sent to CITY: Michael Dyer, General Manager
Bass ?ark Complex
100 Dutton Street
Bangor. M= 04401
With a copy to: Erik M. Stumpfel, City Solicitor
City of Bangor
73 Har:cW Street
Bangor. me 04401
-13 -
or at Such other place as the CITY may, from time t0 time,
designate by notice to TENANT.
If sent to TENANT: Bangor Raceway
P.O. Box 614
Bangor, ME 04402-0614
With a copy to: Thame8-P:-Shahan;-dr>7-Eaq-
185-Harley-Stree£
Bangorr-ME-64491
E Andrew Hamilton. Esg.
Baton Peabody Bradford & Veague
Box 1z0o
Bangor, ME 04402-1210
or at such other place as TENANT may, from time to time, designate
to the CITY.
34. Integration. This Agreement and all appendices and
amendments hereto embody the entire agreement of the parties
relating to the duties and obligations required hereunder. There
are no promises, terms, conditions or obligations other than those
contained herein, and this Agreement shall supersede all previous
communications, representations or agreements, either oral or
written, between the parties hereto.
IN WITNESS WHEREOF, the parties have respectively executed
or caused this Agreement to be executed the day and year first
written above.
WITNESS: CITY OF BANGOR
(By)
Edward A. Barrett
Its City Manager
WITNESS: BANGOR HISTORIC TRACK, INC.
(BY)
Fred Nichols
Its Raceway Manager
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BASS PARK, HOME OF THE BANGOR STATE FAIR
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BANGOR RACEWAY LEASE AGREEMENT
The CITY OF BANGOR, a municipal Corporation
organized and existing under and by virtue of
the laws of the State of Maine, and located at
Bangor, Penobscot County, Maine (hereinafter
referred to as the "CITY")
and
BANGOR HISTORIC TRACK, INC., a Maine corporation,
doing business as Bangor Raceway (hereinafter
referred to as "TENANT")
W I T N E S S E T H:
WHEREAS, the CITY is the owner of a harness racing facility
located in the City of Bangor at the CITY's Bass Park Complex; and
WHEREAS, the TENANT wishes to lease the CITY's harness
racing facility for the purpose of conducting an extended harness
racing meet for the calendar years 1999 through 2801 racing
seasons.
NOW, THEREFORE, the parties hereby agree as follows
1. Premises. The CITY, for and in consideration of the
rents to be paid and the obligations to be performed by the TENANT
as hereinafter provided, does hereby demise and lease unto the
TENANT and TENANT does hereby take and hire, upon and subject to
the terms and conditions hereinafter stated, in their present
physical condition, and for the periods hereinafter stated, the
following described premises and facilities located at the CITY's
Bass Park Complex, as further designated in the sketch attached
hereto as "Exhibit 111:
Area
THIS
AGREEMENT, executed in
duplicate,
this
day
of
January,
1999, by and between:
August 9
The CITY OF BANGOR, a municipal Corporation
organized and existing under and by virtue of
the laws of the State of Maine, and located at
Bangor, Penobscot County, Maine (hereinafter
referred to as the "CITY")
and
BANGOR HISTORIC TRACK, INC., a Maine corporation,
doing business as Bangor Raceway (hereinafter
referred to as "TENANT")
W I T N E S S E T H:
WHEREAS, the CITY is the owner of a harness racing facility
located in the City of Bangor at the CITY's Bass Park Complex; and
WHEREAS, the TENANT wishes to lease the CITY's harness
racing facility for the purpose of conducting an extended harness
racing meet for the calendar years 1999 through 2801 racing
seasons.
NOW, THEREFORE, the parties hereby agree as follows
1. Premises. The CITY, for and in consideration of the
rents to be paid and the obligations to be performed by the TENANT
as hereinafter provided, does hereby demise and lease unto the
TENANT and TENANT does hereby take and hire, upon and subject to
the terms and conditions hereinafter stated, in their present
physical condition, and for the periods hereinafter stated, the
following described premises and facilities located at the CITY's
Bass Park Complex, as further designated in the sketch attached
hereto as "Exhibit 111:
Area
gates
Track
March 1 through October
15,
but excluding July 27 through
August 9
Barns
March 1 through October
15
and a reasonable period
before March 1 for
preparation purposes
Trailer Park
April 1 through July 28
and
August 11 through August
23
Grandstand March 1 through July 26
The
track, trailer park, and grandstand, as well as parking
areas, are
specifically recognized as joint use areas as follows:
a.
Parking Areas. Parking areas will be available for
use by harness racing customers as well as Customers
of other events held at the Bass Park Complex on a
first-come, first-served basis.
L.
Trailer Park. The trailer park areas will be available
for use by individuals associated with horse shows held
in August or with harness racing on a priority basis
during the Trailer Park dates indicated above. My
unused space during the Trailer Park dates will be
made available for short-term use by others with the
revenue from these users to go to the CITY.
C.
Track and Grandstand. The track and grandstand
areas shall be available for use for other events
prior to the date of commencement of the harness
racing meet. The track and grandstand shall also be
available during the race meet on non -racing days and
after racing on any racing day where racing is normally
scheduled to end by 6:00 p.m. Such uses shall be
permitted provided that the track shall not be closed
to horses for more than three days in any week from
April 1st to the date Of Commencement of the harness
racing meet and no more than two days in any week during
the harness racing meet.
2. Term. TO HAVE AND TO HOLD the demised premises unto the
TENANT for an annual term commencing January 1, 1999 and ending
October 15, 1999. PROVIDED, however, that TENANT's occupancy and
use of any of the facilities described above shall not begin prior
to or extend beyond the periods stated in Section 1 above. For the
Purpose of renewal, the CITY shall not require additional rental
income over and above all amounts derived from the formulas stated
elsewhere within this Agreement.
3. Renewal. Provided that TENANT is not in default of any
material provision hereunder, TENANT shall have the option to
extend this Lease for an additional period of two (2) years.
TENANT's right to renewal shall be exercised by giving notice of
renewal to the CITY i writing no later than October 1st preceding
the renewal term. A9
acondition of renewal, TENANT shall expend a
minimum of $33,000 per year for facility improvements during the
original and renewal terms of this Agreement. During the final
year of the renewal of this Agreement, the facility improvements
shall be paid for by May 1st. Private donations obtained by TENANT
for facility improvements shall be applied towards TENANT's
financial obligation herein for facility improvements. TENANT must
obtain the approval of the CITY for any donation. The CITY must
approve any facility improvements. Facility improvements shall be
those agreed upon by the CITY and TENANT that are mutually
beneficial to the parties.
Page 2
4. Existing a t A dit' ns and Changes. No building
r facility or any physical changes to any existing buildings or
facilities may be constructed without the express written consent
of the CITY. Such consent shall not be unreasonably withheld.
However, the CITY may withhold its consent to any additions o
changes which, in the sole opinion of the CITY, would have a
negative impact on the use of the leased facilities for other
events and purposes, or on the structural integrity of any building
or structure. All additions and changes shall be made in
accordance with the appropriate building and development Codes, and
TENANT shall be responsible for all necessary permits.
It is understood and agreed that the CITY shall remain the
legal owner of all buildings, structures, improvements, facilities
and installations currently upon the premises or which may be
erected upon the premises during the term of this Agreement or any
extensions or renewals thereof. Equipment owned and installed by
TENANT shall become the property of the CITY where such equipment
becomes attached to and a fixed element of any building, structure,
or facility.
5. Maintenance and Improvements. TENANT shall, at its sole
cost, provide all necessary maintenance and repair of the leased
facilities, including the maintenance and repair necessary to keep
the facilities in compliance with applicable fire and life safety
codes. TENANT shall maintain the facilities in accordance with
first class standards comparable to other facilities in Maine and
New England. The CITY and its designated representatives shall
have a right of access to inspect premises and facilities and to
order corrective measures. Formal inspections of the demised
premises shall be Conducted by the CITY on or about March 1st,
during the week prior to the Bangor State Fair, during the week
after the Bangor State Fair, during the week after September
racing, if applicable, and during the first week of November of
each year this Agreement is in force. The purpose of these
inspections is to insure that the facilities are maintained in the
$ame or better condition as existed at the start of the Agreement.
In the event TENANT fails to make repairs or to keep the facility
n a safe and sanitary condition, CITY shall have the right to
enter upon the facility for purposes of making repairs and to
charge the cost of such repairs to TENANT. Failure to adequately
maintain the facility will be a basis for default and termination
of this Agreement and forfeiture of performance bond.
It is anticipated that the CITY will participate in the cost
of betterments or improvements made to shared -use facilities where
such work benefits events or users of the facilities other than
harness racing. TENANT shall forward requests for such improve-
ments or betterments to the CITY on an annual basis, on or about
March 1st of each year, for consideration In the CITY's annual
budget process. These requests may include requests for pro-
portional reimbursements for betterments already performed by
TENANT. The cost of such improvements shall be shared on a 50/50
basis or such other basis as may be separately negotiated subject
Page 3
to City council approval of the expenditure. The CITY may, at its
own option, elect to proceed with its own betterments or improve-
ments to shared -use facilities where Such work shall not have a
negative impact on harness racing. The CITY shall inform TENANT in
advance of planned improvements and shall coordinate their schedule
with TENANT in order to minimize their impact on harness racing.
TENANT may, at its own option, elect to proceed with its own
betterments or improvements to shared -use facilities where such
work has been previously approved by the CITY for construction but
not for shared -funding.
6. Approved Uses. The primary use of the leased facilities
will be for live harness racing and directly related activities and
promotions including simulcasting. Other horse related events such
as horse shows, sales, and demonstrations are permitted. TENANT
shall have the exclusive use of the leased premises for these uses
during the term of this lease agreement. Where such events occur
on a stand-alone basis on the leased facilities and during TENANT'S
occupancy period, net revenues shall be apportioned between the
CITY and TENANT on a 75%/25% basis with the larger portion going to
the entity which identifies and brings the events to the facility.
The TENANT may request that he be allowed to use the
facility for other licensed Maine Harness Racing Commission
services, and if so requested, a separate agreement, subject to
final approval of the Bangor City Council, may be negotiated by the
parties.
7. Utilities. All utility expenses including water,
electrical, telephone, sewer and waste disposal, required to
operate the leased facility, shall be paid by the TENANT. TENANT
shall pay CITY for all City-prOvided utilities at the same rates
the CITY charges similar customers. The CITY and TENANT shall
agree to a utility metering and/Or cost allocation plan which will
be implemented prior to March 1, 1999- The purpose of this plan is
to provide for a cost-effective Plan for either separately metering
the facilities to be used for racing or appropriately allocating
utility costs based on actual use for racing and other events.
8. Taxes Licenses and Fees. TENANT shall be responsible
for any and all taxes andall required licenses and fees to operate
the Facility.
9. Indemnification and Insurance. The TENANT shall
indemnify, defend, and hold harmless the CITY from and against all
claims and actions, and all expenses incidental to such claims or
actions, based upon or arising out of damage to property or
injuries to persons or other tortious acts caused or contributed to
by the TENANT or anyone acting under its direction or control or in
its behalf in the Course of the TENANT'S activities under this
Agreement, provided the TENANT'S aforesaid indemnity and hold
harmless agreement Shall not be applicable to any liability based
upon the sole negligence of the CITY.
Page 4
The TENANT hereby expressly agrees that it will defend,
indemnify and hold the City of Bangor harmless from any and all
claims made or asserted by TENANT'S agents, servants or employees
arising out of TENANT'S activities under this Agreement. For this
Bonuses, TENANT waives any and all immunity it may
have under M Workers' Compensation Act in regard to su
ane o
The include any and
nrprovcost under this paragraph shall extend to
and include any and all setts incurred by the CITY answer,
investigate, defend and settle all such claims, including but not
limited to the CITY's costs for attorney fees, expert and other
witness fees. the cost of investigators, and payment in full of any
and all sugnt rendered 1n r of TENANT'S agents, servants or
a
employees against
rega
t the CITY in to claims made or asserted by
such agents, servants, or employees.
a. In connection with the employment of its employees,
TENANT shall pay all applicable social security,
unemployment, workers' compensation, or other employment
taxes or contributions of insurance and shall comply
with all federal and state laws and regulations relating
to employment generally and to wages, social security,
unemployment insurance and workers' compensation in
particular. TENANT shall indemnify and hold harmless
the CITY from all costs, expenses, claims or damages
resulting from any failure of TENANT to comply with
these requirements.
b. TENANT shall procure and maintain comprehensive general
liability and automobile liability insurance on behalf
of the CITY against any damage, lossor liability or
claims alleged to have arisen from the use or occupancy
by TENANT of the raceway and related facilities. With
respect to the required insurance, CITY shall be named
as an additional insured; be provided with a waiver of
subrogation in favor of the CITY; and shall be provided
with thirty (30) days notice of cancellation or material
change; and shall be provided, through the Office of the
City Solicitor, with certificates of insurance
evidencing the above required insurance. The cost of
such insurance shall be paid directly by TENANT. The
CITY reserves the right to increase insurance levels at
the time of any contract extension or option renewal.
The amounts of such coverage shall be as follows:
1 De Amount
1, workers' Compensation $1M combined single limit
Statutory Employers
Liability
2. Comprehensive Public $iM Combined single limit
Liability to include with additional umbrella
but not be limited to policy for not less than
the following: $2M
Page 5
a) premises/operations
b) independent contractor
c) personal injury coverage
d) product/completed Operations
e) contractual liability
3. Comprehensive Automobile SIM combined single limit
Liability coverage to
include coverage for:
a) owned/rented automobiles
b) non -owned automobiles
c) hired cars
4. Standard Form Fire or Replacement Value
All Risk Insurance
Policy
Should TENANT desire, CITY will entertain a request that
Fire or All Risk Insurance be provided by the CITY and shall be
paid, on an agreed pro -rata basis, by TENANT for those periods in
which TENANT occupies the facilities. In the event of loss or
damage to any portion of the leased premises due to fire or other
casualty occurring during TENANT'S use or occupancy, or occurring
after TENANT's use or occupancy as a result of the negligence of
TENANT or TENANT's agents, servants, contractors, or employees,
TENANT shall reimburse to the CITY any portion of the CITY's cost
of replacing or repairing the particular facilities concerned that
is not reimbursed by applicable fire or all risk insurance.
Each insurance policy procured by TENANT shall affirmatively
state that it will not be invalidated because the insured waived
its rights of recovery against any party prior to the occurrence of
a loss.
10. Employees and Independent Contractors. TENANT and its
employees shall operate as an independent contractor and neither
TENANT nor TENANT'S employees shall be deemed in any manner to be
agents or employees of the CITY. The CITY shall not be responsible
for TENANT's financial obligations including, but not limited to,
salaries and wages earned by employees, purse distribution and
Prizes won during the course of the racing meet, or amounts due to
independent contractors, horsemen, vendors and patrons.
11. Comnhame with Laws. TENANT will comply with all
federal, state and local statutes, rules, ordinances and
regulations as they relate to the operation of the raceway and
related facilities.
12. Non -Discrimination. In conducting activities under
this Agreement, TENANT shall not discriminate on the basis of race,
color, sex, creed, religion, ancestry. national origin, age or
disability, or in any other manner prohibited by law, and shall not
fail or refuse to hire an employee or accord adverse, or unequal
Page 6
treatment to any person or employee with respect to application,
hiring, training, apprenticeship, tenure, promotion, upgrading,
compensation, layoff, discharge or any other term or condition of
employment in any manner prohibited by law.
13. Catering. TENANT shall have the exclusive right to
sell alcoholic beverages on the leased premises during TENANT'S
occupancy thereof and shall have the right to operate or let all
food and drink concessions at the raceway where the provision of
such services is for acing event authorized under this
Agreement. CITY reserves right to provide these services and
concessions for anyevent sponsored or permitted by the CITY.
TENANT may exercise these rights directly or through an agreement
with a reputable area concessionaire acceptable to the CITY.
Should a concessionaire be selected, the concessionaire must enter
into an agreement with the CITY for the use of any concession
equipment or supplies owned by the CITY and for the provision by
the concessionaire of insurance acceptable to the CITY and the
guarantee of necessary operating licenses, including a license for
sale of beer. The CITY reserves the right to require a reasonable
payment for such equipment and supplies.
14. Purchase of City Inventorv. TENANT shall purchase all
maintenance materials and supplies on hand and owned by the CITY at
the time TENANT assumes operation of the raceway. Price will be
based on actual CITY costs.
15. Performance Bond. TENANT shall provide the CITY with
an acceptable corporate surety bond in the penal sum of $30,000
payable to the CITY, or such Other security as is acceptable t0 the
City Solicitor, for the faithful performance of all duties and
obligations imposed upon TENANT by and under the terms of this
Agreement. The CITY reserves the right to require an increase in
the amount of this bond at the time of any extension or option
renewal of this Agreement. Such increase shall be limited to no
more than 258 of the amount in effect at the time, Bond or other
acceptable security may be provided within ten (10) days of award
of extended racing meet license to TENANT by the Maine Harness
Racing Commission. In addition to serving as a performance bond,
this amount, if provided i appropriate form acceptable to the
City Solicitor, shall also fulfill the requirement outlined in
Section 22 below for a Damage Deposit. Acceptable security may
include an irrevocable letter of credit or a cash deposit. Said
Performance bond shall remain in force, at a minimum, until
November 30th of each year this Agreement is in force.
16. Responsibilities of Tenant. Consistent with the terms
of this Agreement, TENANT shall exercise sound business judgment,
cooperate with the CITY, and be open to the CITY's recommendations
and advice. The CITY'S and TENANT'S specific responsibilities
shall include, though not necessarily be limited to, the following:
a. Neighborhood Public Relations and Protection. TENANT
is mindful of the impact of Facility activities on the
Page 7
immediate neighborhood and surrounding area. TENANT
agrees to adhere to the following guidelines:
i. No live race shall start after 11:00 p.m. unless,
due to an unforeseen emergency such as, but not limited
to, loss of power, loss of computer support to run the
mutual area, facility accident, or loss of ambulance
support, races are delayed. In such circumstances,
TENANT shall make every effort to accelerate post times
and to finish operating at a reasonable hour, in no case
later than 12 midnight.
ii. TENANT, in conducting TENANT's activities under
this Agreement, shall take necessary steps to prevent
generation of excessive noise. For this purpose,
excessive noise shall mean noise of a volume, pitch Or
intensity likely to disturb the peace of ordinary
occupants of residential properties surrounding the Hass
Park Complex.
111. To the best of its ability, TENANT shall ensure
that horse trailers and Facility traffic will comply
with all applicable CITY rules and regulations.
b. Pest Control. TENANT shall be responsible for all
necessary pest control services. TENANT and the CITY
may mutually agree to a proration of annual pest control
services.
C. Snow Removal, The CITY shall be responsible for snow
removal services.
d. Trash Removal. TENANT shall be responsible for all
waste and trash removal services, including removal and
disposal of manure.
e. LijQenkeZ-VL Permits. TENANT shall obtain and maintain
all licenses and permits necessary for TENANT to manage
and operate the Facility. Failure to maintain the
necessary licenses and permits to operate and manage the
Facility shall constitute a breach of this Agreement.
f. Fixed Asset Inventory. TENANT shall take custody but
not ownership of the fixed assets of the Facility. The
CITY shall provide TENANT with a full and complete
written inventory of structures, facilities, and
improvements within the leased area. TENANT shall
accept this fixed asset inventory and may request a
physical walk through and verification with a designated
representative of the CITY. Proper notations of any
discrepancies shall be made and initialed by both
parties on the written inventory. During their period
of use, TENANT shall assume all maintenance and repair
costs on such equipment.
g. crass Outline. The CITY will be responsible for all
grass cutting throughout the property.
17. Security. TENANT will insure that adequate security is
available for all events held at the Facility. TENANT shall
develop, in Cooperation with the Chief of Police of the Bangor
Police Department, a security plan for the Facility. This plan
shall outline the level and type of security to be provided during
racing. Uniformed police officers shall be in attendance at all
harness racing events. The number of uniformed police to be
present shall be established in the joint security plan.
In addition, the Chief of Police of the Bangor Police
Department may, at his discretion, require TENANT to provide a
higher level of uniformed police to be present in order to preserve
order and protect lives and property. In the event of a dispute
between the TENANT and the Chief of Police regarding the number of
uniformed police officers required, the dispute shall be submitted
to the City Manager of the City of Bangor whose determination
shall be final.
Uniformed police security may be supplemented by using local
contract security, TENANT's own security employees, or other
sources of security service. The Chief of Police of the City of
Bangor shall retain the authority to direct TENANT to remove from
this responsibility any individual engaged in providing security
services for any reason. The required security plans shall be
developed and approved by TENANT and the CITY within sixty (60)
days of the date of agreement. TENANT shall pay the CITY for use
of uniformed police officers at the same rate established by the
CITY for such services provided to other parties. During any
renewal period of this Agreement, TENANT and the Chief of Police
shall meet to review the previous racing season's security plan and
shall agree on any modifications to said security plan necessary
for the renewal period's race meet. Said meeting and agreement on
necessary modifications shall take place no later than thirty (30)
days prior t0 the start of said race meet.
18. Fire Protection. TENANT shall abide by all life safety
and fire codes established by the State of Maine and the CITY as
interpreted and enforced by the Code Enforcement Officer of the
City of Bangor or the State Fire Marshal's Office.
19. Bass Park Will. The property upon which Bass Park is
located was donated to the CITY under certain Conditions outlined
in the Will of J.P. Bass. The Will essentially requires that the
Bass Park property be maintained and used for public recreation
purposes. CITY will provide TENANT with a copy of the Bass Will.
TENANT agrees to abide by the terms and conditions of the Will in
its operation of the facilities.
20. Payment to the City. TENANT shall pay the CITY a base
fee of Thirty -Five Thousand Dollars ($35,000.00) for the right to
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lease and operate the premises. In addition to the base fee,
TENANT shall pay to the CITY an additional fee amount to be
determined as follows: If the sum of the average daily handles
both on -track and at Maine Off Track Betting facilities wagered o
TENANT's races is greater than Fifty Thousand Dollars ($50,000.00),
the percentage amount by which said amount exceeds $50,000.00 shall
be multiplied by the base fee to determine the amount of the
additional fee. CITY shall invoice TENANT the full amount of the
base fee on March 1st of each year of this Agreement or renewal
thereof. TENANT shall pay the fee(s) in seven (7) equal monthly
installments beginning March 1st. Any additional fees due will be
calculated at the end of the Racing Season and be payable by
September 1st with the final rental installment. At the end of any
month races are conducted on or at the leased premises, TENANT
shall provide to CITY copies of reports required to be filed with
the State of Maine reflecting all wagers placed or made at the
leased premises, as well as all wagers made or placed at Maine Off
Track Betting facilities on races conducted at the leased premises.
The annual payment to the City may be renegotiated by the
parties in the event TENANT has applied to the Maine Harness Racing
Commission for fifteen (15) days of racing or less for that
particular year. Provided, however, that the rental shall be based
upon a per them for use of the racetrack and grandstand only on
actual race dates.
21. other Pavments. In addition to any and all payments
required elsewhere in this Agreement, TENANT shall expend twenty-
five percent (25%) of any payment made to TENANT under Title 8,
Maine Revised Statutes, Section 25(H)(3), sometimes referred to as
the "Commercial meet stipend", on facility improvements during the
calendar year in which such payment, if any, is received.
22. Damage Deposit. Within two (2) weeks following the
CITY's annual pre -race inspection of the premises ("., the
inspection which is to occur on or about March 1st of each year
this Agreement is in force), TENANT shall deposit with the CITY the
sum of Ten Thousand Dollars ($10,000.00) to be held by the CITY as
a deposit against the CITY's cost of repairing any unrepaired
damage to the premises Caused by the TENANT, its employees,
horsemen, vendors, harness racing patrons, or Others using the
premises during the harness racing season. Following the
Conclusion of live racing and prior to the start of the Bangor
State Fair, the CITY shall also conduct inspections of the premises
as provided in paragraph 5 above for the purpose of identifying any
unrepaired damage to the premises occasioned by TENANT'S use
thereof. The CITY shall provide TENANT with a list of all such
items of unrepaired damage, which shall be repaired by TENANT prior
to the start of the Bangor State Fair, or within thirty (30) days
of the CITY's notice to TENANT, as the CITY may direct. If not
repaired by TENANT within such period, the CITY may repair or cause
such items to be repaired, and may apply TENANT's damage deposit as
necessary for that purpose. As a condition of the renewal of this
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License, TENANT shall deposit with the CITY funds sufficient to
restore the damage deposit amount to Ten Thousand Dollars
($10,000.00). Upon termination or final expiration of this Lease,
and following repair of all unrepaired damage to the premises
occasioned by TENANT 'a use thereof, the unexpended balance of
TENANT'S damage deposit shall be refunded to the TENANT. Said
damage deposit, whether included as part of the Performance Bond
(Paragraph 15 above) or otherwise shall remain in force, at a
minimum, until November 30th of each year this agreement is in
force.
23. Advertising. TENANT Shall have the right to solicit
and display advertising within and around the grandstand and on the
raceway shadow fence. Such advertising must comply with the
Advertising Policy Of the Bangor City Council as currently adopted
or as it may, from time to time, be amended. Any revenues derived
from such advertising shall be prorated between TENANT and CITY
based on the percentage of time such advertising shall be displayed
during and outside TENANT 'a period of occupancy of the facilities
where such advertising is present. Any advertising which will be
displayed beyond TENANT's period of occupancy must be specifically
approved by the CITY. Any advertising to be provided in exchange
for facility improvements must be approved by CITY, both as to
content of advertising and overall payments or facility
improvements to be provided.
24. Event Sian. CITY shall provide TENANT with the right
to Place an event sign adjacent to the Bass Park property at a
location mutually acceptable to CITY and TENANT. In addition, CITY
shall make space available on the Bass Park lighted marquee sign
located on Main Street whenever possible.
25. Destruction of or Maior Repairs to the Premises. In
the event that the leased premises or any part of the leased
premises shall be destroyed by fire, explosion or other casualty,
or a need arises for substantial capital improvements so that all
or a substantial portion of the leased premises cannot be operated,
and the CITY or TENANT fails to rebuild, repair and reopen the same
for business within sixty (60) days after the happening of said
event, then either party shall have the right (but no obligation)
to terminate this Agreement.
26. Termination and Default. If TENANT fails to pay or
deposit sums due within seven (7) days notice of such failure, or
fails to comply with its other obligations under the terms of this
Agreement, and the TENANT fails to cure such failure within thirty
(30) days after written notice, which notice shall specify in
sufficient detail the specific circumstances so as to give the
TENANT adequate notice and the opportunity to cure the same, the
CITY may upon expiration of such period terminate this Agreement.
27. No Joint Venture. Nothing contained herein shall be
deemed or construed by the parties, nor by any third party, a
creating the relationship of principal and agent or of partnership
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or joint venture between the parties, it being understood and
agreed that neither the method of computation of rent nor any other
provision nor any other acts of the parties shall be deemed to
create any relationship between the parties other than that of
landlord and tenant.
28. NQn-Waiver. The failure of either party at any time to
enforce a provision of this Agreement shall in no way constitute a
waiver of the provision, nor in any way affect the validity of this
Agreement or any part hereof, or the right of such party thereof to
enforce each and every provision hereof.
29. Amendment. The parties may amend this Agreement only
by written agreement executed by the parties.
30. No Assignment. TENANT shall not assign, sublet, sell,
transfer, or otherwise dispose of its interest in this Agreement
without the prior written approval of the CITY. This Agreement
shall be binding upon and inure to the benefit of the parties
hereto, their successors and permitted assigns.
31. Severability. Any provision of this Agreement declared.
valid by a court of competent jurisdiction shall not invalidate
the remaining provisions of this Agreement.
32. Governing Law. This Agreement shall be governed
exclusively by the provisions hereof and by the laws of the State
of Maine, as the Same may from time t0 time exist. NO suit Shall
be brought by either party to enforce any of the terms or
provisions of this Agreement, unless brought in the Penobscot
County, Maine District or Superior Court.
33. NN tom. All notices required by this Agreement shall
be in writing. and shall be sufficiently given and served upon the
other party if sent by registered or certified United States mail,
postage prepaid, and addressed as follows:
If sent to CITY: Michael Dyer, General Manager
Bass Park Complex
100 Dutton street
Bangor, ME 04401
With a copy to: Erik M. Stumpfel, City Solicitor
City of Bangor
73 Barlow Street
Bangor, ME 04401
or at such other place as the CITY may, from time to time,
designate by notice to TENANT.
If sent to TENANT: Bangor Raceway
P.O. Box 614
Bangor, ME 04402-0614
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With a copy to: P. Andrew Hamilton, Esq.
Eaton Peabody Bradford s Veague
P.O. Box 1210
Bangor, ME 04402-1210
or at such other place as TENANT may, from time to time, designate
to the CITY.
34. Integration. This Agreement and all appendices and
amendments hereto embody the entire agreement of the parties
relating to the duties and obligations required hereunder. There
are no promises, terms, conditions or obligations other than those
contained herein, and this Agreement shall supersede all previous
communications, representations or agreements, either oral or
written, between the parties hereto.
IN WITNESS WHEREOF, the parties have respectively executed
or caused this Agreement to be executed the day and year first
written above.
WITNESS: CITY OF BANGOR
(BY)
Edward A. Barrett
Its City Manager
WITNESS: BANGOR HISTORIC TRACK, INC.
APPROVED AS TO FORM:
CITY of BANGOR, by
Printed Name
Title
(By)
Fred Nichols
Its Raceway Manager
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