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HomeMy WebLinkAbout1993-09-27 93-450 ORDERCOUNCIL ACTION 93-450 Item No. _ Date September 27. 1993 Item/Subject: Authorizing Execution of Facility Maintenance and Management Agreement -- Bangor Youth Hockey Association Responsible Department: Legal Arrangements are currently being made for the Parks E Recreation Department to manage and maintain Sawyer Arena as leased by Bangor Youth Hockey Association (BYRA). The Parka b Recreation Department shall be responsible for staffing when the facilities are being used, including the scheduling of ice time, operating concessions, and setting fees and rentals charged for the use of the arena. In return, the BYRA will pay a Management fee to the City. The initial Cara of this Agreement will run from October 1, 1993 to September 30, 1994. A copy of the draft Agreement is attached. The attached Council Order would permit changes In the executed version of the Agreement, to include any final revisions negotiated between the Director of ofe Parks a Recreation and BYRA. *040(ral'rKe f " eweeali•n dl a "rA I IIyy %ain�fne„x a•�/ �4n^aed( l /i`i' n fare¢^ f}e Ci1y A N'A.5er nnc( /3t gem dViM 4/f/0 'fwrrtffen. OAdv P.wate�s �J 67• AeVAA f, �7< e it Pgn/kS AAA Pe. =0 w QYa9. Wwlo( (a ewr ir?a../„+ef dl 0 Finance Director Legal Approval: City S011C1tOY A Passage First Reading Referral Page 1 of 8 Assigned to Councilor Soucy seetembec n, 1993 CITY OF BANGOR (TITLL) (PrUrf ........Authorizing -Execution -of -Facility Maintenance -and Management Agreement-- Bangor Youth Hockey Association Bq Ge CitF G'oundl o(W CMY NBn*Pe•: THAT the City Manager is hereby authorized and directed, on behalf of the City of Bangor, to execute a Facility_ Maintenance and Management Agreement with the Bangor Youth Hockey Association for certain maintenance and management functions at Sawyer Arena. The Agreement shall be in a form approved by the Parke & Recreation Director and the City Solicitor. Upon execution, a copy of the Agreement shall be filed in the City Clerk's office. IN CITY COONCIL September 27, 1993 pas e Ulp CLERK 93-450 ORDER Title, Auefiorizi.f exec�tlon oP Pac illcy, jWpcemance and Management Agreement - Bangor Yoath Mocker Bssoclatlon.................... Amagned to ...........t5�X...........ow....ci....n.. 11 clma FACILITY MAINTENANCE AND MANAGEMENT AGREEMENT THIS AGREEMENT, executed in duplicate, this _ day of September, 1993, by and between: The CITY OF BANGOR, a body politic and corporate, duly organized and existing under and by virtue of the laws of the State of Raine and located in Bangor, Penobscot County, Maine (hereinafter "the CITY"); and BANGOR YOUTH HOCKEY ASSOCIATION, a non-profit corporation duly organised and existing under and by virtue of the laws of the State of Maine and having its principal place of business in Bangor, Penobscot County, Maine (hereinafter "BYRA"); N I T N E$ N E T H: WHEREAS, BYHA is the leasee of certain facilities located at the CITY's Fairmount Terrace Park, so-called, also known as Hayford Park, under terms of a certain Lease between the parties hereto dated April 1, 1991, as amended, said facilities consisting of an ice hockey arena and related Improvements and appurtenances thereto as described in said Lease (hereinafter "Sawyer Arena" or 'the facilities"); and WHEREAS, BYHA wishes to have the CITY, through its Parks and Recreation Department, perform certain management and maintenance functions at Sawyer Arena and the CITY is agreeable to perform the same; NOW, THEREFORE, in consideration of the above recitals and of the reciprocal obligations and responsibilities herein undertaken, the parties hereby mutually agree asfollows : ARTICLE I MAINTENANCE AND MANAGEMENT OF SAWYER ARENA The parties hereby mutually agree that, commencing October 1, 1993 and for a one-year term thereafter, the CITY, through its Parks and Recreation Department, shall manage and maintain Sawyer Arena as leased facilities of BYRA. The CITY's management of the facilities under this Agreement shall include the responsibility to provide appropriate levels of staffing when the facilities are i use; to schedule and allocate ice time; to set all fees and rentals to be charged for use of the facilities; to control public access to the facilities; to operate concessions; and to do every other thing consistent with management of the facilities as an ice skating arena. In scheduling ice time, BYBA shall be given a preference. In setting fees and rentals for use of Sawyer Arena the CITY, through its Director of Parks and Recreation, shall consult with the governing body of BYHA and may set a preferential rate or rates for use of Sawyer Arena by BYBA and its affiliate clubs, members and teams. The CITY's maintenance of the facilities under this Agreement shall include all regular or ordinary maintenance; replacement of glass and lighting as may be required due to breakage, vandalism or loss; snow plowing, sanding and salting of parking areae, access roads and pedestrian walkways designated in the parties' Lease hereinabove referred to; maintenance of the ice skating surface during the winter ice season; maintenance and repair of all equipment used to service the ice skating surface or to service the facilities; cleanup and disposal of trash and debris generated by use of the facilities; and all other things of a routine or ordinary nature. The CITY'S maintenance of the facilities under this Agreement shall not include responsibility for any item of capital maintenance, capital repair, or capital improvement to the facilities. ARTICLE II MANAGEMENT FEE, EXPENSES In consideration of the CITY's management and maintenance of Sawyer Arena, BYMA shall pay to the CITY as a management fee the a= of Five Thousand Dollars ($5,000.00). Said amount shall constitute full compensation for the CITY's personnel and overhead coats incurred in its management of the facilities through September 30, 1994, but shall not be deemed to include any other item of cost or expense associated with management or maintenance of the facilities. In addition to the management fee, BY shall' be responsible for every item of expense, except personnel costa and overhead, incurred by the CITY in the CITY's management and maintenance of the facilities. Such items of expense shall include, without limitation, the cost of all utilities used at the facilities, including electricity, water and sewer charges; gas and heater rentals, oil and other fuel consumed; gasoline, used i operating the facilities' maintenance vehicles; telephone charges; the cost of consumable supplies and equipment; printing; liability insurance; the coat of any outside services necessarily incurred for vehicle maintenance, equipment repairs or otherwise; and any miscellaneous expense. The CITY, through its Director of Parks and Recreation or designee, shall meet with BYRA prior to October 1, 1993 for the purpose of establishing a projected budget for all such operating expenses, and the CITY, in its management and maintenance of the facilities, shall not exceed the total budgeted amount without prior approval of the President of BYBA unless required to do so by emergency unforeseen circumstances. -2- To the extent not paid directly or reimbursed to the CITY by BYEA, all amounts payable by BYHA for management fees and operating expenses under this Agreement, and for facility rental provided in Article IV of the parties' Lease dated April 1, 1991, as amended,. shall be paid out of the facilities' operating revenue as provided in Article III below. COLLECTION. CONTROL AND DISBURSEMENT OF FUNDS The CITY, through its Parks and Recreation Department, shall collect all fees, rentals and other revenues generated by use r operation of the facilities. Such revenues shall be applied and disbursed by the CITY to meet facility expenses, in the following order of priority: (1) Payment of operating expenses chargeable to BYNA under Article II above; if not previously paid by BYHA; (2) Payment to the CITY of the m nagement fee provided in Article II above, if not previously paid by BYHA; (3) Payment to the CITY of rental amounts required under Article IV of the parties' lease dated April 1, 1991, as amended, if not previously paid by BYHA. All funds collected by the CITY under this Agreement not required to pay facility expenses listed above shall be maintained in a CITY addiunt subject to a final accounting between the parties. In tion, BYHA shall be entitled during the term of this Agreement to a regular accounting of all collections and disbursements made by the CITY under this Article. Such accounting shall be rendered on a monthly basis. After September 30, 1994 and annually thereafter if renewed, the CITY shall render a final accounting of all funds collected for use of the facilities and of all funds disbursed for expenses incurred during the preceding Agreement year. At such time, any surplus amounts remaining after payment of the facilities' operating expenses, management fees, and rental as provided above shall be divided and distributed equally to the CITY and BYHA. The CITY and BYHA shall deposit their respective 508 shares of such funds into separate capital reserve accounts to be administered and expended by each for future capital repair, capital replacement and capital improvement of Sawyer Arena. Provided, however, that in the event revenues generated by use or operation of the facilities during the initial term or any renewal term of this Agreement shall be insufficient to pay the facilities' -3- operating expenses, management fees and rentals for that term as provided above, the CITY shall have the right to apply, and to require application of, the unexpended balances on deposit in the respective capital reserve accounts to make up the deficiency concerned. ARTICLE IV AGENCY RELATIONSHIP: INBENNITY: INSURANCE It is understood and agreed that for purposes of managing and maintaining the facilities as provided herein, the CITY and its employees shall be deemed to be agents of BYHA; and that BYBA shall be and remain primarily responsible to investigate, answer, defend and satisfy any and all claims, complaints, suits or judgments, respectively, arising out of operation of Sawyer Arena. Accordingly, for this purpose, BYHA agrees that it shall at all times maintain in force all insurance required under Article III of the parties' Lease dated April 1, 1991, as amended, herelmabove referred to. BYHA further expressly agrees that it shall defend, indemnify and hold harmless the CITY and any and all of the CITY•s employees engaged in management or maintenance of the facilities under this Agreement, from any and all claims, liability, damage, expense, cause of action, suite or judgments, by or on behalf of any person or persons, firm or firms, corporation or corporations rising in any manner out of performance or non-performance of this Agreement. The CITY agrees that during the term of this Agreement, it shall maintain in force workers' compensation insurance or self-insurance of the kind and amounts required by law, to cover all of the CITY's employees engaged in managing or maintaining the facilities under the provisions of this Agreement. The CITY shall also, during the term of this Agreement, maintain in force such fire, hazard and casualty insurance as shall be adequate, in the CITY'ssole opinion, to protect the parties in the event of loss of or damage to the facilities due to fire or other casualty. ARTICLE V TBRH ANO RENEWAL This Agreement shall become effective upon execution, and, with respect to the management and maintenance activities to be performed hereunder, shall be deemed to be in force for a one-year term commencing October 1, 1993. Thin Agreement may be renewed for consecutive annual terms commencing October 1st of each calendar year, subject to agreement of the parties concerning the annual management fee to be paid to the CITY under Article II above. This Agreement shall terminate if the parties shall fail to agree to the amount of the management fee to be paid for any renewal term prior to commencement thereof, or upon written notice given by either -4- 93-450 party given at least thirty (30) days prior to September 30th of any calendar year. All such terminations shall be deemed effective on October 1st of the calendar year concerned. ARTICLE VI NOTICES Notices to the CITY provided for in this Agreement shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid, to: City of Bangor, City Nall, 73 Harlow Street, Bangor, Maine, 04401; and notices to BYHA are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: The Bangor Youth Hockey Association, P.O. Box 1052, Bangor, Maine, 04402, with a copy thereof to Eaton, Peabody, Bradford 6 Veague, P.A., Fleet Center - Exchange Street, P.O. Box 1210, Bangor, Maine 04402-1210, or to such other address as the parties may designate to each other in writing from time to time. CITY shall maintain at all times in the offices of the Director of the City Parks c Recreation Department an up-to-date listing of the name address and telephone number for its current President, Rink Manager and all other persons responsible for the day-to-day operation of the arena. ARTICLE VII EFFECT ON PRIOR LEASE During the period this Agreement shall remain in effect, it shall be deemed to amen the parties' prior Lease dated April 1, 1991, as previously amended, hereinabove referred to; and in the ivent any provision of this Agreement shall be deemed to be nconsistent with provisions of the parties' said prior Lease, the provisions of this Agreement shall be deemed controlling. ARTICLE VIII EXECUTION OF AGREEMENT A. The CITY hereby represents and warrants that it has taken all necessary procedural and legal steps as required under all State, local and Federal laws and regulations whatsoever for the purpose of authorising the execution of this Agreement, and that the execution of this Agreement by the City Manager renders this Agreement a valid and binding document on the part of the City, of Bangor and is fully enforceable in all of its terms and conditions by Bangor Youth Hockey Association. sa B. BYRA hereby represents and warrants that it has taken all necessary procedural and legal steps as required under all State, local and Federal laws and regulations, and all necessary corporate action, to authorise the execution of this Agreement by one of its officers and that the execution of this Agreement is a binding and legal document on the part of Bangor Youth Hockey Association, and is fully enforceable in all of its terms and conditions by the City of Burger. IN WITNESS WHERBOP, the parties hereto have set their hands and seals the day and year first written above. CITY OF BANGOR By Title City Manager THE BANGOR YOUTH HOCKEY ASSOCIATION By witness Title -6-