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HomeMy WebLinkAbout2019-09-09 19-368 Order 09/09/201919-368 09/09/2019 19-368 Engineering Order N/A Title, Order Authorizing Execution of a Contract with Northeast Paving in the Amount of $631,170 for Union Street Resurfacing Project On August 7, 2019, the City received one bid in the amount of $1,032,280 for the Union Street resurfacing project from Northeast Paving (formerly Lane's). This project is a Municipal Partnership Project (MPI) with MaineDOT where City of Bangor and MaineDOT each pay for 50 percent of the projects costs. Our agreement with MaineDOT was for a budget of $874,964.24. The City Engineer spoke with MaineDOT and they are unable to provide any additional funding for this project. In reviewing the bid from Northeast Paving, a couple of the bid items were higher than normal and include sidewalk paving and concrete curb. In order to move forward with this project, Northeast Paving is willing to complete all of the work for the project except for the curbing work and sidewalk pavement. Northeast paving has provided us with a revised bid for the project of $631,169.60. The City estimates that the removed items from the bid can be completed under current city contracts with the individual curbing company and publics work forces. We have reached out to Dirigo Slip Form Company and they are will to install the curb under their current City contract. We anticipate that this remaining work can be completed for about $212,304 (curbing estimated cost is $86304), which will bring the revised project total to $843,473.60 which is within the current project budget. Staff recommendation is to award the contract to Northeast Paving, the sole bidder, in the mutually agreed to revised amount of $631,170. Finance Committee 09/04/2019 Recommend for passage 50 New Business 09/09/201919-368 CITY OF BANGOR ORDER 09/09/2019 19-368 Sprague Authorizing Execution of a Contract with Northeast Paving in the Amount of $631,170 for Union Street Resurfacing Project Be it Ordered by the City Council of the City of Bangor that, the Finance Director is hereby authorized to execute a contract with Northeast Paving, in the amount of $631,170, for Union Street resurfacing project. 19-367 SEPTEMBER 9, 2019 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INDENTURE OF FINAL LEASE THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INDENTURE OF FINAL LEASE (this “Amendment”) shall amend that certain Second Amended and Restated Indenture of Final Lease, dated 28 October 2013 (having an Effective Date of June 23, 2006), by and between the CITY OF BANGOR, a municipal corporation organized and existing under and by virtue of the laws of the State of Maine (“Lessor”) and GLP CAPITAL, L.P. a limited partnership organized and existing under the laws of the Commonwealth of Pennsylvania (“Lessee”, as assigned by HC BANGOR, LLC, a limited liability company organized and existing under the laws of the State of Maine, f/k/a Bangor Historic Track, Inc.)(the “Lease”, capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to them in the Lease) and is being entered into on this _____ day of _______________, 2019, and shall be effective as of the Effective Date, by and between Lessor and Lessee, as more fully set forth herein. WHEREAS, Lessor and Lessee wish to adjust the terms and conditions of the Lease as to the revenue sharing provisions, the minimum number of Gaming Machines required to be located at the Gaming Facility, and the payment of personal property taxes; NOW, THEREFORE, in consideration of the provisions set forth in the Lease as amended by this Amendment, including, but not limited to, the mutual representations, warranties, covenants and agreements contained therein and herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby respectively acknowledged, and subject to the terms and conditions thereof and hereof, the parties, intending to be legally bound, hereby agree that the Lease shall be amended as follows: 1) Article IV of the Lease is repealed and replaced in its entirety with the following: ARTICLE I V COMPUTATION OF ANNUAL PAYMENTS Lessee covenants to pay to Lessor each and every year during the Term for the Premises the following amounts (collectively the “Required Payments”): 1. Rent: (a) Subject to the provisions of subsections (b) and (c) below, Lessee shall pay, without abatement, deferral or setoff (except as otherwise provided herein), to Lessor as rent an amount equal to $104,000 per annum (“Rent”). st (b) Effective upon January 1, 2013, and the on the January 1 of each fifth Lease Year of the Term thereafter (each an “Adjustment Date”), the then effective annual Rent shall be increased by an amount equal to the greater of the following: (i) five percent (5%); or (ii) the percentage increase in the “Consumer Price Index for Urban Wage Earners and Clerical Workers (‘CPI-W’),” U.S. City Average, “All Items Index,” as published by the United States Bureau of Labor Statistics (the “Index”). Such increases shall be computed from the Commencement Date, or the last Adjustment Date, as the case may be, through the first day of each five-year period for which an adjustment is being made hereunder. In the event that the Index is not then in existence, the parties shall use such equivalent price index as is published by any successor governmental agency then in existence or if none, then by such nongovernmental agency as may then be publishing an equivalent price index, in lieu of and adjusted to the Index. If the Index shall cease to use the 1982-84 average of 100 as the basis of calculation, or if a substantial change is made in the terms or number of items contained in the Index, the Index shall be adjusted to conform to such change, using such computation thereof, if available, as shall be employed by the United States Department of Labor in computing same. It is understood that the determination of the Rent increase for each five-year period after the first five years of the Term may be delayed until after the commencement of such five-year period, and in 19-367 SEPTEMBER 9, 2019 such event, Lessee shall continue to pay Rent at the annual rate applicable to the preceding five-year period until such determination is made, at which time Lessee shall pay, as additional rent, such unpaid Rent as is then accrued. (c) Rent shall be paid monthly in advance on the first day of each and every month. Lessee shall pay all rents herein required, without prior demand therefor, in lawful money of the United States, at the address of Lessor as set forth herein or at such other reasonable places as Lessor may designate. Late payments shall be subject to an interest charge of one percent (1%) per month to the date of payment. (d) In addition to Rent, Lessee shall pay twice yearly, in September and March (or otherwise at the same time as Lessee’s payment of personal property taxes is due to the City of Bangor) an amount equal to the value of personal property taxation revenue received by Lessor from the taxation of Lessee’s Gaming Machines (adjusted to reflect an assumed 1000 machines at an average assessed value of $6,616 per machine) located at the Premises as of April 1, 2019 (being $6,616,000.00) (the “2019 Tax Equivalent Payment”), less any such amounts as are paid in personal property taxes to Lessor from the taxation of Lessee’s Gaming Machines as may have been located at the Premises by Lessee in the immediately prior Lease Year, provided however, that the 2019 Tax Equivalent Payment level (subject to adjustment as set forth below) shall act as a minimum and if Lessee shall have paid more than the minimum in property taxes, no such amount shall be refundable to Lessee hereunder. Each fifth year of the lease term thereafter Lessee’s payment of the 2019 Tax Equivalent Payment hereunder shall be adjusted by in like manner as set forth in Section 1(b) above by the greater of 5% or the change in the Index. 2. Revenue Sharing: (a) Except as specifically set forth in Error! Reference source not found. hereof and/or as otherwise provided below, Lessee shall pay Lessor, without abatement, deferral, or set-off (except as expressly provided herein) revenue sharing equal to the sum of the following: (i) the amount the gaming operating lessee on the Premises is obligated to pay to Lessor as revenue sharing pursuant to 8 M.R.S.A. § 1011(4) (the “Section 1011(4) Payment”) and/or the amount received by Lessor via 8 M.R.S.A. § 1036(2-C) (the “Section 1036(2-C) Payment”), regardless of whether such gaming revenue is derived from the operations of Lessee or Gaming Sublessee as the case may be; plus (ii) an annual amount equal to three percent (3%) of the total Gross Slot Machine Income (as that term is defined below), regardless of whether such Gross Slot Machine Income is derived from the operations of Lessee or Gaming Sublessee as the case may be, minus amounts paid under subsection (i) above for such period; plus (iii) Effective ______, 2019, an annual amount that is equal to three percent (3%) of the total Gross Table Games Income (as that term is defined below), regardless of whether such Gross Table Games Income is derived from the operations of Lessee or Gaming Sublessee as the case may be minus amounts paid under subsection (i) above that are attributable to Gross Table Games for such period. (b) The amount payable under Section 2(a) above is hereinafter referred to as “Revenue Sharing.” Revenue Sharing shall be paid monthly on or before the 30th day following the end of such calendar month based upon results of Lessee’s (or Lessee’s Gaming Sublessee’s, as the case may be) operations for the preceding month. (i) For purposes of clarity, Lessee and Lessor acknowledge that the Section 1011(4) Payment and/or the Section 1036(2-C) Payment made under Section 2(a)(a)(i) above is 19-367 SEPTEMBER 9, 2019 intended to satisfy the minimum revenue sharing requirements of 8 M.R.S.A. § 1011(4) and/or 8 M.R.S.A. § 1036(2-C), as currently in effect. A copy of 8 M.R.S.A. § 1011(4) and 8 M.R.S.A. § 1036(2-C), as currently in effect, is appended hereto as EXHIBIT F for reference purposes. (ii) For the purposes of calculating Lessee’s payment obligations under Section 2(a) (a)(ii) above, “Gross Slot Machine Income” means money, tokens, credits or similar objects or things of value used to play a slot machine minus money, credits or prizes paid out to winners related or attributable to the Gaming Machines operated by Lessee (or Gaming Sublessee, as the case may be) that are located in the municipality. For the purposes of this Lease, “Gaming Machines” shall be and mean video lottery terminals and/or slot machines. (iii) For the purposes of calculating Lessee’s payment obligations under clause (a)(iii) above, “Gross Table Games Income” means money, tokens, credits or similar objects or things of value ventured by players in games of chance minus money, credits or prizes paid out to winners related or attributable to the table games operated or managed by Lessee (or Gaming Sublessee, as the case may be) that are located in the municipality. The parties further acknowledge that Gross Table Games Income as defined herein may be the same as “net table game income” as that term is used in 8 M.R. S.A. § 1036. (c) Lessee and Lessor acknowledge that an additional one percent (1%) of adjusted Gross Slot Machine Income is payable directly by Lessee to Lessor pursuant to 8 MRSA §1036(2)(J) (the “Section 1036(2)(J) Tax”) regardless of whether such Gross Slot Machine Income is derived from the operations of Lessee or Gaming Sublessee as the case may be. Notwithstanding that the Section 1036(2)(J) Tax is payable directly by Lessee to Lessor hereunder, the parties acknowledge that the State of Maine is currently collecting and distributing the Section 1036(2)(J) Tax. The parties hereby respectively acknowledge and agree to this present payment arrangement, however, the parties further agree that in the event the State of Maine ceases to act as the collection and payment agent with respect to said payments, Lessee will make, or cause its Gaming Sublessee to make, the required payments to Lessor in accordance with 8 M.R.S.A. §1036(2)(J). (d) Subject to the provisions of Error! Reference source not found. (the provisions of which shall control in the event of any inconsistency between this section and Error! Reference source not found.): (i) In the event of a revision or amendment to 8 MRSA §1011(4) and/or 8 M.R.S.A. § 1036(2-C) (or any future statute(s) controlling the same subject matter), that results in: (a) an increase in the Section 1011(4) Payment and/or the Section 1036(2-C) Payment amount or percentage, then the Revenue Sharing payable hereunder shall be automatically increased to such greater amount; (b) a decrease in the Section 1011(4) Payment and/or the Section 1036(2-C) Payment amount or percentage, then the amount of Revenue Sharing payable hereunder shall remain fixed so that at no time shall the Revenue Sharing payable hereunder drop below the 3% of total Gross Slot Machine Income and 3% of total Gross Table Games Income; and (ii) In the event of a revision or amendment to 8 MRSA §1036(2)(J) (or any future statutes) controlling the same subject matter), that results in: (a) an increase in the Section 1036(2)(J) Tax, then Lessee shall pay such higher amount to Lessor under Section 2(c) above; and 19-367 SEPTEMBER 9, 2019 (b) a decrease in the Section 1036(2)(J) Tax, then the amount of 1% as to Gross Slot Machine Income in effect at the time this Lease is signed shall be payable under Section 2(c) above. (e) Except as expressly set forth in Error! Reference source not found. hereof (the provisions of which shall control in the event of any inconsistency between this section and Error! Reference source not found.), if with respect to any Lease Year and regardless of whether or not Gaming Machines shall be in operation at the Premises, the Revenue Sharing determined in accordance with the provisions of Section 2(a) above is less than the minimum amounts set forth below (“Revenue Sharing Floor Amount”), then within 60 days following the end of such Lease Year Lessee shall pay to Lessor an amount equal to the Revenue Sharing Floor Amount in effect for that Lease Year minus the actual Revenue Sharing for such Lease Year. The Revenue Sharing Floor Amount shall be the amounts set forth below for the periods indicated: (i) During the initial 15-year Term of this Lease, the Revenue Sharing Floor Amount shall be an amount equal to $1,000,000 per Lease Year; and (ii) During the First Extended Term, Second Extended Term and Third Extended Term, the Revenue Sharing Floor Amount for each Lease Year shall be fifty percent (50%) of the actual Revenue Sharing paid by Lessee for the immediately preceding Lease Year. (f) Lessor and Lessee acknowledge that the Section 1011(4) Payment, the Section 1036(2-C) Payment, and the Section 1036(2)(J) Tax are imposed by Maine law requirements as to revenue sharing payments. Notwithstanding that such amounts are revenue sharing payments, failure to make payment of such amounts in accordance with the terms and provisions of this Lease shall constitute a violation of this Lease for which all remedies available for non-payment of rent shall apply. All other amounts, fees, charges and costs payable by Lessor hereunder shall be considered Rent or “Additional Rent.” (g) Except as provided below, in the event that prior to or during the Term hereof any form or forms of gaming or gambling in addition to and/or instead of slot machine gaming, and table gaming as authorized under currently existing law is/are legally enabled in the State of Maine (including but not limited to any “game of chance,” or “game of skill,” such as those terms are defined in 17 M.R.S.A. § 1831, video poker (other than forms of video poker already permitted as of the Effective Date through existing legislation governing slot machine gaming), keno, wagering on the outcome or scoring of sporting events (including but not limited to proposition wagers, parlay wagers, point total wagers, and/or future wagers) and/or the performance of participants in sporting events, or casino-style gaming (any or all of the foregoing, without limitation, being referred to herein as “Other Gaming”), then, as a condition precedent to such forms of Other Gaming being operated or allowed on the Premises, Lessor and Lessee shall establish through good faith negotiation the Revenue Sharing applicable to revenues generated from any forms of Other Gaming operated on the Premises. (h) Lessor shall have the right from time to time, upon written demand to Lessee, to review and audit the books, accounts, and reports of Lessee (or Gaming Sublessee, as the case may be) for the purpose of verifying compliance with the provisions of this Article I. Any such audit shall be upon reasonable advance notice and shall be conducted in a commercially reasonable fashion so as to minimize disruption to Lessee’s (and/or Gaming Sublessee’s, as the case may be) business operations. (i) Lessee shall pay to Lessor on or before __________, 2019, a one-time payment of $447,161.80. Commented \[PJVH1\]: This number will need to be adjusted as of August 31, 2019 2) Article V.1 of the Lease is repealed and replaced in its entirety with the following: 19-367 SEPTEMBER 9, 2019 Article V USE, OCCUPANCY AND ALTERATIONS TO PREMISES 1. Subject to Section 2(f) of Article I, Lessee (or Gaming Sublessee, as the case may be) shall have the right to use and occupy Riverside Block for any lawful business purpose including, without limitation, the purposes of operation of the Gaming Facility without regard to the number of Gaming Machines located at the Gaming Facility. Lessee shall (or shall require Gaming Sublessee, as the case may be) operate its businesses conducted at the Premises in a reasonably businesslike, careful, clean and reasonably safe manner. Lessee acknowledges that the Bangor City Assessor is an independent officer charged by State law with discovering, describing, and valuing property, as well as the ownership of that property, for the purpose of taxation within the City of Bangor and is not under the control of the Bangor City Council, City Manager, City Finance Director, City Solicitor, or any other municipal office or body, and that the consent of the City Assessor shall be a necessary condition of any final agreement by Lessor as to the taxation of Gaming Machines. 3) Article XVIII(e) of the Lease is repealed and replaced in its entirety with the following: (e) Lessee, or to the extent Lessee is not a gaming operator, Gaming Sublessee, as the case may be, abandons the Gaming Facility, for a cumulative total period of more than thirty (30) days during the Term hereof for reasons (a) not excusable due to force majeure events or circumstances or (b) not otherwise allowed or provided for in Section 4 of Error! Reference source not found. hereof; or 4) The Definition of “Gaming Impairment” in Article XXXIII(1) of the Lease is repealed and replaced in its entirety with the following: “Gaming Impairment” as used herein shall have the same meaning as Gaming Authority Termination. 5) Article XXXIII(3)(g) of the Lease is repealed in its entirety and replaced with the following: (g) INTENTIONALLY OMITTED 6) Article XXXIII(4)(b) of the Lease is repealed in its entirety and replaced with the following: (b) In the event of any Gaming Impairment, Lessee shall have the option to either (i) continue to operate (or require Gaming Sublessee, as the case may be, to continue to operate) Gaming Machines and occupy the Premises under this Lease (or, in the case of the Gaming Sublessee, the sublease) in accordance with its terms, including payment of Revenue Sharing, or (ii) cease operations at the Gaming Facility. Lessee shall have a period of 24 months following the effective date of the Law Change resulting in Gaming Impairment within which to notify Lessor whether Lessee will continue (or require Gaming Sublessee, as the case may be, to continue) or cease operations under this subsection 4(b). During such 24 month period, Lessee shall have the option, in its sole discretion, to cease operations at the Gaming Facility on an interim basis for all or any portion of such 24 month period. In any event, during any period of Gaming Impairment, whether or not any Gaming Machines are in operation, (i) Lessee shall be obligated to perform, and require Gaming Sublessee to perform, in part, as the case may be, all other covenants under this Lease, including without limitation, payment of all Rent and other amounts due hereunder, and (ii) Lessee shall pay to the Lessor, in lieu of Revenue Sharing (including payment of the Revenue Sharing Floor Amount), the greater of: (A) actual Revenue Sharing from Gaming Machines in operation, or (B) a reduced minimum revenue sharing amount, in lieu of the Revenue Sharing Floor Amount, in an amount equal to: (x) Fifty percent (50%) of the total revenue sharing amount per slot machine paid by Lessee during the last full Lease Year immediately prior to the period of Gaming Impairment, multiplied by (y) the maximum number of Gaming Machines that Lessee (or Gaming Sublessee, as the case may be) has authority to operate at the Gaming Facility during such 19-367 SEPTEMBER 9, 2019 period of Gaming Impairment. The reduced minimum revenue sharing amount shall be prorated on an appropriate basis for any partial year included in the period of Gaming Impairment. In the event of Gaming Impairment, Lessee shall (or shall require Gaming Sublessee, as the case may be, to) use commercially reasonable efforts to reverse or modify the Law Change and/or petition as soon as possible to cause a reinstatement of Lessee’s (or Gaming Sublessee’s, as the case may be) authority to operate Gaming Machines. As soon as possible, using commercially reasonable efforts, upon termination of any period of Gaming Impairment, Lessee (or Gaming Sublessee, as the case may be) shall commence operation of Gaming Machines at the Premises. 7) Article XXXII of the Lease is hereby amended to provide the following new Section 8 of Article XXXII, which provides the following: 8. Parking Fees. Lessee shall be permitted to charge parking fees to customers in the parking garage adjacent to the Gaming Facility from time to time. Except as modified hereby the Lease remains in full force and effect. \[REMAINDER OF PAGE LEFT BLANK - SEPARATE SIGNATURE PAGES FOLLOW\] 19-367 SEPTEMBER 9, 2019 IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by each of the undersigned as of the date first above written. LESSOR: CITY OF BANGOR WITNESSETH: By: Catherine M. Conlow, its City Manager STATE OF MAINE : SS COUNTY OF PENOBSCOT : On this ____ day of _______________2019, personally appeared the above-named Catherine M. Conlow, as City Manager of the City of Bangor who acknowledged the foregoing instrument to be her free act and in her said capacity and the free act and deed of said City of Bangor. _____________________________________________________ Notary Public/Attorney at law Name: Commission Expires: 19-367 SEPTEMBER 9, 2019 LESSEE: GLP CAPITAL, L.P. By: Gaming and Leisure Properties, Inc., its general partner WITNESSETH: By: Brandon Moore, Executive Vice President, General Counsel and Secretary COMMONWEALTH OF PENNSYLVANIA: SS COUNTY OF BERKS : On this ____ day of _____________ 2019, personally appeared the above-named Brandon Moore, Executive Vice President, General Counsel and Secretary of said GAMING AND LEISURE PROPERTIES, INC., a Pennsylvania corporation, the general partner of GLP Capital, L.P., and acknowledged the foregoing instrument to be his free act and deed in his said capacity, and the free act and deed of said partnership. _____________________________________________________ Notary Public/Attorney at law Name: Commission Expires: IN CITY COUNCIL SEPTEMBER 9,2019 CO 19-368 MOTION MADE AND SECONDED FOR PASSAGE PASSED CITY ERK