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HomeMy WebLinkAbout1991-07-08 91-273 RESOLVEDate 7-B-91 V, Item No. 91-273 Item/Subject: Acceptance of Gift from Stephen Ring - Hayford Park Responsible Department: Legal Commentary: This Resolve would accept Stephen King's donation of a baseball diamond, grandstand and related improvements to be constructed at Hayford Park. A draft Agreement defining the conditions of the gift has been circulated for review. Mr. Ring's attorney, Joe Walsh, has raised some additional concerns, which will be addressed in a final draft to be presented to the Council on Monday night. �ev peyan. ntx e VU Manager's Comments: �}1 . '..n 1 n!1 �^/�-.�p- U ®�Cs.p.,peztL 4AO e Associated Information: Resolve.); Budget Approval: Fimn" Dacron Legal Approval: efor Shoe�r �t girvn�t 1� r+Kc�i{.r ie� Zcittv y ssoaca . � ip�l d,pF+,}�xu,w,rF. Asat. Introduced For ®Passage ❑ First Reading _ Page of ❑ Referral -- Hayford Park By the City Coauit of Ow City OfB"mS RESOLVED, WHEREAS, the City of Bangor is the owner of Hayford Park; and WHEREAS, Stephen King wishes to donate to the. City certain improvements to said Hayford Park, said improvements consisting of an NCAA regulation -sized baseball diamond, grandstand, lighting and related facilities; and WHEREAS, the City of Bangor wishes to accept Stephen King's generous gift, NOW, THEREFORE, By the City Council of the City of Bangor RESOLVED, THAT the City Manager is hereby authorized and directed, on behalf of the City of Bangor, to take all necessary action to accept a gift for improvements to Hayford Park, in accordance with the desires of the donor, Stephen King, as expressed in an agreement to be executed between the parties and on file in the office of the City Clerk. 91-2]3 Assigned to Councilor Saxl, July B, 1991 _ CITY OF BANGOR (TITLE.)BSOlUB; Ac pt ce f Gift 1. from Stephen King -- Hayford Park By the City Coauit of Ow City OfB"mS RESOLVED, WHEREAS, the City of Bangor is the owner of Hayford Park; and WHEREAS, Stephen King wishes to donate to the. City certain improvements to said Hayford Park, said improvements consisting of an NCAA regulation -sized baseball diamond, grandstand, lighting and related facilities; and WHEREAS, the City of Bangor wishes to accept Stephen King's generous gift, NOW, THEREFORE, By the City Council of the City of Bangor RESOLVED, THAT the City Manager is hereby authorized and directed, on behalf of the City of Bangor, to take all necessary action to accept a gift for improvements to Hayford Park, in accordance with the desires of the donor, Stephen King, as expressed in an agreement to be executed between the parties and on file in the office of the City Clerk. IN CITY COUNCIL July 0, 1991 Agreement amended by Substitut.. On and Passed. Resolve Passed as Amended. Amended by adding Subject to the Approval of the City Solicitor: and city Manager. CITY 91-2)3 R E S O L V E Acceptance of Gift from Stephen King Hayford Park V 93 AGREEMENT THIS AGREEMENT made in duplicate this_day of duly, 1991, by and between STEPHEN XING of Bangor, Maie, and the CITY OF BANGOR, a municipal corporation organized and existing under the laws of the State of Maine (hereinafter "BANGOR"), W I T N E S¢ E T H: WHEREAS, STEPHEN XING wishes to donate to BANGOR Certain improvements to the City's existing Hayford Park, said improvements consisting of a baseballdiamond, grandstand, lighting and related facilities; and WHEREAS, BANGOR wishes to accept Mr. King's generous gift, NOW, THEREFORE, to better memorialize the terms of the gift and the obligations of the respective parties upon acceptance, the parties hereby mutually agree as follows: ARTICLE I: DONATION OF IMPROVEMENTS STEPHEN KING hereby offers and agrees to donate to BANGOR certain improvements to BANGOR'S existing Hayford Park, consisting of an NCAA regulation -size baseball diamond, grandstand, bathrooms, concession stand, lighting and fencing (hereinafter "improvements°) as depicted is the several plans attached to this Agreement a "Exhibit A." STEPHEN KING'S donation shall be effective upon acceptance of this Agreement by BANGOR and upon BANGOR'S acceptance of the improvements in accordance with Article VI below. Upon final completion and acceptance of the improvements, legal title to the improvements shall vest in BANGOR without right of reversion to STEPHEN KING. It is mutually agreed, however, that the improvements shall be maintained by BANGOR for use as a public baseball diamond and for related purposes, as more fully described and for the term stated in Article II below. ARTICLE II: USE OF IMPROVEMENTS BANGOR agrees that upon its final acceptance of the improvements, and for a period of not less than thirty (30)years thereafter, it will maintain and use the improvements as a public baseball diamond for the primary use of older children not having access to other NCAA regulation -size baseball diamond' facilities in the greater Bangor area, and for such ether public special event uses as may be approved inadvance by the Bangor City Council. Scheduling and use of the diamond shall be supervised by the Bangor Parks and Recreation Department in accordance with policies issued by that Department and the Bangor City Council and with the advice of the advisory commission to be established in accordance with Article IX below;provided that currently -existing Senior Little League, Coastal, Olympic, and American Legion baseball league teams from the greater Bangor area, and similar successor leagues and teams, shall be given priority in use of the diamond for their -E - regularly -scheduled and League play-off games. It is the intention of STEPHEN KING that the improvements donated by him shall be made available for scheduled games of such Leagues' teams at no charge; but it is mutually agreed that BANGOR may, in its sole discretion, charge reasonable fees for u of the baseball diamond for special event uses; night games, play-off and inter -league games; use by non -Bangor area teams and leagues; and for use by teams, leagues o groups above the high school level. In addition, BANGOR may impose reasonable regulations on the operation of any public concessions operated in connection with the improvements, and may require payment of a percentage of any concession receipts to BANGOR for BANGOR'S use in maintaining and operating the improvements. ARTICLE III, CONSTRUCTION OF IMPROVEMENTS In accordance with the donor's intention, it is mutually agreed that STEPHEN KING shall select a contractor or contIaCtOre and shall personally enter into all contracts necessary ary to complete construction of the improvements in accordance with "Exhibit A" attached. Construction shall be at STEPHEN KING'S sole personal expense, but not to exceed One Million Dollars ($1,000,000.00). STEPHEN KING shall assume all responsibility for payment of the selected contractor(s), and shall indemnify and hold BANGOR harmless from all claims of any persons arising under the contracts entered into, including mechanics lien claims, contract claims, and negligence claims of any person arising out of the activities of the selected contractor(s) or their agents or employees, as further provided in this Article and in Article v below. It is further mutually agreed that work on the improvements shall commence as soon s practicable after August 1, 1991, and that the projectshall thereafter proceed to completion, with a projected completion date of September 1, 1993. The parties further agree to the following terms to apply during actual construction of the improvements: 1. BANGOR hereby agrees that at all times during construction of the improvements, STEPHEN KING and his selected contractor(s) and subcontractor(s) shall have the following rights:. '(a) the exclusive right to enter onto, occupy and control those portions of Hayford Park desig- nated on 'Exhibit B" attached, including the right to erect temporary fences, restrict public access, and take other measures reasonably necessary to assure the safety and security of the site; (b) exclusive use of parking spaces and project staging areas designated on "Exhibit B'; -3- (c) the right to place and maintain necessary trailers e or temporary buildings for u nconnection with construction within,the areas designated in "Exhibit B'; and (d) the right to store materials and equipment and to arrange for temporary electric and other utility service to the areas designated in "Exhibit B•. It is further agreed that during construction of the improvements, BANGOR'S City Engineer or his designated representa- tives shall have the right, but not the obligation, to pericdically inspect the work to assure compliance with ^exhibit A" and other project plans. BANGOR shall also, upon request, supply such engineering and design assistance as may be necessary to assure satisfactory completion of the improvements in accordance with "Exhibit A". 2. Inconstructing the improvements, STEPHEN RING expressly agrees that he and his selected contractor(s) and subcontractor(s) shall: (a) Promptly submit to BANGOR copies of all building designs, plans, specifications and related documents for advance approval prior to the commencement of work on the project or the execution of any subcontract hereunder. (b) Comply with all building, plumbing, and electrical codes of the City of Bangor and obtain in advance all required permits, licenses and authorizations to proceed, to the extent required, from the City of Bangor, the State of Maine, and/or the United States. (c) Provide security to the premises by physically separating premises from the remaining portions of Hayford Park through the u of temporary wooden fences, signs, temporary lighting and other devices as needed to discourage trespassing. (d) Store and place all building supplies, including bricks and mortar, lumber and other materials of very nature, immediately when received, within the confines of the enclosed premises. STEPHEN RING agrees he will assure his selected contractor(S) do not leave any such material or supplies outside the enclosed premises or on parking areas, side- walks or lawns of the City of Bangor so as to create either a hazard or a nuisance. -4- (0) STEPHEN KING shall promptly pay and discharge all invoices and uncontested claims and demands for work, services or materials furnished in the construction of the improvements and will not permit any lien or other encumbrance to attach to said premises. (£) STEPHEN KING will assure and require his selected contractor(s) and subcontractor(s) to procure and maintain at all times during construction of the improvements workexs• compensation insurance coverage s required by the State of Maine for all of the contractor(s), and subcontractor (a) I employees. (g) STEPHEN KING additionally will assure that his selected contractor(s) are suitably bonded as necessary to assure satisfactory finalcompletion of the improvements. Bonds given by the selected contractor(s) shall run jointly to STEPHEN KING and BANGOR with the intention that such bonds shall be enforceable by either. (h) Upon final completion of the improvements, and prior to delivery of title to BANGOR, STEPHEN KING shall restore all areas of Hayford Park disturbed or other- wise impacted by construction as nearly as possible to their condition of such areas prior to con- struction, to include re -grading, sodding,s -seeding, and replacement of vegetation and structuresas necessary; provided that such restoration shall not be required as to areas occupied by the improvements to be constructed. STEPHEN RING further agrees to take all steps necessary to assure his contractor(s)' and subcontractor(s), compliance with all applicable State and Federal regulations, including applicable workplace safety and permitting requirements of any Federal or State regulatory authority. ARTICLE IV: INSURANCE During actual construction of the improvements and until final acceptance thereof by BANGOR, STEPHEN KING or his principal contractor will carry and maintain in full force and effect comprehensive public liability insurance covering bodily injury and property damage liability in a form and with an insurance company acceptable to BANGOR with limits of not less than Five Hundred Thousand ($500,000) Dollars for each person and one Million ($1,000,000) Dollars in the aggregate, for bodily injury or death liability for each accident, and Three Hundred Thousand ($300,000) Dollars for each accident or property damage liability. Insurance -5 - .shall be for the benefit of both STEPHEN KING and BANGOR against all liability claims arising from the, premises, and BANGOR shall be ..'named asan n additional insured o such policies of insurance. STEPHEN KING Agrees to deliver acopy or certification thereof to BANGOR prior to the commencement of work hereunder. STEPHEN KING agrees to require that any Contractor or subcontractor herein shall be similarly insured and to require evidence thereof before permitting such contractor o, subcontractor to commence work: ARTICLE V: INDEMNIFICATION - .STEPHEN KING shall defend, indemnify and hold BANGOR harmless from any .and all claims by any party for personal injury, _ death, or property damage .arising out Of or incident to the activities f STEPHEN KING,'his selected contractor(s) and ubcont t r(s) and their respective ploy gent _ occurring prior to final acceptance of the improvements by BANGOR. This indemnity shall include such claims for which timely notice is given after the date of SANGOR's final acceptance of the Improvements.' ARTICLE VI: DELIVERY EDLWWING FINAL COMPLETION Upon final completion of the improvements to the mutual satisfaction of BANGOR and STEPHEN KING, but in no event later than January 1, 1993, STEPHEN KING shall execute and deliver to BANGOR a deed of gift formally conveying title to the improvements to BANGOR. At such time, STEPHEN RING shall also execute and deliver to BANGOR written assignments of all warranties, contract rights, and any and all other rights pertaining to the improvements. Provided, however, that STEPHEN KING shall be deemed to have reserved and may expressly reserve such interest In the improvements or in any contract or warranty as may be necessary to maintain any suit or other action then pending to enforce any contract, warranty, or performance bond relating to the .improvements ARTICLE VII: MAINTENANCE OBLIGATIONS FOLLOWING DELIVERY Upon final acceptance of the Improvements and for thirty (30) years thereafter,. BANGOR shall maintain the improvements in a _- safe and seasonably playable condition, in accordance with applicable standards from time to time published by the National Collegiate Athletic Association (NCAA) for NCAA 'regulation" base - bell diamonds. In addition, BANGOR agrees to supply and maintain, at its own expense, water, sewer and electrical service needed in connection with use of the improvements during the regular baseball and play-off s ach year of the thirty (30) year term of this Agreement. Provided, however, that this Article shall not be deemed to prohibit BANGOR from charging or collecting fees for use of the improvements, including concession ,commissions, otherwise allowable under Article II above. -6 - STEPHEN KING hereby states his intention, but shall not be, deemed obligated, to assist in organizing such auxiliary fund raising efforts as may be necessary to supplement funds otherwise available to BANGOR to perform maintenance required under this Article. ARTICLE VIII' INDEMNIFICATION UPON FINAL ACCEPTANCE OF IMPROVEMENTS BANGOR agrees that it shall defend, indemnify and hold STEPHEN KING harmless from any and all claims for personal injury, death or property damage arising out of use of the improvements by any party, including any failure by BANGOR to maintain the same in a safe condition, occurring after the date of BANGOR's final acceptance thereof. Provided, however, that this Article shall not be deemed to waive any limitations on HANGOR's liability for such claims under the Maine Tart Claims Act, nor shall BANGOR's indemnity of STEPHEN RING under this Article extend to claims made against STEPHEN KING in amounts in excess of the limitations on recovery established under the Maine Tort Claims Act. ARTICLE IX: ADVISORY COMMISSION Following final acceptance of the improvements by BANGOR in accordance with Article VI above, BANGOR shall establish an advisory commission for the purpose of advising the City's Parks and Recreation Department on issues of maintenance, scheduling and City policies for u of the improvements. Members of the Commission shall be$Bangor-area residents with an interest in baseball, and shall be appointed by the Bangor City Council. Provided that the Bangor City Council may choose to vest the advisory commission's function in a larger Hayford Park Advisory Commission or in any private baseball council organized within the City of Bangor to serve regular users of Hayford Park. ARTICLE X, UNITED STATES' RIGHTS The parties acknowledge that Hayford Park is anarea of former U.S. Government surplus property transferred to BANGOR by the United States for park purposes, and that the property is subject to use restrictions and restraints on alienation to non- governmental entities contained in a deed recorded in Volume 2172, Page 126, Penobscot Registry of Deeds, as amended by an instrument recorded in Volume 4772, Page 172, Penobscot Registry of Deeds. BANGOR agrees that prior to commencement of actual construction by STEPHEN KING, it will take all steps necessary to obtain the approval of the United States, if required, to STEPHEN KING's occupancy and use of the premises for the purposes described in this Agreements v ARTICLE XIt TERMINATION OFAGREEMENT This Agreement shall be deemed terminated thirty (30) years from the date of final acceptance of the improvements by BANGOR. It isunderstood and agreed that upon expiration of said thirty (30) year term, BANGOR shall have no further obligation with respect to maintenance or use of the improvements, and may make such use of the improvements as shall seem to it proper at that. time, to include removal of the improvements and re -use of the land concerned. It is further understood that any funds held by BANGOR at that time for maintenance or operation of the improvements, whether raised by private solicitation, donation, or otherwise, shall be applied as HANSON may at that time deem proper, to park or recreational uses within the City of Bangor. ARTICLESURVIVABILITY OF AGREEMENT STEPHEN KING and BANGOR mutually agree that this Agreement shall be fully binding upon each of them and upon STEPHEN KING's heirs, representatives and estate; and upon BANGOR'S legal successors, if any. It is further understood and agreed that the obligations of the respective parties to each other under Articles II, III(2)(e), V, VII and VIII shall survive delivery of the improvements and final acceptance thereof by BANGOR. ARTICLE XIII RIGHTS PERSONAL TO STEPHEN KING It is the intention of.STEPHEN KING that the improvements hereby donated shall be used in accordance with STEPHEN KING'S personal wishes as expressed in this Agreement. Accordingly, it is agreed and acknowledged that any and all rights created by this Agreement as against BANGOR, as a municipal corporation Or otherwise, shall be deemed personal to STEPHEN KING o in the event of his death, to the administrator or Personal representative of his estate, and that no person not a party to this Agreement may bring suit to enforce the same as a beneficiary hereof, unless such right has been specifically assigned to that person by STEPHEN KING. ARTICLE XIV• ENTIRE UNDERSTANDING; MODIFICATION; GOVERNING LAW This Agreement represents the entire understanding of STEPHEN KING and BANGOR with respect to the donation described herein. No modification of this Agreement shall be deemed effective unless executed in writing by both parties or their authorized representatives; provided that design modifications consented to by BANGOR's City Engineer and approved by STEPHEN KING, and modifications of ^Exhibit A" plans to reflect actual design of the improvements as built, shall not be deemed modifications of this Agreement. ARTICLE %V:. AUTHORITY TO EXECIPPS By the signature of its City manager below, BANGOR hereby represents that it has taken all steps necessary to approve execution of this Agreement, and that upon execution the same shall constitute an act of the City of Bangor as a municipal corporation. IN WITNESS WHEREOF, the parties hereto have set their bands and respective seals the day and year first written above. Dated: STEPHEN KING Dated: CITY OF BANGOR By _ Title STATE OF MAINE Penobscot, as .July , 1991 Then personally appeared the above-named STEPHEN KING, and acknowledged the foregoing instrument to he his free act and dead. Before me, Notary Public/Attorney-at-Law Printed Name: My Commission Expires: STATE OF MAINE Penobscot, as. July , 1991 Then personally appeared the above-named EDWARD A. BARRETT, in his capacity as 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: My Commission Expires. AGREEMENT THIS AGREEMENT made in duplicated this _ day of July, 1991, by and between STEPHEN KING of Bangor, Maine, and the CITY OF BANGOR, aucipal corporation organized and existing under the laws of the State of Maine (hereinafter "BANGOR"), W I I X A S S E E HE: WHEREAS, STEPHEN KING wishes to donate to BANGOR certain improvements to the City's existing Hayford Park, said improvements consisting of a baseball diamond, grandstand, lighting and related facilities; and WHEREAS, BANGOR wishes to accept Mr. King's generous gift, NOW, THERRFORB, to better memorialize the terms of the gift and the obligations of the respective parties upon acceptance, the parties hereby mutually agree as followa: ARTICLE I, DONATION OF IMPROVEMENTS STEPHEN KING hereby offers and .agrees to donate to BANGOR certain improvements to BANGOR'S existing Hayford Park, consisting of an NCAA regulation -sized baseball diamond, grandstand, bathrooms, concession stand, lighting and fencing (hereinafter "Improvements") as depicted in the several plans attached to this Agreement as 'Exhibit A." STEPHEN KING'S donation shall be effective upon acceptance of this Agreement by BANGOR and upon completion of the improvements in accordance with Article III below. Upon completion, legal title to the improvements shall vest in BANGOR without right of reversion to STEPHEN KING. It is mutually agreed, however, that the improvements shall be maintained by BANGOR for use as a public baseball diamond and for related park purposes, as more fully described and for the term set out in Article II below. ARTICLE II: USE OF IMPROVEMENTS BANGOR agrees that upon completion of the improvements, and for a period of not less than fifteen (15) years thereafter, it will maintain and use the improvements as a public baseball diamond for the primary use of older children not having access to other regulation -sized baseball diamond facilities in the greater Bangor area. Scheduling and use of the diamond shall be supervised by the Bangor Parks and Recreation Department in accordance with policies issued by that Department and the Bangor City Council, provided that currently -existing Senior Little League, Coastal, Olympic, and American Legion baseball league teams from the greater Bangor area, and Similar successor leagues and teams, shall be given priority in use of the diamond for their regularly -scheduled and League play-off games. It is the intention of STEPHEN KING that the improvements donated by him shall be made available for scheduled games of such Leagues' teams at no charge; but it is mutually _s_ agreed that BANGOR may, in its sole discretion, charge reasonable fees for use of the baseball diamond for night games, play-off and inter -league -games; use by non -Bangor area teams and leagues; use by teams, leagues or groups above the high school level. In addition, BANGOR may impose reasonable regulations on the operation of any public concessions operated in connection with the improvements, and may require payment of a percentage of any concession receipts to BANGOR for BANGOR'S use in maintaining and operating the improvements. ARTICLE III, CONSTRUCTION OF IMPROVEMENTS It is mutually agreed that STEPHEN KING shall select a contractor or contractors and shall personally enter into all contracts necessary to complete construction of the improvements in accordance with 'Exhibit A^ attached. Construction shall be at STEPHEN KING'S sole personal expense, not to exceed One Million Dollar ($1,000,000.00). STEPHEN KING shall assume all responsibility for payment of the selected contractor(s), and shall indemnify and hold BANGOR harmless from all claims of any persons arising under the contracts entered into, including mechanics lien claims, contract claims, and negligence claims of any person arising out of the activities of the selected contractor(s) or their agents or employees. It is further mutually agreed that work on the improvements shall commence as soon as practicable after July 15, 1991, and that the project shall proceed continuously to completion. STEPHEN KING and his selected contractor(s) shall at all times during construction of the improvements have the right to enter onto the Hayford Park premises, including the right to erect temporary fences, restrict public access, and take other measures reasonably s necessary to assure the safety and security of the site. STEPHEN KING agrees to take all steps necessary to a contractors' compliance with all applicable State and Federal regulations, including applicable workplace safety and permitting requirements of any Federal or State regulatory authority. STEPHEN KING will assure that his contractor(s) shall have and maintain in force all workers, compensation insurance required by the State of Maine, and shall have and maintain in force general liability insurance coverage with policy limits of not less than $300,000.00 per individual claim. It is further agreed that during construction of the improvements, BANGOR'S City Engineer or his designated represent- tative shall have the right, but not the obligation, to periodically inspect the work to assure compliance with --Exhibit A' and other project plans. BANGOR shall also, upon request, supply such engineering and design assistance as may be necessary to assure satisfactory completion of the improvements,ce -3 - ARTICLE IV: TERMINATION OF AGREEMENT It is understood and agreed that upon expiration of the fifteen (15) year period specified in Article a above, BANGOR shall have no obligation with respect to maintenance or use of the improvements, and may make such use of the improvements as shall seem to it proper at that time, to include removal of the improvements and re -use of the land concerned. It is further understood that any fonds held by BANGOR at that time for maintenance or operation of the improvements, whether raised by private solicitation, donation, or otherwise, shall be applied a BANGOR may at that time deem proper, to park or recreational uses within the City of Bangor_ IN WITNESS WHEREOF, the parties hereto have set their hands and respective seals the day and year first written above. Dated: STEPHEN RING Dated: CITY OF BANGOR BY — Title STATE OF BAINE Penobscot, as. July , 1991 Then personally appeared the above-named STEPHEN KING, and acknowledged the foregoing instrument to be his free act and deed. Before me, Notary Public/Attorney-at-Law Printed Name: My Commission Expires: -4 - STATE OF MAINE Penobscot, ss. July , 1991 Then personally appeared the above-named EDWARD A. BARRETT, in his capacity as City Nsnager, 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: My Commission Expires. Rodney G. McKay Director of Cosmnalty Development Kenneth R. Gibb Director of Community B Economic Development Stanley C. Moses Best. Community Development Director Robert H. Farrar Director of Bdminiatration BE IT FURTHER RESOLVED THAT, until notified in writing to the contrary, Fleet Bank of Heine is authorized to accept and to act and rely upon any specimens of signatures of officers, or other persons,. if any, authorized to sign which are furnished to the Bank. AND BE IT FURTHER RESOLVED THAT, the City Clerk of the City of Bangor is hereby authorized and directed to furnish to Fleet Bank of Maine certification of City Council passage of this Resolve, and of specimens of signatures of the above authorized individuals.