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HomeMy WebLinkAbout1994-10-12 94-446 ORDERCOUNCIL ACTION 94-446 Item No. Date October 12. 1994 Item/Subject; Authorising City Manager t0 Execute Amendment No. 1 to Bangor Raceway Lease Agreement with Bangor Historic Track, Inc. Responsible Department; Legal See attached memo Department Head Manager's Comments: Associated Information: Order, Memo, Amendment No. 1 Budget Approval: e Director Legal Approval: "/ City ScitoY " Introduced For NEW BUSINESS A Passage First Reading Referral Page 1 of _10 94-446 Aeaip�ed to Couua9r Blanchette October 12, 1994 CITY OF BANGOR (TITLE.) (Ora0X Authorizing. City Manager to execute Amendment_.. NO. 1 to Bangor Raceway Lease Agreement with Bangor Historic Track, Inc. BY uw Hex Cawood of Um CHU QfBayn: ORDERED, THAT City manager Edward A. Barrett is hereby authorized to execute Amendment No. 1 to Bangor Raceway Lease Agreement with Bangor Historic Track, Inc. Said Amendment shall be substantially similar to the Amendment attached and incorporated herein by reference as Exhibit A. Any changes to Exhibit A must be approved as to form by the City Solicitor prior to execution. 'N CRY Co R I . fCTOHER I? 1Y14 PRSS® .. fC� CIT' CLERK q4 W ORDER Title, AUTMMZIVG CSTY MANAGER 'Pl EXECUTE ••AME<gISYiTI I. TO. AANGOR Rft h N LEA RE AGPSENENT MTH BANGOR HISTOR"C MCZ INC .................//.��../..�.... ..,�............... '81j[� P...R...,.... Councilman 94-446 TO: Bangor City coin.x.¢ FROM: Bruce N. Shible r� t City Solicitor RE: Amendment No. 1 to Bangor Raceway Lease Agreement with Bangor Historic Track, Inc. DATE: October 5, 1994 As the Council is aware, Bangor Historic Track, Inc. (Bangor Raceway) wishes to conduct a harness racing meet at Bass Park for the 1995 racing season. The Bass Park Committee met on August 24th and approved the substance of changes to the original Bangor Raceway Lease Agreement. Since that meeting Fred Nichols, n behalf of Bangor Raceway, has indicated a desire to apply for September race dates, to run two horse shows (Arabians and Morgans) n August, and to keep the barns open until October 31st. Bangor Raceway is also interested in running a few races during the Fair, but if that becomes a reality it will be addressed in a separate document. Members of the Committee have been contacted about the changes, as well as Councilor Tyler who attended the September meeting. The changes will also be addressed at the October 12th Committee meeting prior to the Council meeting. The substance of the original Agreement remains unchanged as all parties are in agreement that it adequately addresses day-to-day operations. A summary of substantive changes follows: (1) Provision has been made to extend the dates for which Bangor Raceway will be in control of the various parts of the premises. (2) The second half rent payment will be due on the day after the last day of pre -Bangor State Fair racing. (3) The performance bond/damage deposit will be in force for 30 days after the last occupation of any part of the premises. (4) The rent escalator provision will be tied to increases a $60,000 average daily handle of all wagers wagers (live racing and simulcast) placed at the Raceway. (5) The notice of renewal and amendment execution dates have been extended to reflect the longer period of occupancy. (6) Other changes are designed to clarify provisions of the original Agreement that may have created confusion during subsequent renewal terms if left unchanged. 94-446 Page Two Per C.O. #94-372, the renewal agreement must be executed by October 15th. Fred Nichols plane to be in attendance at the Council meeting if further questions arise. Staff will inform the Council of the Committee's final recommendation. Staff recommends approval of this Order. tc 94-446 AMENDMENT NO. 1 TO BANGOR RACEWAY LEASE AGREEMENT THIS AMENDMENT NO. 1 TO BANGOR RACEWAY LEASE AGREEMENT (hereinafter sometimes referred to as "Amendment No. 1°), executed in duplicate, this_day of , 1994, by and between 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 sometimes referred to as the "CITY") and BANGOR HISTORIC TRACK, INC., a duly authorized and organised Maine corporation doing business as Bangor Raceway and having a principal place of business at Bangor, Penobscot County, Maine (hereinafter sometimes referred to as "TENANT"). W I T N E S S E T H; WHEREAS, the CITY and TENANT are Parties to a certain Bangor Raceway Lease Agreement (hereinafter sometimes referred to as "Lease Agreement"), dated January 25, 1994, regarding the use and occupancy of the Bass Park grandstand, track, barns, and trailer Park by TENANT) and WHEREAS, said Lease Agreement provides for anwal term after proper notice by TENANT and agreement between the CITY and TENANT to changes oramendmentsto said Lease Agreement; and WHEREAS, the parties hereto wish to renew said Lease Agreement for the calendar year 1995 racing season subject to the within terms and conditions; NOW, THEREFORE, the parties do mutually agree as follows: 1) THAT Paragraph 1 (Premises) of said Lease Agreement be amended as follows: a) Replace all language under the headings "Area" and "Dates" with the following: Track March 1 through September 16, but excluding July 24 through August 11 and August 31 through September 4 Barns March 1 through October 31 and anable Period before March i for preparation purposes Trailer Park March 1 through July 23, August 18 through August 20, August 24 through August 27, and September 5 through September 17 EXHIBIT A 94-446 -2- Grandstand March 1 through September 16, but excluding July 24 through August 11 and August 31 through September 4 b) In subparagraph (b) (Trailer Park) replace the clause "harness racing on a priority basis for the period from March 1 through the Sunday before the opening of the Bangor State Fair." with the clause "horse shows held in August or with harness racing on a priority basis during the Trailer Park dates indicated above." and insert the clause "during the Trailer hark dates" between "space" and "will' in the 4th line of said subparagraph. C) In subparagraph (c) (Track and Grandstand) replace the clause 'May 21 and May 22, 1994," with the clause 'May 20 and May 21, 1995,". 2) THAT Paragraph 2 (Term) of said Lease Agreement be amended as follows: a) Replace the clause 'January 1, 1994 and ending December 31, 1994,' with the clause "January let and ending December 31st of each year this agreement is in force." b) Insert the clause "after the initial term" betweenaually" and "for" in the 5th line of said paragraph. 3. THAT Paragraph 3 (Renewal) of said Lease Agreement be amended as follows: Replace the word "September" with the word "October" in the second line of said paragraph and replace the sentence "In the event the parties are unable to agree to such renewal term within forty-five (45) days of the CITY's receipt of TENANT's notice, this Agreement shall be deemed to have expired." with the sentence 'Provided TENANT gives such timely notice of renewal to the CITY, the parties shall agree no later than the December 15th preceding any renewal wal period to the terms and conditions of any such period or this Agreement shall be deemed terminated.^ 94-446 -3- 4) TIAT Paragraph 5 (Maintenance and Improvements) of said Lease Agreement be amended as follows: Replace the sentence •TENANT shall, at its sole cost, provide all necessary maintenance and repair of the existing facilities, excepting the maintenance and repair required to bring the facilities under lease into compliance with existing life safety codes which shall be the responsibility of the City." with the sentence "TENANT shall, at its sole cost, provide all necssary 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.' and replace the sentence "As formal inspections of the premises shall be conducted annually on or about March let and during the week prior to the opening of the Bangor State Fair" with the sentence 'Formai 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." 5) THAT Paragraph 6 (Approved Uses) of said Lease Agreement be amended as follows: Insert the word "net' between "period," and revenues in the 6th line of said paragraph. 6) THAT Paragraph 15 (Performance Bond) of said Lease Agreement be amended as follows: Add the following sentence to the end of said paragraph, "Said performance bond shall remain n force, at a minimum, until November 30th of each year this Agreement is in force." ]) THAT Paragraph 17 (Security) of said Lease Agreement be amended as follows: Add the following sentences to the end of the third subparagraph of said paragraph, "During any renewal wal period of this Agreement, TENANT and the Chief of Police shall meet to review the previous racing season's security pian and shall agree on any modifications to said security plan necessary for the renewal period's race 94-446 _4_ set. Said meeting and agreement on necessary modifications shall take place no later than thirty (30) days prior to the start of said race meet." 8) THAT Paragraph 18 (Fire Protection) of said Lease Agreement be amended as follows: Delete from said paragraph the clause '(See Section 5 for CITY's responsibility)." 9) THAT Paragraph 20 (Payment to the City) of said Lease Agreement be amended as follows: Replace all the language following " . an additional amount to be determined as follows:" with "If the average daily amount of all wagers placed or made at the leased premises for the prior year s greater than Sixty Thousand Dollars ($60,000), the percentage amount by which said amount exceeds Sixty Thousand Dollars ($60,000) shall be multiplied by the Fifty Thousand Dollars ($50,000) base fee to determine the amount of the additional fee. TENANT Shall pay to the CITY fifty percent (504) of the base fee and additional fee, if any, on or before March 1st of each year that this Agreement is in force and the remaining fifty (504) on or before the day following the last day of racing that takes place before the Bangor State Fair. At the and of any month races are conducted on or at the leased premises, TENANT shall provide the CITY with reports of all wagers placed or made at the leased premises, as well as all wagers made or placed at other locations on races conducted at the leased premises." 30) THAT Paragraph 22 (Decade Deposit) of said Lease Agreement be amended as follows: Replace the clause "Within two (2) weeks following the CITY's first annual pre -race inspection of the premises, 12, by March 1, 1994," with the clause "Within two (2) weeks following the CITY's annual pre -race inspection of the premises (i_e., the inspection which is to occur on or about March 1st of each year this Agreement is in force)," and add the following sentence to the end of said paragraph, "Said damage deposit, whether included as part 94-446 of the Performance Bond (Paragraph 15 above) o otherwise, shall remain n force, at a minimum until November 30th of each year this Agreement is in force.- and replace the clause `Following the conclusion of live racing and prior to the start of the Bangor State Fair, the CITY shall conduct an inspection" with the clause "The' CITY shall also conduct inspections" 11) THAT except for the foregoing, said Lease Agreement, dated January 25, 1994, between the CITY OF BANGOR and BANGOR HISTORIC TRACK, INC. shall remain in full force and effect in all other respects between the undersigned parties. IN WITNESS WHEREOF, the parties hereto have respectively executed or caused this Amendment No. 1 to be executed on the day and year first written above. CITY OF BANGOR (By) Edward A. Barrett City Manager BANGOR HISTORIC TRACK, INC. (BY) Fred Nichols Treasurer STATE OF MAINE PENOBSCOT, as. 1994 Then personally appeared the above-named EDWARD A. BARRETT, City Manager, and acknowledged the foregoing instrument to be his free act and deed in his said capacity, and the free act and deed of said body corporate. Before me, Notary Public/Attorney-at-Law Printed Name: -6 - STATE OF MAINE PENOBSCOT, as. K -Rn Then personally appeared the above-named FRED NICHOLS, Treasurer of Bangor Historic Track, Inc., and acknowledged the foregoing inatrument to be his free act and deed in his said capacity, and the free act and deed of said corporation. Before me, Notary PubliC/AttOrney-at-Law Printed Name: APPROVED AS TO FORM: Erik M. Stumpfel, City Solicitor 94-446 AMENDMENT NO. 1 TO BANGOR RACEWAY LEASE AGREEMENT THIS AMENDMENT NO. 1 TO BANGOR RACEWAY LEASE AGREEMENT (hereinafter sometimes £erred to -Amendment No. 1") executed in duplicate, this 1�GT, day of ()rj.(arf 1994, by and between the CITY OF BANGOR, a manicipal corporation organized and existing under and by virtue of the laws of the State of Maine, and located at Bangor, Penobscot County, Mine (hereinafter sometimes referred to as the "CITY") and BANGOR HISTORIC TRACK, INC., a duly authorized and organized Maine corporation doing business as Bangor Raceway and having a principal place of business at Bangor, Penobscot County, Maine (hereinafter sometimes referred to as "TENANT"). W I T N E S S E T H• WHEREAS, the CITY and TENANT are parties t0 a Certain Bangor Raceway Lease Agreement (hereinafter sometimes referred to as "Lease Agreement"), dated January 25, 1994, regarding the use and occupancy of the Bass Park grandstand, track, barns, and trailer park by TENANT; and WHEREAS, said Lease Agreement provides for a renewal term after proper notice by TENANT and agreement between the CITY and TENANT to changes or amendments to said Lease Agreement; and WHEREAS, the parties hereto wish to renew said Lease Agreement for the calendar year 1995 racing seasonsubject to the within terms and conditions; NOW, THEREFORE, the parties do mutually agree as follows: 1) THAT Paragraph 1 (Premises) of said Lease Agreement be amended as follows: a) Replace all language under the headings -Area" and "Dates" with the following: Track March 1 through September 16, but excluding July 24 through August 11 and August 31 through September 4 Barns March 1 through October 31 and anable period before - March l for preparation Ct purposes T2llerSRerk March 1 through July 23, >m� August 30 through August 20, August 24 through August 27, and September 5 through September 17 -2 - Grandstand March 1 through September 16, but excluding July 24 through August 11 and August 31 through September 4 b) In subparagraph (b) (Trailer Park) replace the clause -harness racing on a priority basis for the period from March 1 through the Sunday before the opening of the Bangor State Fair." with the clause "horse shows held in August or with harness racing on a priority basis during the Trailer Park dates indicated above.- and insert the clause -during the Trailer Park dates" between ^space" and ^will" in the 4th line of said subparagraph. c) In subparagraph (c) (Track and Grandstand) replace the clause 'My 21 and Nay 22, 1994,' with the clause "May 20 and May 21, 1995, 2) THAT Paragraph 2 (Term) of said Lease Agreement be amended as follows: a) Replace the clause ^January 1, 1994 and ending December 31, 1994,^ with the clause "January lot and ending December 31st of each year this agreement is in force." b) insert the clause "after the initial term" between "annually" and "for" in the 5th line of said paragraph. 3. THAT Paragraph 3 (Renewal) of said Lease Agreement be amended as follows: Replace the word "September" with the word "October" in the second line of said paragraph and replace the sentence "In the event the parties are unable to agree to such renewal term within forty-five (45) days of the CITY'S receipt Of TBNANT's notice, this Agreement shall be deemed to have expired.- with the sentence "Provided TENANT gives such timely notice of renewal to the CITY, the parties shall agree no later than the December 15th preceding any renewal period to the terms and conditions of any such period or this Agreement shall be deemed terminated." -3- 4) Paragraph 5 (Maintenance and Improvementa) of said Lease Agreement be amended as follows: Replace the sentence "TENANT shall, at its sole cost, provide all necessary maintenance and repair of the existing facilities, excepting the maintenance and repair required to bring the facilities under lease into compliance with existing life safety codes which shall be the responsibility of the City." with the sentence TENANT shall, at its sole cost, provide all necsary 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." and replace the sentence "As formal inspections of the premises shall be conducted annually on or about March 1st and during the week prior to the opening of the Bangor State Fair" with the sentence "Formal inspections of the demiaed 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 Pair, during the week after September racing, if applicable, and during the first week of November of each year this Agreement is in force." 5) THAT Paragraph 6 (Aooroved Uses) of said Lease Agreement be amended as follows: Insert the word "net" between "period," and revenues in the 6th line of said paragraph. 6) THAT Paragraph 15 (Performance Bond) of said Lease Agreement be amended as follows: Add the following sentence to the end of said paragraph, -Said performance bond shall remain in force, at a minimum, until November 30th of each year this Agreement is in force." - ]) THAT Paragraph 17 (Security) of said Lease Agreement be amended as follows: Add the following sentences to the end of the third subparagraph of said paragraph, "During any renewal period of this Agreement, TENANT and the Chief of Police shall meet to review the previous racing ssecurity plan and shall agree any modifications to said security plan necessary for the renewal period's race -5 - of the Performance Bond (Paragraph 15 above) o otherwise, shall remain in force, at a minimum, until November 30th of each year this Agreement is in force." and replace the clause "Following the conclusion of live racing and prior to the start of the Bangor State Fair, the CITY shall conduct an inspection" with the clause "The CITY shall also conduct inspections" 11) THAT except for the foregoing, said Lease Agreement, dated January 25, 1994, between the CITY OF BANGOR and BANGOR HISTORIC TRACK, INC. shall remain in full force and effect in all other respects between the undersigned parties. IN WITNESS WHEREOF, the parties hereto have respectively executed or caused this Amendment No. 1 to be executed on the day and year first written above. CITY OF BANGOR � ///.j / ness (BY) Fdwaxtl A. Barrett City Manager BANGOR HISTORIC TRACK, INC. nesa���*5`� (BY) Fred Nichola Treasurer STATE OF MAINE - PENOBSCOT, as. /Z , 1994 Then personally appeared the above-named EDWARD A. BARNETT, City Manager, and acknowledged the foregoing instrument to be his free act and deed in his said capacity, and the free act and deed of said body corporate. Before me, W/A Lorne Printed Name: N �/O1 C;3 5le i. C,4✓ u STATE OF MAINE PENOBSCOT, as. 1©L /Z , 1994 Then personally appeared the above-named FRED NICHOLS, Treasurer of Bangor Historic Track, Inc., and acknowledged the foregoing instrument to be his free act and deed in his said capacity, and the free act and deed of said corporation. Before me, Printed Na r/y�, c�(/lS9 U♦/�S// APPROVED AS TO FORM, A l o �Obr. la 199`l Bxik M.M. Stumpfel�Ci[y Solicitor Date