HomeMy WebLinkAbout1992-05-27 92-278 ORDERDate WMay 19, 1992 hem No. 92 2
Authorizing Dock Lease - Michael Delong
Item/Subject:
Community 6 Economic Development
Responsible Department:
Commentary:
Michael Delong has requested an additional one year term to
operate his docks from City waterfront property. Mr. Delong's
original Dock Lease was for a three year term ending in November
of last year.
The C&ED Committee considered the request at its May 4th
meeting and referred it to the Harbor Committee for its
recommendation. "a Harbor Committee voted unanimously at its
May 5th meeting to recommend on additional one year term for the
1992 season for a fee of $1,000. Authorization by the C&ED
Committee for the new one year term failed by a tie vote at the
Committee's May 10th meeting and the item was referred to the
full City Council for consideration.
Staff recommended against the new, additional one year term
because of continued concern about the stability of the bulkhead
at the Delong location, the concern that the City would not
realize sufficient revenues to support operation of the City's
recently acquired docks if Mr. Delong were allowed the
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92 278
opportunity to compete with the City for what appears to be a reduced
number of boating customers, and that the City wasn't obligated to
extend the term of Mr. Belong's Dock Lease beyond the original three
year period.
Members of the Harbor Committee felt the City had a good faith
obligation to grant Mr. Belong an additional one year term; that Mr.
Belong provided several other services to r creational boaters i
addition to operation of his dock facilities and that for that reason
it was important to retain his presence on the Bangor waterfront; and
that Mr. Belong would not be competing with the City's operation as
it was unlikely that Mr. Belong's customers would use the docks
acquired by the City.
Mr. Belong made it clear to the Harbor Committee that he intended
to sell his docks to the owner of the Harborside Restaurant in Brewer
after the necessary permits were
secured to install the docks at that
location and that he would not be requesting permission to install
the docks on City property again next year. He also -stated that he
would remain in Bangor for the full 1992 season if his request was
granted.
The staff also recommended that, if Mr. Belongs. request were
granted, a significant increase in the previously charged annual fee,
of $800 be imposed to offset probable revenue losses to the City.
Mr. Belong had related to the Harbor Committee that he only had five
paying customers last year and could not afford to pay the City any
more than $1,000
The City engineer feels the condition of the bulkhead isno worse
than last year. If the safety of the bulkhead is no longer
concern, the primary remaining reason for recommending denial of the
request is the probable loss revenue the City could experience from
allowing Mr. Belong to compete with the City's operation. It i
projected that the City needs to rent 450 feet of dock space at $55
per foot of boat length (15 boats of 30 foot length) to produce
adequate revenues to operate the acquired facility.
Aadpmd to Coumegm _ 5axl My 27,1992 92278
CITY OF BANGOR
(DTlf) @rbert _Authorizing Dock Lease Michael Delong
By w IXy Comeau ofw My of Buzzer;
OSDEW9
THAT the City Manager is hereby authorized to execute a nock
Lease by and between the City of Bangor and Michael Delong,a copy of
which is on file in the Office of the City Clerk, for a tern
beginning on May 29, 1992 and ending on November 15, 1992 for a fee
of Dollars.
IN CITY COUNCIL
Nay 27. 192
Vote t0 Amend by Adding $1,000.09
in apace provided Passed by the.,
following yes and no votes.
Councilors voting yes: Baldaccil•
Bragg, Frenkel, goal and Soucy.
Councilor voting m: Blanchette.
Councilors absent: Cohen, Sawyer
and Stove.
Vote for Passage as Amended passed
by the following yes and no Votes.
Councilors voting yes: Baldacci,
Bragg, Frankel, Saxl, Soucy.
Councilor voting no: Blanchette.
Coundlove absent: Cohen, Sawyer
92-278
U R DER
Title,
Authorizing Dock Lease - Nichael Belong
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92 278
DOCS LEASE
THIS INDENTURE OF LEASE, executed in duplicate, this day
of , 1992, by and between,
CITY OF BANGOR, a body politic and corporate, duly organised and
existing under and by .virtue of the laws of the State of Maine,
and being located in the County of Penobscot, State of Maine,
(hereinafter sometimes referred to as -Lessor-),
AND
MICHAEL DELONG, of Brewer, County of Penobscot, State of Maine
(hereinafter sometimes referred to as "Lessee"), -
WITNESSETH,
WHEREAS, the City of Bangor is the owner of certain promisee
located on Front Street in Bangor, next to the Penobscot River, as
more fully described in Resolution of Condemnation No. 87-311 approved
by the Bangor City Council on August 24, 1987, recorded in Penobscot
Registry of Deeds in Volume 4098, Page 277, and being Lot 41, Map 431
on the City of Bangor tax maps; and
WHEREAS, the Lessee desires to lease a portion of said premises
for the purpose of operating floating dock facilities to be let only
to recreational boaters,
NOW, THEREFORE, the parties do mutually agree as follows:
ARTICLE I
PREMISES
The Lessor, for and in consideration of the rents to be paid under
Article III and other obligations to be performed by the Lessee a
hereinafter provided, does hereby lease, demise and let unto Lessee
the following described property in its present condition, vizz
Parcels "A", "B", and "C" as further described on Exhibit A attached
to this Lease.
ARTICLE II
TERM
TO HAVE AND TO HOLD the demised premises unto the Lessee for one
(1) term as follows:
Bay 29, 1992 - November 15, 1992
ARTICLE 111 92 278
RENTAL
A. Lessee shall pay to Lessor as rental for the demised premises
during the term of this Lease the sum of Dollars
($ ) which amount shall be paid by Lessee to the Lessor in
four (4) equal installments of Dollars ($),
the first installment to be paid at the time of execution of this
Lease by the Lessor, and each of the remaining installments due by the
15th day of June, July and August of 1992. Failure to submit
installment payments by the due date will result in automatic
termination of this Lease.
B. Lessee shall pay directly to the State of Maine Department of
Conservation all fees, including any annual processing fees, charged
by that agency for rent of submerged lands adjacent to Lessee's said
facility, and shall reimburse the Lessor for any such fees paid
directly by the Lessor to such agency.
ARTICLE N
USE. oCCDPANCY AND IMPROVEMENT OF PREMISES
A. The Lessee shall have the exclusive right to use, occupy and
maintain the area designated as Parcel ^A" on Exhibit A attached
hereto for the Purposes of constructing, operating and maintaining a
floating dock system to be used for the purpose of dispensing ice and
other supplies to recreational boaters; performing minor maintenance
and providing other service to recreational boats; and to provide
seasonal floating dock space to be let to recreational boaters. Said
dock facility shall have a maximum total length of 192 feet plus all
necessary structural supports, walkways and gangways. Prior to the
installation of the dockage facilities, the Lessee shall provide and
install an anchorage system to stabilize the upriver pier against
movement, said anchorage to be approved by the City Rngineer.
B. It is understood between the parties that Rental of docking
space by the Lessee to others shall be on a seasonal basis only, and
shall not include rentals on a daily, overnight or other temporary
basis. Any temporary stops by others at the demised premises shall be
subject to approval by the Bangor Harbor Master, and should the Harbor
Master approve such stops, Lessee agrees to pay to the Lessor an
additional rental at the same rates then prevailing for temporary
rental of municipal dock space.
92 278
C. Lessee shall have the right, in common with others, to use the
area designated as Parcel "C" on Exhibit A for the purpose of ingress
and egress from Front Street.
D. Lessee's right to let or operate the floating dock facilities
shall be limited to the term of this Lease. Lessee shall not be
authorized to let or rent further space or to make use of the City's
bulkhead an Parcel "A" except to secure docking facilities authorized
hereunder.
It is expressly agreed that any boats or other watercraft
permitted to be docked at Lessee's floating dock facilities shall be
tied parallel to the dock. Boats shall not be tied side by aide. it
Is further agreed that if operation of Leased's said facilities shall
Interfere with the proper use of any City of Bangor moorings, Lessee
shall be responsible to relocate such moorings, at Lessee's sale
expense, to other locations approved by the Harbor Master. The City's
Harbor Master shall in his sole judgment determine whether such moor-
ings are interfered with, and shall also be responsible to approve the
final location of Lessee's floating dock facilities.
E. Asa condition of this Lease, Lessee shall apply for and
receive all State and Federal permits which may be required prior to
installation and operation of the facilities as described above, and
shall pay all fees pertaining thereto.
F. Lessee, in the use and occupancy of the Leased premises, shall
comply with all local, State and Federal Laws, including all applica
his regulations issued by the Maine Department of Environmental Protec-
tion, the United States Environmental Protection Agency, the United
States Coast Guard, and any other competent regulatory authority.
G. Lessee shall not use said Parcels "A', "B" and "C" for any
purpose, except as authorized under this Lease, without the prior
express written consent of the Lessor. Any use Of the said parcels
contrary to applicable laws, regulations or ordinances of the City of
Bangor is prohibited.
H. Lessor, through its agents, shall have at reasonable times the
right, upon renable notification to the Leasee, to go on and
inspect the entire premises with an authorized representative of the
Lessee.
I. Lessee acknowledges that the leased premises are subject to
periodic flooding and accepts all risks associated with such
condition.
ARTICLE V _ 92 2iy
MAINTENANCE ANN REPAIRS
A. Lessee shall, at his sole expense, throughout the term hereof,
keep and maintain the demised premises, including the docking
facilities to be installed in good order and repair, and in tenantable
condition, damage by accident, fire and casualty and reasonable wear
and tear alone excepted. Lessee shall provide for daily removal of
rubbish from the premises.
S. The phrase nable war and tear" used in Paragraph A of
this Article as an exception to the obligations of the Lessee shall
not be construed to relieve Lessee of the responsibility for providing
repairs of a routine and regular nature which may from time to time be
necessary, nor to provide maintenance to the demised premises of a
nature and degree ordinarily sufficient to prevent damage, breakdown,
failures, malfunctions or disrepairs; nor shall any exception o
special provision of this Lease be construed to mean that Lessor would
be required to carry out maintenance and repairs to the facilities to
be installed.
C. During the Lease period, the City will monitor the condition
of the existing wood bulkhead, and will check for any Possible
movement of the existing concrete piers which secure the dock system
to the share. If, at any time, significant movement (>6") is detected
in either the position of the piers or the top of the wood bulkhead,
or if any portion of the wood bulkhead adjacent to the dock system
starts to fail, then the City Engineer may give ten (10) days written
notice to the Lessee to cause the dock system to be disconnected from
the concrete piers.
ARTICLE VI
UTILITIES
Lessee shall pay the costs of extending all utility systema
necessary to operate the leased premises as contemplated hereunder,
and all costs of all utilities furnished to and consumed by Lessee on
the demised premises, including electricity, gas, heat, water and
sewer user fees.
ARTICLE VII
Fi1X4:r;�JSN-'1128 fSE]
The Lessee agrees to promptly discharge (either by payment or the
filing of a necessary bond or otherwise) any mechanics', materialman's
or other liens as may be placed against the demised premises, any
buildings, structures or improvements thereon, which liens may arise
out of any payment due for labor, services, materials, supplies or
equipment which may have been furnished to or for the Lessee.
Provided, however, the Lessee at his option, shall have the right to
contest the validity or justice of any such liens before paying the
same, and to postpone payment thereof until final determination of any
such proceedings.
ARTICLE VIII 92 278
TITLE TO DOM
Ownership of the dockage facilities to be installed, and all
Utility systems thereon, shall remain in she Lessee throughout the
term of this Lease, and all such facilities and systema installed by
the Lessee may be removed by the Lessee at the end of the Lease term.
Such removal shall be at Lessee's sole cost and expense. Title to any
property not so removed by the Lessee within sixty (60) days following
termination of this Lease shall vest absolutely and irrevocably in the
Lessor. Lessor may thereafter dispose of such property in any manner
it shall deem proper, and Lessor may charge Lessee with its costs of
removing and disposing of any such property abandoned by the Lessee as
may pose a present or future hazard to the health or safety of any
inhabitants of the City, or to free navigation of the Penobscot River,
r the removal of which may be required by any competent agency of
State orFederal Gove savant. At the conclusion of the Lease tenni
Lessee shall return the leased premises as nearly as possible to their
original condition, reasonable wear and tear alone excepted.
ARTICLE IX
SURRENDER OF POSSESSION
In the event the City requires possession of the leased premises
or a portion thereof as part of a redevelopment project or bulkhead
reconstruction project, the City shall have the right, upon forty-five
(45) days' notice to the Lessee, to terminate this Lease. The City
shall make every reasonable effort to assist and permit the Lessee to
relocate his dockage facilities at another location on adjacent
City -owned property and if such relocation Is feasible enter into a.
new lease agreement for such location subject to the same terms and
conditions for the remainder of the lease term. The costa of such
relocation shall be borne by the Lessee.
ARTICLE X
NONDISCRIMINATION
As a condition of this Lease, or any extension thereof, Lessee, in
the v and occupancy of the leased premises, shall not on the grounds
of sexe o
race, color, creed or national origin or any other matter
prohibited by law, discriminate or permit discrimination against any
person or group of persons in any manner.
ARTICLE XI
COVENANT OF QUIET ENJOYMENT
The Lessee, subject to the terms and provisions of this Lease, on
payment of the rent, and observing, keeping and performingall the
92 27,
terms and provisions of this Lease on its part to be observed, kept
and performed, shall lawfully, peaceably and quietly have, hold,
occupy and enjoy the demised premises during the term and any
extension thereof without hindrance or ejection by the Lessor or any
persons lawfully claiming under the Lessor.
ARTICLE XII
LIABILITY AND PROPERTY DAMAGE INSURANCE
As a condition of this Lease, Lessee during the entire term of
this Lease or any extension thereof shall maintain, at his expense,
insurance of the following type with companies authorised to do busi-
ness in the State of Maine for the protection of the City of Bangor,
who shall be named as an additional insured against all claims,
losses, costs or expenses arising out of injuries to persons whether
or not employed by Lessee or damage to property whether resulting from
acts, omissions, negligence otherwise of the Lessee, its directors,
officers, employees and agents and arising from Lessee's use of the
premises.
Comprehensive Public Liability Insurance:
$ 300,000 per person
$1,000,000 per accident
Lessor shall not be required to provide insurance coverage on the
leasehold improvements or any property owned by the Lessee or third
parties as may be located within the leased premises. Prior to making
any entry upon the demised premises, Lessee shall furnish to the City
of Bangor evidence in the form of certificates of insurance of the
existence or continuance in force of the insurance required hereunder;
Such certificates shall indicate that the insurance required under
this Article has been purchased and premiums paid in advance for the
full term of this Lease.
ARTICLE XIII
A. Lessee shall indemnify, protect, defend and hold harmless the
Lessor, its directors, officers, agents and employees from and against
any and all liabilities, losses, suits, claims, judgments, fines or
demands arising by reason of injury or death of any person or damage
to any property, including all reasonable costs for investigation and
defense thereof (including but not limited to attorney's fees, court
costs, and expert witness fees), of any nature whatsoever arising out
Of or incident to this Lease and/or the use r occupancy of the leased
premises as a result of the acts or omissions of Lessee's officers,
agents, employees, contractors or subcontractors, unless such injury,
death, or damage is caused by the negligence of the Lessor, its
officers, directors, agents or employees. The Lessor shall give
Lessee reasonable notice of any such claims or actions. The
provisions of this Article shall survive the expiration or early
termination of this Lease.
92 27F
B. Lessor shall indemnify, protect, defend and hold harmless the
Lessee, its directors, officers, agents and employees from and against
any and all liabilities, losses, suits, claims, judgments, fines or
demands arising by reason of injury or death of any person or damage
to any property, including all reasonable costs for investigation and
defense thereof (including but not limited to attornes fees, court
costs, and expert witness fees), of any nature whatsoever arising out
of or incident to this Lease and/or the use or occupancy of the leased
premises as the result of the acts or omissions of Lessor's officers,
agents, employees, contractors or subcontractors, unless such injury,
death, or damage is caused by the negligence of the Lessee, its
officers, directors, agents or employees. The Lessee shall give
Lessor reasonable notice of any such claims or actions. The
provisions of this Article shall survive the expiration or early
termination of this Lease.
ARTICLE XIV
DEFAULT
It is covenanted and agreed that:
(1) If the Lessee shall neglect or fail to pay the rent or other
charges payable hereunder and such default shall continue for
a period of ten (10) days after written notice thereof by
Lessor; Or
(2) If Lessee shall neglect or fail to perform or observe any of
the other covenants, terms, provisions, or conditions an its
part to be performed, or observed, and such neglect or
failure shall continue for a period of ten (10) days after
written notice thereof by Lessor, or if such covenants,
terms, provisions or conditions cannot be performed or
observed within said ten (10) day period, if Lessee fails to
diligently prosecute the curing of such neglect or failure;
or
(3) If the estate hereby created shall be takenon execution or
by other process of law; or
(4) If the Lessee shall be declared bankrupt or insolvent
according to law; or
(5) If any assignment shall be made of the property of the Lessee
for the benefit of creditors; or
(6) If a receiver, guardian, conservator, or trustee i
bankruptcy or other similar officer shall be appointed to
take charge of all or any substantial part of the Lessee's
property by a court of competent jurisdiction; or
(7) If a petition shall be filed fora reorganization of the
Lessee under provisions of the Bankruptcy Act now or
hereafter enacted; or
92 27.;
(8) If the Lessee shall file a petition for such reorganization
or for arrangements under provisions of the Bankruptcy Act
now or hereafter enacted, then, in any of the said cases
(notwithstanding any license of any former breach ofcovenant
enant
or waiver of the benefit hereof or consent in a former
instance), the Lessee may be considered in default hereunder,
and the Lessor lawfully may, lImnediately or at any time
thereafter, and without demand or notice, enter into and upon
the said premises or any part thereof, in the name of the
whole and repossess the same as of the Lessor's former
estate, and expel the Lessee and those claiming through or
under his and remove his or their effects (forcibly, if
necessary) without prejudice to any remedies which might
otherwise be used for arrears of rent or preceding breach of
covenant, and upon entry as aforesaid, this Lease shall
terminate.
ARTICLE Xy
ATTORNEY'S FEE
The Lessee shall pay to the Lessor a reasonable attorney's fee in
the event the Lessor employs an attorney to collect any rents due
hereunder and secures a judgment in connection with the collection of
said rent, or to protect the interest of the Lessor in the event
Lessee is adjudged basdcrupt, or legal process is levied upon the
interest of the Lessee in this Lease or in said premises, or in the
event Lessee violates any of the terms, conditions or covenants on the
part of the Lessee herein contained, provided that Lessee fails to
promptly correct the violation of any term, condition or covenant
after receipt of notice that it is in violation thereof. Lessor will
pay to Lessee a reasonable attorney's fee if Lessee employs an
attorney if the Lessor violates any of the terms, conditions o
covenants on the part of the Lessor herein contained, provided said
Lessor fails to promptly correct the violation of any term, condition
or covenant after receipt of notice that it is an violation thereof.
ARTICLE XVI
ASSIGNMENT. SALE AND SUBLETT2NG
The Lessee shall not at any time assign, sell, convey or transfer
this Lease or any interest thereon, or sublease or sublet or rent the
premises, or any part thereof, without the prior written consent of
the Lessor, which consent
ent will not be unreasonably withheld. Lessor
n
specifically consents the assignment of this Lease to a corporation
to be formed by the Lessee. Notwithstanding other provisions of this
paragraph, Lessor reserves the right to deny pormission to sublet if,
In the City's sole opinion, the party proposing to sublet the demised
premises shall not give sufficient evidence of its capacity to fulfill
all the terms and conditions of this Lease.
ARTICLE XVII 92 278
A. Failure on the part of the Lessor to complain of any action or
non -action on the part of the Lessee no matter how long the same may
continue, shall not waive any of Lessor's rights under this Lease.
Waiver at any time of any of the provisions hereof by Lessor, shall
not be construed as a waiver of any other provisions, and shall not be
construed at any subsequent time as a waiver of the same provisions.
Lessor's approval of any action by the Lessee requiring the Lessor's
consent or approval shall not waive the Lessor's rights to approve or
consent to any subsequent similar act by the Lessee.
B. Failure on the part of the Lessee to complain of any action o
non -action on the part of the Lessor no matter how long the same may
continue, shall not waive any of Lessee's rights under this Lease.
Waiver at any time of any of the provisions hereof by Lessee, shall
not be construed as a waiver of any other provisions, and shall not be
construed at any subsequent time as a waiver of the same provisions.
Lessee's approval of any action by the Lessor requiring the Lessee's
-
consent or approval shall not waive the Lessee's rights to approve or
consent to any subsequent similar act by the Lessor.
ARTICLE %VIII
NOTICES
Notices to the Lessor provided for in this Lease shall be
sufficient if sent by registered or certified mail, return receipt
requested, postage prepaid, addressed to, Director of Community
Development, City of Bangor, Bangor City Mall, 73 Barlow Street,
Bangor, Maine 04401; and notices to Lessee, are to be sent by
registered or certified mail, return receipt requested, postage
prepaid, addressed to: Michael Delong, Rt. 1, Box 450, Brewer Lake
Road, Orrington, Maine 04474, or to such other respective addresses as
the parties may designate to each other in writing from time to time
w�r44mnsu:�
FIJI.lai J1;Y34N1 a\7]TH+YFYi�PFY
If any term or provisions of this Lease or the application thereof
to any person or circumstances to any extent, is held to be invalid or
enforceable, theremainder of this Lease or the application of such
terms and provisions to persons or circumstances other than those to
which it is held invalid or unenforceable shall not be affected
thereby and each term and provision of this Lease shall be valid and
be enforceable to the fullest extent permitted by law.
ARTICLE XX 92 278
CONSTRUCTION
The headings appearing in this Lease are intended for convenience
and reference only, and not to be considered in construing this Lease.
Nothing contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between the
parties hereto, it being understood and agreed that neither the method
of computation of rent nor any other provision contained herein or any
acts of the parties hereto shall be deemed to create any relationship
between the parties hereto other than the relationship of landlord and
tenant.
ARTICLE XXI
[eNIAe`Ii02fR\^1
This Lease shall be governed exclusively by the provisions hereof
and by the laws of the State of Maine, as the same may from time to
time be amended.
ARTICLE XXII
EXECUTION OF LEASE
The Lessor hereby represents and warrants that it has taken all
steps as required by law to authorise execution of this Lease, by its
undersigned City Manager, and that this Lease is binding upon the City
of Bangor and is fully enforceable in all of its terms and conditions
by the Lessee.
MISCELLANEOUS
This Lease supersedes all previous leases between the parties or
their predecessors relating to the Lease of the City's dock and
bulkhead space. This Lease embodies the parties' full understanding
as to their respective rights and obligations respecting such Lease.
IN WITNESS WHEREOF, the parties hereto have set their hands and
seals the day and year first written above.
CITY OF BANGOR
Edward A. Barlett
City Manager
Michael Delong
10