HomeMy WebLinkAbout1991-08-05 91-302 ORDERDate 8-5-91 MGM, 91 91-3D2
Item/Subject: Notifying City Manager's Execution of Substitute Agreement with
Stephen King -- Hayford Park Baseball Field Donation
Responsible Department Legal
Commentary: By Council Order 91-273. the City Council approved execution of an
Agreement with Steplum King, setting out the conditions of Mr. King's; gift of the
llgyford Park baseball field and grandstand to the City. That Agreement was later
a
reviewed by Mr. King'a New York legal adviso who requested substantial
coens
modifications to the Agre [ to assure that Mr. Blank gift meets the require -
encs of the Federal tax code for acharitable deduction. A new "Memorandum of
Donation" has been submitted for the Council's approval in lieu of the original
Agreement. Under the proposed Memorandum, Be. King will no„longer be responsible
for construction of the project, which will become the City's responsibility.
Mr. King will continue to supply the foods necessary fox construction.
This order would approve execution of the proposed 'Memorandum” by the
City Manager.
The Legal Department has reviewed the proposed Memorandum as to form, and has
recommended certain changes which have been accepted by Mr. King. Approval
isieco® ded.,-
DIt"9111111 Hold
- .
Manager's Comments:
CiLy Mm. go,
Associated Informatia¢ Today. Memorandum of Donation
Budget Approval
Fina m Oivamr
Legal Approval:
\ "at. City So/ iaiIs,
le
Introduced For
E]Passage
Q First Heading page _ of
❑Referral
91-302
Aedp�ed to Cswdlor Saxl, August 5, 1991
CITY OF BANGOR
QIREJ�TiI2Tt----....Ratifying City Manager'. s. Execution of„ -Substitute,,,
with Stephen Ring -- Hayford Park Baseball Field
BYw City CosneH of Cit of Ba -,
ORDERED,
TWT
WHEREAS, by Council Order 91-273 passed July 8, 1991, the City
Council authorized execution of a certain Agreement with Stephen
King accepting Stephen King's generous gift of a baseball field and
grandstand to be constructed in the City's Hayford nark; and
WHEREAS, Stephen King's attorneys have recommended execution of the
attached "Memorandum of Donation” in substitution for the Agreement
previously approved by Council Order 91-273; and
WHEREAS, execution of the proposed "Memorandum of Donation" is in
the beat interests of the City of Bangor and Mr. King;
MOW, THEREFORE, By the City Council of the City of Bangor be it
ORDERED,
THAT the City Council hereby ratifies and approves the action of
the City Manager in executing the attached "Memorandum of Donation"
in substitution for the Agreement previously approved by Council
Order 91-273.
91-302
IN CITY COUNCIL
August 5, 1991 O R D E R
Passed as Amended. -
Amended in Memorandum of
Donation. Title,
CITYtKR+� RaHlYlag.city,M$gagezq, expcuglgq,p(,SubatIIuce
Agreement with Hayford Park Baseball Field Donation
......................................
Aeei M to
.....................................
Councilman
91-302
MEMORANDUM OF DONATION
This MEMORANDUM is entered into as of the _ day of , 1991 by
and between Stephen King of Bangor, Maine ('Ring') and the City of Bangor, a municipality
organized and existing under the laws of the State of Maine (the
WHEREAS, King wishes to make a donation to the City for the purpose of enabling
the City to construct a baseball diamond, grandstand, lighting and related facilities in
Hayford Park subject to certain terms and conditions, and
WHEREAS, the City has agreed to accept such donation subject to such terms and
conditions;
NOW THEREFORE, in order to better memorialize the terms of this donation and
the obligations of the City upon acceptance, the parties agree as follows;
ARTICLE I
DONATION
King hereby offers to donate to the City up to $1,000,000 for the purpose of enabling
the City to construct an NCAA regulation -size baseball diamond, grandstand, restrooms,
concession stand, lighting and fencing (bereinafter collectively the "Improvements"), all in
accordance with plans to be approved by King as hereinafter provided. King agrees to make
- his donation at such time as a construction contract for constriction of the Improvements
acceptable to King has been executed by the City. The donation shall be made in a lump
sum, or, in the discretion of King may be disbursed in installments, provided, however, that
King shall make payments to the City as necessary to fund construction of the Improvements
in accordance with the terms of the construction contract.
ARTICLE 11
CONDITIONS
The donation described in Article I above shall be subject to the following conditions
2.1 Selection of Contractor. The general contractor for construction of the
Improvements shall be Crowell Construction, Inc. of Ellsworth, Maine, unless both King and
the City shall otherwise: agree.
22 Construction Comment. The terms of the construction contract entered into
by the City for construction of the Improvements shall be approved in advance by King or
his authorized representatives. After execution of the construction contram no change
orders shall be made without the consent of both King and the City.
23 Plans and Suec'fcat ons. Ttie City agrees to submit to King, upon request
copies of all building designs, plans, specifications and related documents for advance
approval prior to commencement of work on the project and all such documents shall be
subject to King's approval.
2.4 Permits and A orp, nvnla The City shall obtain all federal, state and local
permit approvals required as a precondition to the construction of the Improvements
including, without limitation, any environmental permits required by the Army Corps of
Engineers or the Maine Department of Environmental Protection, and shall comply with an
applicable federal, state and local ordinances pertaining to construction, maintenance and
use of the Improvements. .
2.5 night of Inspection During construction of the Improvements, King or his
designated representative shall have the right, but not the obligation, to periodically inspect
construction work to assure compliance with project plans.
2bcchheddulig and I Jse.For a period of not less than thirty (30) years from the
date of completion of construction of the Improvements, the City will adequately 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 other public special events as may be approved in
advance by the City Council. Scheduling and use of the diamond will be supervised by the
Bangor Parks and Recreation Department in accordance with policies established by that
Department and the Bangor City Council and with the advice of the Advisory Commission
to be established in accordance with Section 2.9 hereof. Senior Little League, Coastal,
Olympic and American Legion baseball league teams from the greater Bangor area, and
Warns from similar successor leagues, shall be given priority with respect to use of the
diamond for their regularly scheduled games and league playoffs.
2.7 Terms of Use The Improvements donated by ring shall be made available
for regularly scheduled games of the leagues described above at no charge. The City may,
in its sole discretion, charge reasonable fees for use of the baseball diamond for special
event uses, night games, playoff and interleague games, non -Bangor area teams and leagues,
and for use by teams, leagues and groups above the high school level. In addition, the City
may impose reasonable regulations on the operation of any public concession operated in
connection with the Improvements, and may require payment of a percentage of any
concession receipts to the City for the City's use in maintaining and operating the
Improvements.
2.8 Maintenance Obligations. Upon completion of construction of the
Improvements and for a period of thirty (30) years thereafter, the City agrees to maintain
the. Improvements in a safe and playable condition in accordance with applicable standards
established from time to time by the National Collegiate Athletic Association for NCAA
"regulation" baseball diamonds, or comparable standards established by any successor
organization. In addition, the City agrees to supply, maintain and repair, at its sole expense,
water, sewer, electrical service and other utilities needed in connection with use of the
Improvements during such thirty (30) year period. Nothing in this Section shall be deemed
-2-
to prohibit the City from charging or collecting fees for use of the Improvements, including
concession commissions, except as otherwise restricted by the terms hereof:
2.9 E tahllshm nt of Advisory Comm' 'on Fallowing Rod completion of the
Improvements, the City shall establish an Advisory Commission for the purpose of advising
its Parks and Recreation Department on issues of maintenance, scheduling and other
policies for use 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
In lieu of establishing such an Advisory Commission, the Bangor City Council may invest
the functions of the Advisory Commission 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 III
luu.»;ir.1.f�7
3.1 Ltdemnificsfnn The City hereby covenants and agrees to indemnify and
hold harmless King, his heirs, successors and assigns, from and against all claims, demands,
actions, suits, proceedings, judgments, decrees, debts, liabilities, costs, fees and expenses,
including attorney's fees, of any kind whatsoever which may at any time be asserted by any
person, firm, corporation or governmental agency arising, either directly or indirectly, our
of the construction, maintenance or use of the Improvements.
32 Ap ro oval In City The City hereby represents that it has the lawful authority
to enter into this Memorandum and to accept the donation offered by King on the
conditions set forth herein and that the same has been approved by a proper order of the
Bangor City Council, which order authorizes the City Managerto execute this Memorandum
on behalf of the City.
ARTICLE -1Y
1810004 +.If`I3�3ICiS:TiS rRiilRi
4.1 Rights Personal to Kine The City acknowledges that it is the intention of
King that the Improvements constructed with the proceeds of his donation be used in
accordance with his personal wishes as expressed in this Memorandum Accordingly, it is
agreed and acknowledged that any and all rights created by this Memorandum shall be
deemed personal to King or, in the event of his death or disability, to his conservator,
personal representative, or heirs, and no other person may enforce any such rights as a
beneficiary hereof unless such right has been specifically assigned to that person by King.
4.2 Via. In the event of a breach of the undertakings, covenants and
conditions imposed on the City asset forth in this Memorandum, King, his conservator,
personal representative, heirs or assigns, may bring legal proceedings in any appropriate
forum for the purpose of specifically enforcing such undertaking, covenant or condition or,
in the event that such specific performance is not practical or available under the
-3-
circumstances, to reform the obligations of the City as set forth in this Memorandum to the
extent required to assure that the intent of IGng with respect to the construction,
maintenance and use of the Improvements, as expressed in this Memorandum is carried out
to the fullest extent practicable under the circumstances.
43 Dilation of Undertakhme. The undertakings and covenants of the City as
expressed in this Memorandum shall remain in full fora and effect for a period of thirty
(30) years from the date of final completion of contraction of the Improvements, and the
City shall thereafter have no further obligation with respect to maintenance or use of the
Improvements and may make such use or disposition of the Improvements as shall seem
proper at that time; provided, however, that to the extent it is practicable to do so, the City
shall use the Improvement% or the proceeds resulting from any disposition thereof,for
purposes consistent with the wishes of King as expressed in this Memorandum. Any funds
held by the City at the expiration of such thirty (30) year period for maintenance or
operation of the Improvements, whether raised by private solicitation, donation, or
otherwise, shall be applied as the City may at that time deem proper for parks or other
recreational uses within the City of Bangor.
4.4. Binding Effect This Memorandum is intended as a binding agreement by
the City to accept the donation offered by King on the terms and conditions herein set forth.
This Memorandum embodies the entire understanding of the parties with respect to the
subject matter hereof, and no modification of this Memorandum or the terms set forth
herein shall be deemed effective unless in a writing executed by both parties. or their
authorized representatives.
4.5 Coveming Law This Memorandum shall be construed in accordance with
and shall be governed by the laws of the State of Maine.
4.6 Charitable Contribution. The City acknowledges that it is the intention of
King that his donation qualify as a charitable contribution as that term is defined in Section
170(c) of the Internal Revenue Cade of 1986, as amended. Accordingly, this Memorandum
is to be constmed to further such intent, and any provision herein, to the extent that it
would cause said donation not to qualify as such charitable contribution, shall be deemed
null and void.
IN WITNESS WHEREOF, the parties hereto have caused this. Memorandum to be
executed under seal as of the day and year first above written.
Stephen King
CITY OF BANGOR
By
Its
-4.
STATE OF MAINE
Penobscot County 1991
Personally appeared the above-named Stephen 19ngand acknowledged the foregoing
instmment to be his free act and deed.
Before me,
Attorney-at-law/Notary Public
Print or type name as signed
-5-
Amendment "
Amendments to Memorandum of Donation 91-30T
- Special Neeting 5-5-91
(1 ). article ii. Section 2.1
Change Gary Crowell to Crowell Construction, Inc. -
(2) Article II. Section 2.2
Add the following at end:
During construction of the improvements, King or a personal
representative shall be available at least weekly to review
and approve or disapprove proposed change orders. Ring
agrees to be responsible for the additional expense, if
any, resulting from change orders so approved.
(3) article lII, Section 3.2
Revise third line as follows;
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