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HomeMy WebLinkAbout1991-01-14 91-70 ORDERcK, w eaQ a v_ $i/ CnumJ A—.- 9 91—)0 Date 1-14-9.1 Item No. item/Subject: Authorizing Execution of New Lease Agreement with The Bangor Youth Hockey Association -- Hayford Park Responsible Department: Legal Commentary: The purpose of this Order is to formally authorize the execution of a new lease agreement with The Bangor Youth Hockey Association. .This agreement replaces the existing License Agreement which was approved and executed in September, 1990. Prior to the execution of the License Agreement, there w existing Lease Agreement between the parties beginning in 19861. This agreement is the final step in a process which involved a endment to the City's deed to the property i order to a oid any question a to the lease being in compliance with deed restrictions included in the original title documents. UeDart m Hev6 Manager's Comments: Gry nlnw associated Information: Order, Lease Budget approval: N rn,a .e n;.r Legal Approval: or sdiot IntroadFor CIS Page — of C1 Firstt Reading _ ❑ Referral 91-]0 A msaed m Cmamdm Saxl, January 16, 1991 CITY OF BANGOR (DtLi) @r4rr- Authorizing Execution of New Lease. Agreement With the Bangor Youth Hockey Association -- Hayford Park By 014 City CasneHaf Hu C4 ofBaaysr. ORDERED, THAT the City Manager is hereby authorised and directed, on behalf of the City of Bangor, to execute a cease Agreement with The Bangor Youth Hockey Association, acopy of said agreement being on file in the office of the City Clerk. IN CITY COUNCIL January 14, 1991 Consider nextmeeting. „mn— K IN CITY COUNCIL January ze, 1991 C der n mgeting. ITT CLERK IN CITY COUNCIL February 11, 1991 ne,y f tin CCLERK 91-]0 ORDER Title, .AutM1arizit% Execntlon of Nev, LeAaR. Agreement with the Banger Youth Hockey Association xayford Park,,,,,,,,, ........ d/ counmiiman IN CITY COUNCIL February 25, 1991 Passed as Amended. amended In the first lime.Ey deleting " I cted r / ITY COERK THIS LEASE, axecuted in duplicate, this _ day of January, 1991, by and between: - CITY OF BANGOR, a body politic and corporate, duly organized 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 referred to as "Lessor") WE BANGOR YOUTH HOCKEY ASSOCIATION, a non-profit corporation, duly organized and existing under and by virtue of the laws of the State of Maine, and having an office or place of business in said City of Bangor (hereinafter referred to as "Lessee"). W I T N E S S E T H: WHEREAS, the City of Bangor is the owner of Fairmount Terrace Park, so-called, and located in the City Of Bangor, County of Penobscot, State of mine (hereinafter sometimes referred to as the "Park"); and WHEREAS, Lessee desires to use certain premises at the Park for purposes of construction, operation and maintenance of an ice-skating arena; NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE I PREMISES The Lessor, for and in consideration of the rents to be paid and obligations to be performed by Lessee as hereinafter provided, does hereby grant unto Lessee, in its present condition, a lease to use the following: A. A certain parcel of land located in the City of Bangor, Penobscot County, State of Maine, located in Fairmount Terrace Park, so-called, together with all improvements thereon, as shown on Exhibit -A" attached hereto. B. Also: (1) the right to construct, operate and maintain the "Service Road" as shown on Exhibit "A" as the primary access route by persons on foot or motor vehicles to the subject premises; and (2) the right to extend utility systems in, on or over the "Service Road" right-of-way; and (3) the non-exclusive right to use, in common with others, the "Parking Lot' adjacent to Thirteenth Street as shown on Exhibit "A" for the parking of motor vehicles by persons attending r participating in authorized activities at the arena; and (4) the right to construct or install additional access routes, utility systems, and parking. areas at such locations as may be approved by the Parks & Recreation Director. ARTICLE II This lease shall repeal and replace a prior lease between the parties, dated November 19, 1986, and a license between the parties dated September 11, 1990, and shall become effective on the date of execution by the parties. This lease shall remain in full force and effect until the last day of September, 2026; provided, however, this lease may be terminated by Lessor on default of the Leasee as provided in Article XIII of this agreement. ARTICLE III OPTION TO EXTEND Lessee shall have the option to extend this lease for a further term, subject to the terms and Conditions contained herein, to the last day of September, 2036, by written notice of Lessee's election to exercise said option delivered to Lessor no later than June 30, 2036. _ ARTICLE IV ANNUAL RENTAL In consideration of the nature of the use of the leased premises, as described hereinafter, Lessee shall pay rental as £ollowe, Date Amount February 11 1991 $ 9,450.00 August 1, 1991 46,300.00 February 1, 1992 _ 4,900.00 August 1, 1992 44,900.00 February 1, 1993 3,500.00 August 1, 1993 103,500.00 February 1, 1994 1,050.00 Thereafter, a nominal rental of $1.00 on the annual _ anniversary date of this Lease. -2- ARTICLE V CONSTRUCTION DATER BUILDING DESIGN. USE AND OCCUPANCY A. All buildings, structures or improvements on the _ subject premises, shall be constructed in accordance with applicable City of Bangor Ordinances, except that the design and layout of all buildings, structures or improvements shall further be approved by the Parks y Recreation Director of the City of Bangor. The design and layout shall include a plan designating the exterior appearance, including building walla and landscaping. and driveways and parking lots, and shall be designed so as not to detract from the appearance and use of the surrounding areas for public park purposes. All plans required under this Section shall automatically become a part hereof and be attached as Exhibits upon approval by the Parka a Recreation Director. B. Lessee shall use, occupy and maintain all buildings, structures and improvements, together with land herein described, for purposes of operating anice-skating arena. In the scheduling of ice time, priority shall be given to the needs of the residents of the City of Bangor. All of the activities of the Lessee shall be operated totally within buildings on the subject premises, unless otherwise authorized by the Parks s Recreation Director. C. Lessee shall provide all necessary maintenance for all buildings, structures or improvements constructed thereon. Lessor shall provide routine maintenance and trash collection for all outdoor areas on the subject premises. Lessee shall provide a sufficient number of containers and cooperate with the Lessor in maintaining the premises in an orderly fashion. Lessee shall be responsible for the removal of all trash after special events conducted or sponsored by the Lessee. -Lessor shall provide all necessary snow plowing for the subject premises. D. All vehicles belonging to invitees, officers and employees of the Lessee shall only be parked in designated spaces in parking areas on the promises or in other parking areas as the Parks a Recreation Director may designate from time to time. E. In the use and occupancy of the subject premises, Lessee, its officers and invitees, shall comply with all applicable local regulations, including but not limited to Chapter VI, Article 12, Ordinances of the City of Bangor, relating to conduct in public parks. F. Leasee shall pay all utility costs resulting from the Lessee's use and occupancy of the subject premises. G. Lessee shall have the exclusive right to all fees and revenues generated from the operation of the subject premises. -3- H. Lessor, through its agents, shall have at all reasonable times access to go upon and inspect the subject premises and any other buildings, structures or improvements thereon. ARTICLE VI MECHANICS'. LIENS: TAXES 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 subject premises, and 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. Lessee, at its option, shall have the right to contest the validity or justice of any, such liens before paying the and to postpone payment thereof until final determination of any such proceedings. ARTICLE VII TITLE TO BUILDINGS STRUCTURES, IMPROVEMENDS AND PERSONAL PROPERTY Title to the improvements constructed on the subject premises by the Lessee and all personal property used in the operation of the arena during the term of this license, or any extension thereof, shall automatically vest in the City of Bangor at the time of installation, construction or delivery to the subject premises unless Lessee shall, prior to the construction of any buildings, structures or improvements and prior to the use of such personal property, Lessee shall have notified Lessor that Lessee wishes to grant a security interest in such property to a third party, in which event Lessor covenants and agrees to recognise the security interest of the third party in such property and to agree to allow the third party to remove the property in the event of default by the Lessee, provided the third party repairs any damage to the subject premises cused by the removal of such property. Lessee shall, if requested by Lessor, from time to time, cause additional documents of title to be executed on its behalf to complete the transfer of title to such items to the City. ARTICLE VIII SIGNS The Lessor recognises the need of the Lessee to provide reasonable signs in conjunction with the use, occupancy and maintenanceof the subject premises by the Lessee and to that end agrees that signs may be installed at locations in the Park, either on or o££ the subject premises as may be approved by the Parks a Recreation Director; provided, however, all signs shall comply with applicable regulations under City of Bangor ordinances and the Laws of the State of Maine. -4- ARTICLE IN NONDISCRIMINATION Lessee in the use and occupancy of the subject premises shall not on the grounds of sex, race, color, creed or national origin or any other manner prohibited by law, discriminate or permit discrimination against any person or group of persona in any manner. COVENANT OF OUIET ENJOYMENT The Lessee, subject to the terms and provisions of this License, on payment of the rent, and observing, keeping and performing all the 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 subject premises during the term and any extension hereof without hindrance or ejection. ARTICLE XI DAMAGE BY FIRE OR OTHER CASUALTY Lessor covenants and agrees that in the event of destruction or damage of the Improvements on the subject premises, r any part thereof, and as often as the improvements shall be destroyed or damaged, by fire or other casualty, the Lessee shall have the right, but not the obligation, to rebuild and repair the .improvements for occupancy. If Lessee elects not to rebuild and repair, Lessee shall have the option to terminate this lease and shall so notify Lessor within one hundred and twenty (120) days after said fire or other casualty. In such event Lessor shall have the right, after notice toLessee, to cause Lessee to demolish all structures to ground level, remove all foundations and to remove all debris from said demolition and removal from the subject premises. In the event Leasee does not elect to so terminate, Lessee shall within one hundred and twenty (120) days of said fire or other casualty give notice to Lessor of. such election. All improvements shall be restored to their state and condition prior to said fire or other casualty, or shall be constructed in accordance with plans approved by Lessor. ARTICLE XII INDEMNITY, LIABILITY INSURANCE Lessee shall indemnify and save harmless the Lessor and all of its employees and agents from and against any and all claims, liability, damage, expense, cause of action, suits or judgments, by or n behalf of any person or persons, firm or firms, corporation or corporations in or about the subject premises and resulting from -5- as of the Lessor's former estate, and expel the Lessee and those claiming through or under it and remove its or their effects (forcibly If necessary) without being deemed guilty of any manner of trespass, and 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 XIV ASSIGNMENT. SALE AND SUBLETTING The Lessee shall not at any time assign, sell, convey or transfer this lease or any interest therein, or sublease or sublet or rent the premises, ox any part thereof, without the prior written consent of the Lessor. In the event the Lessor does consent to such an assignment or transfer of this Lease, Lessee shall not be relieved from any obligations under this Lease, unless specifically released by the Lessor at the time of such assignment r transfer. Nothing herein shall be construed to prohibit or require prior approval by the Lessor of the rental of the premises for ice skating purposes for periods of less than 24 hours. ARTICLE EV WAIVER Failure onthe part of the Lessor to complain of any action or -action on the part of Lessee no matter how long the same may continue, shall never be deemed to be a waiver by. the Lessor of any of Lessor's rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by Lessor, shall be construed as a waiver of any of the other provisions hereunder, and that a waiver at any time of any of the provisions hereof shall not be construed at any subsequent time. of the same The approval of Lessor to or of any action by the Lessee requiring the Lessor's consent or approval, shall not be deemed to waive or render unnecessary the Lessor's consent or approval to or of any subsequent aimilet act by the Lessee. ARTICLE "I EL'IVA" Notices to the Lessor provided for in this lease shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid, to: City of Bangor, City Hall, 73 Barlow Street, Bangor, Maine, 04401; and notices to the Lessee are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: The Bangor Youth Hockey Association, P. 0. Box 1626, Bangor, Maine 04401, with a copy thereof to Rudman 6 Winchell, P. 0. Box 1401, Bangor, Maine, 04402-1401, or such other address as. the parties may designate to each other in writing from time to time. -7- the negligence of the Lessee, or any representative, invitee, officer, employee or agent of Lessee. Lessee shall also provide, at its expense, public liability insurance coverage for the leased premises to be in effect during the entire term of this Lease, as may be extended, with the Lessor as named insured, with coverages for personal injury and property damage of at least $300,000 per DEFAULT ARTICLE XIII It is covenanted and agreed that; (1) If the Lessee shall neglect or fail to pay the rent o other charges payable hereunder and such default shall continue for a period of thirty (30) 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 on its part to be performed, or observed, and such neglect or failure shall continue for a period of thirty (30) days after written notice thereof by Lessor, or 1£ such covenants, terms, provisions or conditions cannot be performed or observed within said thirty (30) day period, if Lessee fails to diligently prosecute the curing of such neglect or failure; or (3) If the estate hereby created shall be taken on .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 in 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 for a reorganisation of the Lessee under provisions of the Bankruptcy Act now or hereafter enacted; Or (8) If the Lessee shall file a petition for such reorganization or for arrangements under any provision of the Bankruptcy Act new or hereafter enacted, then, in any of the said cases the Lessee may be considered in default hereunder, and the Lessor lawfully may, Immediately 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 -6- Lessee shall maintain at all times in the offices of the Director of the City Parks a Recreation an up-to-date listing of the n address and telephone number for its current President, Pink.Manager and all other persons responsible for the day-to-day operation of the arena. ARTICLE XVII INVALIDITY OF PARTICULAR PROVISIONS If any terms or provisions of this lease or the application thereof to any person or circumstances to any extent, shall be determined by a court of law to be invalid or unenforceable, the remainder of this lease or the application of such terms and provisions to persons or circumstances other than to 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 Will 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 enure 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 XIX GOVERNING LAW 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 exist. ARTICLE XX EXECUTION OF AGREEMENT A. The Lessor 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 License, and that the execution of this lease by the City Manager renders this Lease za valid and binding document on the part of the City of Bangor and is fully enforceable in all of its terms and conditions by the Lessee. B. Lessee 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 authorize the execution of this lease by one of its officers and that the execution of this lease is a binding and legal document on the Lessee, and is fully enforceable in all of its terms and conditions by the City of Bangor. ARTICLE XXI MEMORANDUM OF LEASE Lessor and Leasee agree that this lease shall not be _..recorded, Lessor agrees that upon request by Lessee, it shall execute and deliver to Lessee a Memorandum of Lease in recordable form and in compliance with the provisions of .Title 33, Section 201 of the Maine Revised Statutes Annotated. IN WITNESS WHEREOF, 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