HomeMy WebLinkAbout1989-03-27 89-146 ORDERIntroduced For
®Passage
❑First pestling Page —of
❑ Referral
pate Match 27, 1989
hem No. 89-146
Item/Subject: Authorizing City Manage[ to enter into
Agreement with Michael
Belong - Fuel Service for Recreational
Boating on the Penobscot
Responsible Department: Engineering
Rivet.
Commentary:
File Lease x11l. provide for the installation
and operation of a
fuel dock on the farmer Maine Coal Energy property to provide
service to recreational boaters. The Lease is
for a period of
3 years, but is revocable if the City requites
the property for
other development.
Fair ustrar has been reviewed and approved by
the Finance Committee.
Manager's Comments: -
pvnmens Heed
CiryAfewsn
Associated information: 0
Budget Approval: 0, �—
,."ore error
Legal Approval
y so. nor
Introduced For
®Passage
❑First pestling Page —of
❑ Referral
fiIlSZ:
As6ped to CoumeMor Shubert, March 27, 1999
CITY OF BANGOR
(tI)I.F) (OrbPTa Aoth rraiug City ,Manager to Enter into Agreement. with Michael
............. B L g .,,Fuel.ServiceforRecreatLonal Boating on the Penob cot River
BY the Ctep Couuil Of the City off nuor.
THAT the City Manager be and hereby is authorized to enter into a
Lease Agreement with Michael BeLong of Brewer to provide and operate
a fuel dock and related services for recreational boaters on land
owned by the City of Bangor on the Penobscot River, being the property
formerly owned by Maine Coal Energy, Inc., a draft copy of said Lease
being on file in the City Clerk's Office, with the final Lease Agreement
to be 1n a form satisfactory to the City Solicitor.
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89-146
DSK LEASE
THIS INDENTURE OF LEASE, executed in duplicate, this day of
, 1989, by and between:
CITY OF AmaxnP, a body politic and corporate,
duly organized and existing under and by
virtue of the laws of the State of Maine,
arca being located in the County of
Penobscot, State of Maine, (hereinafter
sometimes referred to a5 "LaSa0z"),
AhD
MICHAEL DELfkIC, of Brewer, County of
Penobscot, State of Maine (hereinafter
sometimes referred to a5 "Lessea"),
WITNESSETH:
WHEREAS, the City of Bangor is the owner of certain premises located
on £Tont 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
4089, Page 2]], and being Lot 41, Map 43, on the City of Bangor tax maps; and
WHEREAS, the Lessee desires to lease a portion of said promises for
the purposes of operating a dock for the sale of gasoline and diesel fuel to
recreational boaters,
NOW, THEREFORE, the parties do mutually agree as follows:
ARTICLE I
PRFHIS£S
Tnelassor, fox and in consideration of the rants to be paid under
Article III and other obligations to be performed by the Lessee as herein-
after provided, does hereby rent unto Leasee the following described property
in its present Condition, viz:
Parcels "A", "B", and "C" as furthet deacyil 1
on Exhibit A attached to thisAgreement.
ARTICLE II
TERM
IC HAVE AND 1V ROM the demisel premises unto the Lessee for three (3)
consecutive terms, as follows:
April 15 - November 15, 1989
April 15 - November 15, 1990
April 15 - November 15, 1991
ARTICLE III
I.la�uY:\II
A. Lessee covenants to pay to the lesson asental for the first term
of this Lease for the premises leased hereunder the am of Four Hundred
($400.00) Dollars, payable prior to the start of operations.
B. The fee for the second add third ternsshall he a lump sun payment
of Ebur Hundred ($499.00) Dollars, plus a surcharge on the sale of fuel, the
amenont of said surcharge to be negotiated between the Lessee and the Lessor at
the end of the first term. In determining the aeunt and extent of said
surcharge, both parties shall take into account the hotel volume of fuel sold
during the first teary the Lessee shall furnish Copies of all fuel delivery
slips to the Lessor to be furnished to the Harbor Master upon each delivery.
C. All rentals required hereunder shall be paid in advance, on the
first business day of each month during the initial tern or any extensions
thereof. Lessee shall pay all rentals herein required, without prior demand
therefor, in lawful money of the United States at the address of the Deemer as
herein set forth or at such other places as Lessor shall designate.
ARTICLE IV
USE, CCCUPANCY AND IMPROVHIENP OF PREMISES
A. The Losses 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
facility to be used for the purpose of dispensing gasoline and diesel fuel,
motor oil, and ice to recreational boaters; performing minor maintenance and
Providing other service to recreational boats; and to provide seasonal mooring
Plano for Lw more than four (4) boats. Said dock facility shall have a
maximun length of 142 feet, and shall include all necessary structural
supports, walkways and gangways. Prior to the installation of the dockage
facilities, the Lessee shall furnish to the City Engineer a detailed Plan
showing the layout and all structural details relating to the dockage
facilities.
B. Lessee shall have the right to use the area designated as Parcel
"B" on Exhibit A for the purposes of installing, maintaining and operating
above-grouni storage tanks for gasoline and dieselfuel, including pumps,
hoses and other apparatus, and to install and maintain a temporary trailer
with a length of not more than 20 feet for the purpose of maintaining a
office therein.
C. Lessee shall have the right, in common with others, to use the
area designated as Parcel "C" m Exhibit A for the purpose of ingress and
Ogress foam Front Street.
D. Lessee's right to operate the four (4) boat slip facilities shall
be limited to seasonal rental from April 15 through November 15 of each term
&a
hereunder. Rental of slip facilities for a longer Period shall be subject to
the Prior approval of the City of BangorHarborMaster and only upon Payment
to the City of Bangor of fees equivalent to the rates charged at the adjacent
municipal docking facilities. Lessee shall further not be authorized to rent
spare or to make use of the City's bulkhead on Parcel "A" except for the
securing of docking facilities authorized hereunder.
E. Lessee shall have the right to store all of his docks and related
equipment on Parcel "A" during the period from October 31 of each year to May
15th of the following year for so long as this Agreement ressains in
effect,
said removal and storage to be at the lessee's sole risk andexpenee.
F. As a condition of this Lease, Lessee shall apply for and receive
all State and Federal perimits which may be required prior to installation and
operation of the facilities as described above, and shall Pay all fees
Pertaining thereto. Lessee shall also apply for, and receive, a Class 1
Flammable Liquids Permit frau the Bangor City Council prior to installation
and operation of any private boat or vessel on the waters of the Penobscot
River.
G. Lessee, in the use and occupancy of the leased pranises, shall
comply with all local, State and Federal laws, including all applicable
regulations issued by the Paine Bepartment of Envitonmental Protection, the
United States Lrnironmental Protection Agency, the United States Coast Guard,
and any other congetent regulatory authority.
H. 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.
I. lessor, through its agents, shall have at reasonable times the
right, upon reasonable notification to the Lessee, to go w and inspect the
entire promises wi th an authorized representative Of the Lessee.
d. Lessee acknowledges that the leased premises are subject to
Periodic flooding and accepts all risks associated with such condition.
K. Lessor agrees to prohibit the sale of fuel by others on any land
owned by the Lessor bordering the Penobscot River during the term of this
Agreement, provided that the Lessee is not in default of this Agreement, as
described in Article %IV.
L. lessee agrees to maintain a sufficient supply of gasoline and
diesel fuel at all times to satisfy the needs of recreational boaters, and to
make the purchase of said fuel readily available for at least two (2) bouts
each day, and at least six (6) days each week; the exact hours of operation to
be show On a posted schedule.
M. Tne lessee shall establish reasonable sale prices for the gasoline
and diesel fuel, but in no event shall the prices be more than twenty-five
(25%) percent above the prevailing rates for similar fuels in the Bangor area.
-3-
ARTICLE V
A. Lessee Mail, at his sole expense, throughout the term hereof,
keep and maintain the -devised 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 promises.
B. The phrase "reasonable wear and tear" used in Paragraph A Of this
Article asexception to the obligations of the leasee shall Out be
constxud to relieve Lessee of the responsibility for providing tepairs of a
routine and regular nature which may from time to time be necessary, not to
provide maintemanre to the denisd premises of a nature and degree ordinarily
sufficient to prevent damage, breakdown, failures, malfunctions or disrepairsL
nor Mail my exception or special provision of this Agreement be construed to
mean that Lessor would be required to carry out maintenance and repairs to the
facilities to be installed. -
ARTICLE VI
Lessee shall pay the costs of extending all utility systems 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
INLfW Ics' LIENS
The Lessee agrees to promptly discharge (either by payment or the
filing of a necessary bond orotherwise) any mechanics', materialman'a or
other liens as may be placed against the demise] premises, any buildings,
structures or improvements thereon, which liens my arise out of any payment
due for labor, services, materials, supplies or equipment whichmay 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 proceo3ings.
ARTICLE VIII
TITLE 1V-IX%.'RS
ownership of the dockage facilities to be installed, and all utility
systems thereon, shall remain in the Lessee throughout the tern of this Lease,
and all such facilities and systems installed by the lessee may be removed by
the Lessee at the and of the Lease tern, orany extension thereof. Such
removal shall he at Lanese's sole cost and expense. Title to any property
not so removed by the Lessee within sixty (60) days followih} termination of
-4-
this Wase, or any extension hereof, shall vest absolutely and irrevocably in
the Lesson. Lessor may thereafter dispose of such property in any mannerit
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 W
free navigation of the Penobscot River, or the removal of which may be
required by any competent agency of State of Federal Government. In the event
the Lessee elects to remove said property at the conclusion of the Lease term,
Lessee shall return the leased premises as nearly as possible to their
original condition, reasonable wear and tear alone excepted.
ARTICLE IX
SURRENDER OF WSSESSION
In the event the City requires possession of the leased premises o
a
portion thereof as part of a redevelopment project, the City shall have the
right, upon ninety (9E) days' notice W 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 sane terms and conditions fox the remainder
of the lease Leon. 'fie costs of such relocation shall be borne by the Lessee.
NONDISCRIMINATION
As a condition of this Lease, or any extension thereof, Lessee, in the
use and occupancy of the leased premises, shall not on the grounds of sex,
color, creed or national original or any other manner prohibited by law,
discriminate or pewit discrimination against any person or group of persons
in any manner.
ARTICLE XI
COyfN OP QUIET Miorm"
The Lessee subject to the terms and provisions of this Lease, on
payment of the rent, and observing,nd keeping aperforming 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 demised
premises during the tew and any extension hereof witicut hindrance or
ejection by the Lessor or any persons lawfully claiming under the lessor.
ARTICLE XII
LIABILITY AM PROPERTY DAMAGE INSURANCE
As a condition of this Lease, Lasses during the entire term of this
Lease or any extension tbereof shall maintain, at his expense, insurance of
the following type with Companies authorized to do business in the State of
-5-
Maine for the protection of the City of Bangor, who stall be named as an
additional insured against all claims, losses, costs or expenses arising out
of injuries to persons whether or not mployed by Lessee or damage to property
whether resulting fmon acts, missions, negligence or otherwise of the Lessee,
its directors, officers, employeesand agents and arising from Lessee's use of
the promises.
Comprehensive Public Liability Insurance
$ 300,000 per person
1,000,000 per accident
Lessor shall Mt he required t0 provide insurance coverage On the
leasehold improvements or any property owned by the Lessee or third parties a
may he located within the leased premises. Lessee shall cause to he furnished
to the City of Bangor evidence in the form of certificates of insurance of the
existence and continuance in force of the insurance required hereunder.
ARTICLE XIIA
SPECIAL PROVISIONS RELATING 'M REFUELING OPERATIONS
Lessee expressly acknowledges that the shipment, transfer, handling
and use of petroleum and other fuel products is an inherently dangerous
activity. As a condition of this Lease, Lessee agrees that Lessor shall have
the right, but not the obligation, to order immediate and indefinite
suspension of Lessee's activities under this Lease if, in Camera's sole
opinion, Lessee's activities shall at any time create or contribute to a
condition which Some a clear hazard to the safety of persons or property
within the City of Bangor. Such conditions may include, but axe not limited
to, gasoline or fuel oil leaks or spills; intoxication of any of Lessee's
personnel during refueling or fuel transfer operations; careless or unsafe
practices during refueling; selling fuel to intoxicated customers; careless
handling of boating equipment; and any other unsafe condition, practice or
situation. Any written or oral notice Exon the City of Bangor Eire Chief, or
his representative; the City Code Enforcement Officer; the City of Bangor
Harbor Master or his representative; the City Engineer's office, or the City
police Department, specifying the dangerous condition and ordering suspension
of operations until the condition is corrected, shall be sufficient notice.
lessee shall have no claim for lost income or other damages, and shall have no
right to set-off rent against such claims, on account of any suspension of
operations ordered order this paragraph. Such suspension of operations may be
ordered by the City or its designated representatives, above, nctwitbstanding
that Lessee's operations may be in nominal compliance with other provisions of
State, Federal and local law.
Site PWteCtion; Insurance. As a condition of this Cease, Lessee
agrees that it will coNuct its refueling and fuel transfer operations,
including on-site storage of petroleum and other fuel products, in such a
manner as to prevent any contamination of the Bangor Harbor or Penobscot
River. Lessee further agrees that it will not permit Or allow any leaks,
spills or disposal of any toxicorhazardous substance, including petroleum
C.�
and other fuel products, in such a manner as to contaminate the surface or
sub -surface sails or groundwater aquifer of the leased or any surrouMing
premises. No toxic substances, fuels, or petroleum will be disposed of on-
site. In order to protect both the Lessee and the City against any and all
future environmental damage claims arising out of Lessee's use of the leash
premises, and in addition to the general liability and property damage
insurance requirements specified in Mticle XII above, Lesgee agrees that at
all times during the tern of this Lease or any extensions hereof, it shall
maintain, at its sole expense, anemental damage insurance policy with
total policy coverage limits of at least $1,000,0001 in whatever form such
coverage may currently be available in the insurance industry. Such coverage
may be provided under a blanket liability policy provided that coverage limits
estalimed insuch policy for environmental damage claims shall be in addition
to all other coverage afforded by the policy.
A. Lessee shall indemnify, protect, defend and hold harmless the
Lessor, its officers, employees and agents, frau and against any and all
liabilities, losses, sults, claims, judgments, fines or demands arising by
reason
of injury, or death of any person or damage to any property, including
all reasonable costs of investigation and defense thereof (including but cut
limited to attorneys fees, court costs, and expert witness fees), of any
nature whatsoever arising out of or incident to this agreement and/or the use
or occupancy of the leaned premises as a result of the acts o of
Lessee's officers, agents, employees, contractors or subcontractorsr unless
such injury, death, or damage is causnd by the negligence of the Lessor, its
officers,agents or employees. The Lessor shall give to Lessee reasonable
notice to Lessee of any such claims or actions. The provisions of this
Article shall survive the expiration or early termination of this Lease.
B. lessor shall protect, defend and hold Lessee, its directors,
officers, agents and employees harmless frau and against any and all
liabilities, losses, suits, claims, judgments, demands and fines arising out
of my injury or death to person or any damage to any. property, including
reasonable costs for investigation end defense thereof (including but not
limited to attorneys fees, court costs and expect witness fees) of any nature
whatsoever arising out of or incident to this Agceerent and/or the use or
occupancy of the leased premises as the result of the acts or missions of
Lessor's officers, agents, employees, contractors or subcontractors, unless
such injury, death or damage is caused by the negligence of Lessee, its
officers, directors, agents or employees. 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 Agreement.
DEFAULT
It is covenanted and agreed Nat:
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(1) If the Iessee 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 c enants, terms, provisions, or conditions on 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, teres,
provisions or conditions cannot be performed or observed within said ten (la)
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 proceas of law; or
(d) If the Lessee shall be declaral 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
(fi) If aever, guardian, conservator, or trustee in bankruptcy or
other similar officer shall be appointfor 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 arra aammits. under provisions of the Bankruptcy Act now or hereafter
enacted,
then, in any of the said cames (notwithstanding any license of any former
breach of covenant or waiver of the benefit hereof o anti a former
instance), the Lessee maybe considerer] in default hereunder, and the Lessor
lawfully may, immediately or at any time thereafter, and without demand o
notice, enter into and upon thesaid premises or any part thereof, in the name
of She whole and repossess the same as of the Lessor's former estate, and
expel the Lessee and those claiming through or under him and remove his or
their effects (forcibly, if necessary) without prejudice to any remedies which
might otherwise be used fora of rent or preceding breach of covenant,
and upon entry as aforesaid, thsrfease shall terminate.
ATTORNEY'S FM
the Lessee shall pay to the Lessor a reasonable attorney's fee in the
ant the Lessor employes an attorney W collect any rents due hereunder end
matures
a jWgmant in connection with the collection of said vert, or to
protect the interest of the Lessor in the event Lessee is adjudged a bankrupt,
IM
or legal process is levied Open the interest of the Lsssee in this Lease or in
said premises, or in the event Lessee violates any of the terms, caditions or
covenants on the part of the Lessee herein contained, providad that Lessee
fails to promptly correct the violation of any term, condition or covenant
after receipt of notice that it is in violation thereof. retrace will pay to
Lessee a reasonable attorney's fee if Lessee employes a attorney in the event
the Leaeoreviolates arty of the terms, conditions or covenants on the part of
the Lessor herein contained, provided said Lessor fails to promptly correct
the violation of any teen, condition or covenant after receipt of notice that
it is in violation thereof.
ARTICLE WI
ASSIGNMENT, SALB'AND SUBLMING
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, o
any part thereof, without the prior written consent of the Lessor, which
consent will not be unreasonably withheld. Lessor specifically consents to
the assignment ofthisLease to a corporation to be formed by the Lessee.
Notwitbstanlirg other provisions of this paragraph, Lessor reserves the right
to deny permission to sublet if, in the City's sole opinion, the party
proposing to sublet the devised premises skull not give sufficient evidence of
its capacity to rem a safe amd useful refueling operation, and Of otherwise
fulfilling all the terns aW conditions of this Lease.
ARTICLE XVII
WAIVER
A. Failure on the part Of the Lessor to complain of any action Or
action on the part of the Lessee nem matter Saw long the some may continue,
shall never be dee d to be a waiver by the Lessor of any of Lessor's rights
bareurder. Further, it is covfnntcd sul 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, aad that a weiver at any time of any of the
provisions hereof shall not be con[rund at any subsequent time of the same
provisions. The approval of Lessor to or of any action by the Lessee
requiring the Lessor's cunsent or approval shall eat be deemed to waive or
reader unnecessary the Lessor's consent or approval to or of any subsequent
similar act by the Leasee.
B. Failure on the [art of the Lessee to complain of any action or
nonaction on the part of the Lessor no matter how long the same may continue,
shall never be deemed to be a waiver by the Lesson of any of the Lessee's
rights hereunder. Pother, it is covenianted aad agreed that no waiver at any
time of any of the provision hereof by Lessee, shall be cgnstxued'as a waiver
of any of the other provisions hereunder, and that a waiver at any time of my
of the provisions hereof shall not be construed at any subsequent time of the
sane provisions. the approval of Lessee to or of any action by the Lessor
requiring the Lessee's consent or approval shall not be deemed to waive or
reader unnecessary the Lesson's consent or approval to or of any subsequent
similar act by the lessor.
SD
ARTICLE XVIII
NOTICES
Notices to the Lessor provided for in this lease shall be sufficient
if sent by registered or certified mail, return receipt rmaested, postage
prepaid, addressed to: City of Eazgor, fano[ City Hall, 73 Harlow 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 Datong, 379 South Main Street, Brewer, Maim, 04412, or t0 Such other
respective addresses as the parties may designate to each other in writing
from time to time.
If any term or provisions of this Team or the application thereofto
any person or
circumstances to any extent, is held to to invalid o
unenforceable, the remainder of this Serie or the application of such terms
and provisions to persons or
circumstances other than those to which it is
held invalid o enforceableshall not be affected thereby and each term and
provision of this Lease shall m valid and be enforceable to the fullest
extent permitted by law.
ARTICLE xx
CONSTR=ON
fm 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 he deemed or construed by the parties
hereto, nor by may 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 contain herein or any acts of the parties hereto shall
be damned to create any relationship between the parties hereto other then the
relationship of landlord and tenant.
O RNIW LAW
this Lease shall be governed exclusively by the provisions hereof and.
by the laws of the State of Maim, as the same may from time to time exist.
-10-
ARTICLE X%II
E%£C(ITION OF AGREEMENT
The lessor hereby represents and warrants that it has taken all
necousary procedural and legal steps as required under all state, local and
federal laws and regulations whatsoever for the purpose of authorizing the
execution of this Agreement, and that the execution of this Agreement by the
City Manager [orders this Agreement a valid and binding document on the part
of the City of Bargox and is fully enforceable in all of its terms and
conditions by the Lessee.
IN WITNESS WAERBJF, the parties hereto have set their hands and Seals
the day and year first written above.
CITY OF BANGOR
BY
Di CtA. agrrett
City
Manager
Witness Michael relnng
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a�
(FoeMetzCY MAINC COAL ENERGY, lklc) B
FKOYT zT. zlW^ ❑
PEN06SCOT 2tVER
FUEL DOCK LEASE PLAN...
EXHIBIT A'., -
- i
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