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HomeMy WebLinkAbout1983-04-11 83-139 ORDER83-139 Introduced by Councilor Jordan, April 11, 1983 CITY OF BANGOR (TITLE,) (Dib2Ty Authoxi ivg Executive oP A Ag emeat with The American City_._ By the Cup Co sung of de City Of Ranges: ORDERED, THAT WIIEREAS, it is in the best interests of the City, of Burger to stabilize end improve the economic vitality of downtown Bangor by fostering the disposition of publicly owned development parcels for approved ones and the encouragement of private investment in the downtown area; seat. WHEREAS, the City of Bangor a:u1 the Bangor Centex Development Corporation retained The American City Corporation, a subsidiary of The Rouse Company, to prepare a development prcgran and development plan for the downtown area of Burger; and WHEREAS, the City of Bangor and the Bangor Center Development Corporation ere desirous of engaging the services of The American City Corp - ration to provide assistance in the implementation of said development proeran; NOW, TRERFFORE, BE IT ORDERED BY THE CITY COUNCIL OF TBE CITY OF BAMAR THAT the City Manager is hereby authorized, on behalf of the City of Bangor, to, execute the 'Implementation end Consulting Agreement Between The City a Bangor, Paine, Ina Bumper Center Development Corporation and The American City Corporation", a copy of which is on file in the Office of the City Clerk. In addition, the Coag ity Development Cosmittee is hereby authorized to approve any modifications to said Agreement. BE IT FUA= ORDERED By M CTM COUNCIL OF THE CITY OF BBRUOR THAT payment of the 'Bedevelolmant Implementation Fees" in accordance with Section 4.02 And Schedule C of said Agreement shall be made from the proceeds to the City of Bangor That the lease and/or sale of the pareal(s) to which the Fee(s) Are applicable. STkItIfiNT OF FACT: It in anticipated that payments of the per diem fees most Section 4.01 of the Agreement will be made on a 50/50 basis utilizing private donations from the Bangor Center Development Corporative and fvnda-reimbursed to the City for completion of the Kendunkeag Stream Urban Renewal Project. Al In City Apr__5��ly� yyCotn,nyccp�il q11,,p19;;8nn3gg $il$;'g4,,153'Y9 CifiG'IIKrG'as 83-139 IC R 0'R DER City Clerl _ - - - - Title, _ Wlt l�4m PnefttLon of.ff.4AP•. nt With the Am ic an City Corporation } CI Chit Cyd. du d n d fled _ i 1• IMPLEMENTATION AND CONSULTING AGREEMENT BETWEEN TUE CITY OF BANGOR, MAINE, THE BANGOR CENTER DEVELOPMENT CORPORATION AND THE AMERICAN CITY CORPORATION THIS IMPLUIENTATION AND CONSULTING AGREEMENT ("Agreement'') is made as of 1982, between THE CITY OF BANGOR, - MAINE ("City") and 'C{1C.B4NCOR.CEMCER -0EVIa:OPMEN'T -CORPORATION ("BCDC") (City and BCDC herein together refcncd to a.. "Client"), and THE AMERICAN CITY CORPORATION, a Maryland corporation, having its principal office at The American City Building, Columbia, Maryland 21044 ("ACC"). ProN i_vv St:n,9nl.III On behalf of City and BCDC, ACC has comploced a development program and plan for the downtown area of Bangor, Maine. Major components of rho pronosed development include: A 104 Unit apartment complex; the I; rehabilitation of the presently vneanr Sonrs Building; a coordinated program of public and private improvements to rights-of-way and buildings in the downtown area; a wintergarden and Lee rink complex: scream improve- ments for the Penobscot River and Aenduskeag Stream; a concentrated effort to rehabilitate existing buildings for residential and office use; and three parking deck facilities. City and BCDC have requested the assistance of ACC in the implemen- tation by City and BCDC of the Bangor development program and plan by providing dvvelupmenc management services, and ACC is willing to render such assistance upon tlm terms end conditions sec [orth in this Agreement. Agreement of the Parties - Based on the above recited statement, and in consideration of the mutual understandings and agreements as hereinafter set forth, the Parties contractually agree to be bound in accordance with the following terms. Services 1.01. In Connection with the implementation work as contemplated herein, ACC shallperform such services ("Work Program") as are more. Particularly described in Schedule A attached hereto and by this referenca made a part hereof. All. such services shall be performed only on written request as detailed in Sections 1.03 and 2.02. 1.02. The services hereunder shall be generally performed by members of the professional staff of ACC end particularly by a team which shall be composed of a Senior Dove lnpment Director, Associate Development Director, Archi.iect. Lnnd 1'Lolivi, Market Analyst, Financial. Analyst and Marketing and Promotions Specialist. all of said team numbers being identified in Schedule D attached hereto and by this reference made a part hereof.. All team members shall be under the general direction of ACC Vice President, Drn Connolly.ACC retains the right, to the extent it deemsnecessaryor advisable, to (f) change and designate different personnel as teammembers, and (ii) retain outside specialized assistance which, if hired, shall be at its sole cost and expense, provided, however, that such actions shall not be taken without prior written notice to Client. Any person or entity so retained by ACC for specialized assistance shall perform all such services under the direct supervision of ACC as 1.03. All services shall be provided at ACC's offices in Columbia. Maryland, except that the Senior Development Director and the Associate Development Director will be available Co provide services in Banger, Maine. All services hereunder will only be provided as requested in writing by Client and on dates mutually agreed upon amung the parties. ACC shall be under no obligation to provide services in Columbia, Mary- land, for more than five (5) regular business days each month during the Term or to provide services in Bangor, Maine, of the Senior Development .Director for more than four (4) regular business days and of the Associate Development. Director for more than two (2) regular business days each month during the Term. -ACC and Client 1114y mutually agree with respect to the provision of .services in addition to the above, but any such agree- ment shall be in writing and indicate the mutual consent of the parties hereto. 1.04, Performance of the servi.cuu described herein shall commence as of rhe date of full execution and ""'_Leery by the parties of this Agreement and shall continue for the ['allowing six (A) months (herein "Term')., unless sooner terminated in accordance with the provisions of Section 5.01 herein. If ACC is delayed in its -performance of any of its work tasks hereunderby the acts, omissions or commissions of Client, or of its employees or agents, or by the acts of Cod or because of indecision or lack or information on the parr of Client, or because of ocher causes. beyond ACC's reasonable control, that period of time during which ACC is so delayed, shall, at the sole option of ACC, be added to the time of completion of the work as provided for herein. 1.05. Nothing herein shall be construed as an agreement by ACC to provide legal services of any hind to Client., as ACC is not authorized -3- to offer and/or provide legal services. Accordingly, any consulting assistance, advice or legal duoumentation offered or prepared by any attorneys employed by ACC is for the primary benefit of ACC staff personnel and should not be construed is legal advice or services to the Client. As a condition of this Agreement, Client agrees to retain or use its own counsel with regard to those matters which are the subject of this Agreement, said counsel(s), being hereby deemed responsible for rendering all legal assistance eu the Client in connection herewith. 1.06. It is understood that ACC is an independent contractor with authority to control and direct the performance of the services contem- plated herein in such manner as it deems appropriate. ACC warrants, however, that it shall cause its staff and such others as it may engage to perform services hereunder to act in a professional manner and at a standard consistent with other reputable consultants engaged in the same areaofexpertise. All reports, inferal and analyses prepared and submitted by ACC shall represent its best judgment as to the subject matter -thereof. ACC shall not be duemed an agent, or employee of the Client in any respect and shall have no power to bind Client, nor shall Client have any responsibility for anyactionsof ACC .in .the.performance of itsduties. hereunder. Client's it ods ihpities 2.01. The Client shall provide ACC of no cost with such information, data, records, studies, materials and similar items asare reasonably available, requested and related to the services -to be provided hereunder and either in the Client's possession ..r a matter of official, but not public, record. -4- 2.02. The Client shall, within a reasonablh time of commencement Of the Term of this Agreement, designate such employees and agents of it as will be assigned Lo direct develupmunL implementation activities in the various work areas contemplated herein and to whom ACC and its staff shall provide consulting advice and assistance. Such representa- tives of Client will be in overall charge of the development implementa- tion activities contemplated herein and will be those persons to whom ACC and its staff shall directly provide consulting advice and assistance. Provided, however, that only the City Manager of the City of Bangor shall have the authority to issue the written request(s) for the services of ACC contemplated by this Agreement. Client will furtherdesignateand make available, upon reasonable notice from ACC, employees having the necessary special expertise (such as law, engineering, real estate assessments, etc.) to respond to specific aspects of the implementation of thedevelopment program or to consult generally with ACC's Work Team. Client shall.havc the right to change and ied(al1gnatc employees and agents from time to time but will use its best t.f.forts at all times during the Term hereof to designate emPluyucx and agents having the required expertise. igmmnnILV Participation 3.01. lotwithsennding anything contained in the Work Program to the contrary, Client will have sole rrspoc)sibility for convening and conducting any oomnuni.cv reviews involving the services to be accom- plished hereunder. ACC will pn'ticipnto as it resource on such occasions as reasonably desired by the Client to present and explain its work to community groups and individuals as convened by the Client. All reviews and meetings arranged Pursu:uac to this Section shall be on a schedule mutually agreed upon by the Client and ACC. -5- Compensation 4.01. As compensation for the services to be performed by ACC hereunder, Client shall pay to ACC the sum of Five Hundred Dollars ($500.00) per member of the ACC work team for each regular business day during which services shall be rendered under this Agreement, whether such services be rendered in hangar. Maine, or in Columbia, Maryland. In addition, Client shall reimburse ACC for all 'reasonable, necessary, and proper out-of-pocket costs incurred by ACC in providing services hereunder in Bangor, Maine, including but not limited to, costs of travel, meals and lodging. . Amounts payable under this Section 4.01 shall be billed by ACC to Client monthly for services rendered, all invoices to contain reasonable: detail of work done, personnel involved and dates of work, in substan- tiation of the amounts billed. Invoices shall he payable within twenty (20) days after delivery to Client. 4.02. In addition re the amounts payable under Section 4.01 above,. ACC .may be paid -as additional compensation for services to be performed by it certainconditional sums ("Redevelopment Implementation Fees"). Said Redevelopment Implementation Pees are. further defined and shall be deemed earned by and payable to ACC pursuant to those terms and condi- tions as are set forth on attached Schedule C. 4.03. Compensation for the services to be performed hereunder by ACC shall not be con ti n;;en f. upon the rvvitw or approval of ACC's work, or any component thereof, by any private, public or governmental entity other than Client, nor upon Client's receipt of any financial commitment or undertaking by any private, public o- governmental entity. -6- Indemnification 5.01. ACC shall indemnify and hold the Clients and their desig- nated representatives and employees harmless from and against all costs, fees; expenses (including reasonable attorneys' fees and expenses), obligations, damages, liabilities, claims, Judgments slid the like arising out of the performance of the services contemplated hereunder, other than in regard to. ACC's professional judgments, analyses and reports and except to the extent any of the foregoing arises out of (i) an act or omission solely of the Clients or their designated representatives or employees, (fi) an error in any information, data, records, materials or similar items provided to ACC which is not apparent in the exercise of reasonable judgment and review, or (ii.i) an error in any public records obtained and relied on by ACC which is not apparent in the exercise of reasonable judgment and review. Terminatfou 6.01. This Agreement may be terminated by the Client for any - reason, ocher than ac a method of Clitut's direct avoidance of payment of:. all or a portion of the Redevelopment Implementation Fees, upon written - notice to ACC. affective upon reccipi unless otherwise specified by the Client. In the event of an early termim¢iwl, Client shall pay AGC for those sums due pursuant to Section 6.U1 of this Agrecmenc through the date of cermination. 6.02. Performance hereunder may Le suspended after five (5) days' written notice from ACC if the invoices referred Co. in Section 4.02 are not paid as contemplated therein. 6.03. Upon the expiration or early termination of this Agreement and the payament to .ACC for its services, prorated, if necessary, to the date of termination, all. written repos .s, recouo-nendorions and models prepared by ACC, and all wrtttun information, data, records, materials -7- and similar items previously provided to ACC by the Client shall be delivered over to the Client. All such written reports and reccumenda- cions and models prepared by ACC shall then become the property of the Client and may be used by same in any manner it deems appropriate, including delivery to third parties. - Non-discrimination 7.01. ACC shall not discriminate against any person employed in the performance of the services herein contemplated, or against any applicant for such employment or in Che manner in which the services herein set forth are accomplished, because of race. religion, color, sex, physical handicap, age or national origin. ACC shall insert a similar non-discrimination provision in any agreement entered into by it in connection with outsideassistance retained as contemplated in Section 1.02.. ACC further agrees to comply with any and all equal employment opportunity and non -di e:c riminn ti on or :;1milar typo laws, rules and regulationsasin the context -of this Agreement shall be applicable and may, during the 'Perm of this Agreement, be binding on Client. Confidential itv 8.01. Except os is necessary for the staff of ACC to perform the services contemplated herein, all reports and recommendations prepared hereunder and all information, data, records, materials and similar items provided to or.obtainod by ACC, other than matters of public record, shall remain confidential and shall not be transmitted to any person or entity.: other than the client and its designated representatives and agents. Upon such transmittal, ACC shall have no further responsibility or liabil- ity in respect to the dissemination of the foregoing by Client and its agents and represontativas; but shall itself remain bound by this provision." 0 g Conflict of Interest 9.01. If any work or services currently being performed by ACC on other projects,. or any work or services to be performed by ACC on future projects, conflicts, directly or indirectly, with any pro- vision of this Consulting Agreement, ACC shall notify the Client of such conflict immediately upon obtaining knowledge thereof. ACC.shall not be precluded.from entering into independent consulting contracts with third parties relative to redevelopment activities within downtown Bangor provided that said contracts or the services to be provided thereunder are not in conflict withth,. provision. of -services by ACC to the Client under the terms of this Agreement_ ACC shall give Client written notice of said contracts. Noticos 10.01. Any notice which either p;irty desires or is required to give Lo the other in CoudecLion. with This Consulting Agreement shall be in writing and shall be sent postage Prepaid, certified mail, return receipt.requested, as follows: If to 'Client: John H. Flynn. CiLy Manger City Hall 73 Harlow Stl't'eL Bangor, Main,- 04401 and Douglas 11. Brown, President Bangor Center Development Corporation c/o Merle F. Coff The Bangor Center Project I17 Broadwav Bangor, Maioo 04401 If to ACC: The American City Corporation The American City Building Columbia, M:nyland 21044 Attn: David Shapiro, Director of Administration and Finance ' Merxer, Amendment and Assignability 11.01 This Agreement represents the entire agreement of the parties and supersedes all prior negotiations, representations or agreements, written or oral, all of which are deemed merged herein. 11.02 This Agreement may not be amended except in writing signed by the 'Client and ACC. 11.07. This Agreement may not be assigned by either party without the prior written consent of the Other party. The Ro=se Cnm an 12.01 The Client understands that (f) ACC is a wholly-owned subsidiary of The Rouse Comp+my, (if) pertain personal performing work under this Agreement will be employees of The Rouse Company, (iii) nothing in this Agreement is intended ns a commitment by ACC to influence: Or affect any business decision of The Rouse Company with respect to this Agreement and the subject Mauer herein, and (iv) The Rouse Company is independent of, and not involved in, this Agreement and shall not be foreclosed or forestalled from engaging iu any opportunity, whether or not such opportunity is in any way related CO. Or competes with, any property studied by ACC hereunder or any other provision of this Agreement. Coverniny Law 13.01. This Consulting Agreement ;hall be construed in accordance with the Laws of the State of Mainc. Any disputes arising out of or -10- in the course of this Agreement which are not resolved by mutual agree- ment of the parties hereto shall be resolved by litigation in the Maine Superior Court for Penobscot County. IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the day and year first above written. - WITNESS: THE CITY OF BANGOR. MAINE WITNESS: - INS BANGOR CENTER DEVELOPMENT CORPORATION RV ATTEST: THE AMERICAN CITY CORPORATION BY------- resi en�� t -11- SCHEDULE A Work Program Task @ 1 - ACC will, on written request by the City Manager, prepare and conduct presentations of the development plan to Mose parties identified by Client whose support is necessary for the accept- ance and adoption of the plan. Task 9 2 - On written request by rhe City Manager, ACC will provide.- the public with information concerning the project through the distribu- tion of appropriate materials and through presentations to community, business, and civic groups. Task d 3 - ACC will, on written request by the City Manager, program. and review all architectural, engineering, and other consulting services required to implement rho project and performed by other consultants retained by Client, including but norlimited to-: appraisals, engineering - studios and plan.., g .... ]echuic analyr:en, arr]riyectural and design studies and plans, market and feasibility analyacs, relocation studies, environ- mental .impact analyses, surveys, ant] ,structural analyses. Task 4 4 - ACC will on written request by the City Manager, assist Client in the establishment and administration of an architectural review process designed to ensure that plans submitted for construction of public and private development components are in accordance with approved design criteria and other relevant local objectives and laws. Task A S - ACC will update, on an as needed basis and as requested in writing by the City Manager, its cost estimates and financial pro formas for the various development program components to incorporate any changes in: development schedule, financing terms, prices for sale or lease of development parcels, development costs, operating and fixed costs, income from rentals and/or sales, and other relevant factors that would impact financial feasibility. - Task 0 6 - ACC will assist Client, onwrittenrequest by the City Manager, in the preparation of developer packages designed to identify and attract prospective developers, investors and other participants for various development projects and incorporating a description of the development program, the illustrative site plan, relevant market and financial data, developer selection criteria, and design criteria. Cn written request by the -City .Manager, -,SCC .will -make presentations of the development program to prospective participants and will respond to interested parties by providing detailed explanations of the intent of the project, Task @ 7 - ACC .will assist Client, on written request by the City Manager, in soliciting proposals from interested parties and in evaluating. proposals with resp,•rt io their enmpli:m ce will, ,•.•:tabl ished design. and developer selection criteria and will submit recommendations regarding the selection of developers. - - - Task 8'8 - ACC will assist, on ;written request by the City Manager, Client in negotiating developer designation agreements and the structure Of specific business arrangements with designated developers. Task t 9 - ACC will aid Client in providing assistance to developers, as necessary and as requested in writing by the City Manager, in the areas of planning and design, engineering, leasing and merchandising plans, and financial analysis and preparing financing packages, to11effort to bring their approved plans to fruition. ACC will not be responsible for providing developers with detailed surveys, engineering studies, development plans, etc, in conjunction with the sale or lease of each development parcel. -2- Consistent with the development pace outlined. in the Bangor develop- ment program and plan, the following 131.01"ts will receive priority attention, in such order of priority Is may be directed by the Client, by ACC during the term of this Agrccmunt: 1. Public and private improvement program for Main, Central, State and Broad Strcers. 2. Rehabilitation of existing buildings for office or residential use. 3. Marketing of B-11 parcel for apartment and/or commercial complex. 4'. Marketing of B-4, B-13 and B-15 for commercial and/or residential uses. - I- SCxgubut n Bangor. Wainc ACC Work Temn The ACC staff personnel referred to in Section 1.02 (hereinafter "ACC. Work Team") will be directed by Vice President of ACC, and Senior Development Director of ACC, and will include the following specialists (Brief resumes of these individuals are attached to this Agreement and incorporated herein by reference - ACC reserves the right to change members of the ACC Work Team as provided for in Section 1.02.): SCHEDULE f, Bangor, Plaine Redevelopment ImplemenuLLion Fee. A. when Earned The Redevelopment implementation Pec;: (as ser forth below) shall be deemed earned by ACC if and when the basic viability of the ACC Bangor Center Area redevelopment program shall be substantiated by .the "Imple- mentation and Redevelopment" of all or any one of the following described .'Redevelopment Projects" AND ACC was instrumental in achieving the same. ACC shall be deemed to have been instrumental in achieving a Redevelop- ment Project if it was substantially involved in the procurement of a developer for the Frojaot or provided subst:mtial services to a developer of the Project, which services may include, by way of illustration, the following: development of a viable use/rouse concept, development of rehabilitation plan•: for esisti:o: m cur: urs::, dev(lopmant of plans for Utilization -of undevoloped-Inud, development of a financing package, provision of marketirc assistance (market analysis, location of prospective tenants, etc.), and/or mmmgcmenr/Avve L,Pncnt "nuultation. In order to be eligible for .a Redevelopment INPI ante r a t inn Fee for a Redevelopment Project, ACC shill provide Client wifb a written narrative outlining its participation in a Redevelopment Project. Said narrative shall describe the efforts of ACC relative to the pro,h ct ill question. It is expressly understood by thepartieshereto that AIX: shall not be eligible for a - Redevelopment Implementation Fee in rq;ards to Redevelopment Projects for which it has not rendered service::. The Redevelopment Implementation Fees may be earned by ACC ip whole or in part in those amounts as set forth below, each of the Redevelopmeut Projects being deemed independent of the others. The Redevelopment Projects, each of rhe same being more particularly described in ACC's redevelopment program for the Bangor Center Area, as said Area is more particularly described in the Consulting Agreement between the parties dated January 22, 1982, and the Redevelopment Implementation Fee applicable to each areas follows: Redevelopment of Parcel B-4 $15,000 Redevelopment of Parcel B-11 $30,000 Redevelopment of Parcel B-13 - $30,000 Redevelopment of Parcel 8-15 - - $30,000 "Implementation and RedeveluPmout" of each of the Redevelopment Projects shall conclusively be deemedto hava•'Occurred if and when: (1) financial conavitmonts for funding of tho cos or actual physical work uu the parcicular Reduvvlopmonl I'ro jem ::L:J) be signed by the redeveloper', (2) a binding construction contract has been ontered Into pursuant to and in accordance with the redove loPmellt prberam, and (3) the City Council of the City of Bangor has authorirccl the oa Ic and/or lease of the Particular Urban Renewal Redevelopnmuc faro "I involved (i.e.. B-4, B-11, B-13, or 3-15) and/or any other City owned property involved, if any, and the sale. and/or lease actually sic urs. The City hereby agrees that such authorisation shall not be i l;$WY withheld by the Bangor City Council. - B. Termination The Client may remove an item from tale list of eligible redevelop- ment projects upon written notice to ACC. In that event, the Agreement shall be deemed terminated as to that particular project. In the event Client shall terminate this Agreement, or terminate any eligible redevelop- ment project, pursuant in Section 6.01 at any time during the Term hereof and "Implementation and Redevelopment" of ;LL1 or any one of the Redevelop- as , car edevelop- meat Projects shall thereafter occur, pursuant tothe provisions herein set forth, at any time during a twelve (12) month period following the date of termination, ACC shall be doomed to have earned said Redevelopment Fee for the particular Redevelopment Project. Similarly, in the event that at any time during a twelve (12) mundi period following the end of the Term of this Agreement, "ImPlemantnttun coal Redevelopment" of all or any one of the Redevelopment Projects shall. occur, pursuant to the provi- sions herein set forth,. ACC shall be deemed to have yarned said Redevelop- scat Implementation Fee for the ptrticolar Redevelopment Project. Provided, however, that the obligation hereunder shall not become effective unless ACC, within thirty (10) days from the termination of this Agreement or portion thereof, provides the. Client with written notice identifying the RadevelulMaeOL(s). to which this obligation might be applicable. -Said notice shat] ideal ify the pot cntial redevelopers, identify the property involved, describe the nature of the Proposed development, and outline the current status of the project. Payment of said Redevelopment Implements tient 14u shall be in accordance with the Provisions on this Schedule. C. When Paid Each of the separate portions of the Redevelopment Implementation Fees, as set forth above, shall be paid to ACC by Client within fifteen (15) days of receipt by the Client of written notification from ACC to the effect that the "Implementation and Redevelopment" for the particular Redevelopment Projeer has "conclusively occurred" as set forth in A above. In the event all or any portion of the Redevelopment Implementation Fees shall be earned by ACC during the twelve (12) month completion of the Term or Period after the .after eexminnli en of this Agreement pursuant to Section 6,01 or otherwise, all I-' -provided for in B above, the Fees, or portion thereof, so earned shall he paid to ACC by Client in accordance with the provisions set fetch in the eceding paragraph. D. Exception We Redevelopment Implementation f"o a. provided for in this Schedule C, shall be deemed earned or "'ItliL'ed co be paid in the event the Rouse Company or any subsidiary of it shall commit toor be involved in the Implementacion and Redevelopment of any of the Redevelopment Projects.