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HomeMy WebLinkAbout2013-07-08 13-233 ORDERCOUNCIL ACTION Item No. 13-233 Date: July 8, 2013 Item/Subject: Order, Authorizing Execution of a Lease with Bangor Nursing and Rehabilitation Center — 103 Texas Avenue Responsible Department: Legal Commentary: Since 2001 the City has leased space from the Bangor Nursing and Rehabilitation Center for the City's Health and Community Services Department. The most recent lease was for a three year period ending July 1, 2013. The lease provides that the City has an option to renew the lease for an additional three years under the same terms and conditions. This Order, if approved, will authorize the execution of a new three year lease under the same terms and conditions as the existing lease. Manager's Comments: Associated Information: Budget Approval: Legal Approval: Introduced for Passage First Reading Referral Page _ of Department Head City Manager nce Director Solicitor f°s 4 13-233 • JULY 8, 2013 Assigned to Councilor Baldacci CI'T'Y OF BANGOR Spy _- �'44iEDfE j i (TITLE.) . ORDER, Authorizing Execution of a Lease with Bangor Nursing and Rehabilitation Center —103 Texas Avenue By the Oty Counts/ of the Oty of Bangor. ORDERED, THAT Catherine M. Conlow, City Manager, is hereby authorized on behalf of the City of Bangor to execute a Lease with Bangor Nursing and Rehabilitation Center for space for the City of Bangor Department of Health and Community Services at 103 Texas Avenue. Said Lease shall be substantially the same form as attached hereto and in a final form as approved by the City Solicitor or assistant City Solicitor. IN CITY COUNCIL July 8, 2013 a d CITY Oum 13-233 JULY8, 2013 LEASE AGREEMENT This Indenture of Lease made and executed in duplicate this day of , 2013, by and between: Bangor Nursing and Rehabilitation Center, having a place of business at 103 Texas Avenue, Bangor, County of Penobscot, State of Maine (hereinafter sometimes referred to as "Lessor") and City of Bangor, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Maine, and having its principal offices at 73 Harlow Street, Bangor, County of Penobscot, State of Maine (hereinafter sometimes referred to as "Lessee"). WITNESSETH: WHEREAS, the Bangor Nursing and Rehabilitation Center is the owner of a certain parcel or lot of land and building thereon at 103 Texas Avenue, Bangor, Maine; and WHEREAS, the Lessee wishes to lease space in said building for the purpose of operation of the Lessee's Department of Health and Community Services. NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE I — PREMISES The Lessor, for and in consideration of the rents to be paid and the obligations to be performed by the Lessee as hereinafter provided, does hereby demise and lease unto Lessee, and the Lessee does hereby take and lease, upon and subject to the terms and conditions hereinafter expressed, a portion of the building at 103 Texas Avenue as more particularly described in Exhibit A attached hereto. ARTICLE II— TERMS TO HAVE AND TO HOLD the demised premises (as described hereinabove) unto the Lessee for a term of three (3) years beginning on July 1, 2013, and terminating on July 1, 2016. Lessee shall have the option to renew this lease for an additional term of three (3) years under the same terms and conditions contained herein. ARTICLE III COMPUTATION OF RENT During the initial term of this lease, Lessee covenants to pay to the Lessor as rental for the premises leased hereunder $10.00 per square foot per year for the premises occupied. 13-233 JULYS, 2013 ARTICLE IV - USE, OCCUPANCY, AND ALTERATIONS TO PREMISES Lessee shall have the right to use, occupy and maintain the premises herein leased in a reasonably business -like, careful, clean and reasonably safe manner for the purposes of operating activities and programs related to its Department of Health and Community Services. All alterations to premises occupied by Lessee shall be submitted in writing and reviewed for approval by the Lessor. Lessor shall timely respond to Lessee's request and its consent shall not be unreasonably be withheld. It is further agreed that the Lessee shall be financially and operationally responsible (directly or indirectly) for all upkeep including custodial, maintenance, and repairs for all areas occupied or used by the Lessee with the exception to the following items expressly listed. (Roof repairs or replacement, heating system, electrical system and maintaining the existing utility feeds to the Lessee's portion of the building). Lessor retains the right to make building improvements at any time and as necessary, but shall not do so in a manner so as to interfere with Lessee's use and occupancy of the premises. ARTICLE VI- HAZARDOUS WASTE Lessee hereby covenants and agrees that it shall not, during the term of this lease, including any extension or renewal hereof, permanently place, cause to be placed, deposit or discharge any hazardous waste upon the demised premises, and further expressly agrees that it shall indemnify Lessor from any and all cost, expense or liability, or whatever kind of nature, incurred by the Lessor in detecting, evaluating, removing, treating, disposing of or otherwise responding to any hazardous waste placed or deposited by Lessee in violation of this Article. Lessee hereby covenants and agrees that it shall not, during the term of this lease, including any extension or renewal hereof, violate any local, state or federal regulation, ordinance or statute pertaining to hazardous waste or hazardous material and further expressly agrees that it shall indemnify Lessor for any such violation by Lessee. Such costs shall be deemed to include, without limitation, Lessor's cost of defending any suit filed by any person, entity, agency, or governmental authority, paying any fines imposed in connection with such suit; paying any judgments or otherwise settling any damage claims; complying with any order by a court of competent jurisdiction directing the Lessor to take remedial action with respect to such waste; and of all associated attorney's fees and costs. For the purpose of this Article, the term "hazardous waste" shall be deemed to include every substance now or hereafter designated as a hazardous waste under any provision of state or federal law. Lessee's obligations under this Article shall be deemed to survive the expiration of termination of this Lease, but shall be limited to acts or occurrences by Lessee, its agents, employees and assigns, during the term, or any extension or renewal thereof, of this Lease. 13-233 JULYS, 2013 ARTICLE VII- LIABILITY AND PROPERTY DAMAGE INSURANCE The Lessee, during the entire term of this agreement, or any extension thereof, shall maintain, at its sole expense, insurance of the following types with companies authorized to do business in the State of Maine for the protection of the Bangor Nursing and Rehabilitation Center, who shall be named as an additional insured against all claims, losses, costs or expenses arising out of injuries to persons whether or not employed by Lessee or damage to property whether resulting from acts, omissions, negligence or otherwise of the Lessee, its directors, offices, employees and agents and arising from Lessee's use of the premises or any part or portion thereof Comprehensive Public Liability Bodily Injury $1,000,000.00 each occurrence Comprehensive Property Damage $1,000,000.00 each occurrence Workers' Compensation Insurance Lessor shall not be required to provide insurance coverage and shall have no responsibility for any property owned by the Lessee or third parties which may be located on the leased premises. Lessee shall cause to be furnished to the Lessor evidence in the form of certificates of insurance of the existence and continuance in force of the insurance required hereunder. Lessor shall be notified of any changes for discontinuance of coverage. ARTICLE VIII- DAMAGE BY FIRE OR OTHER CASUALTY Lessee agrees that in the event of destruction or damage of the demised premises leased by Lessee, or to any part thereof, and as often as the improvements shall be damaged, by fire or other casualty, Lessor shall have the right but not the obligation to rebuild and repair the improvements for occupancy. If Lessor elects not to rebuild and repair, it shall so notify Lessee within thirty (30) days or more expeditiously if possible of its decision. Lessee shall then have the option to terminate this lease and the right after notice to Lessor. In the event Lessor decides to rebuild and repair said damages all improvements shall be restored to their state and condition prior to said fire or other casualty. ARTICLE IX - NONDISCRIMINATION Lessee for itself, its personal representatives, successors in interest and assigns, and as part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that (1) no person or group of persons shall be excluded on the grounds of race, color, or national origin from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use or occupancy of said demised premises; (2) in the construction of all improvements, buildings, structures, on, over or under such land and the furnishing of services thereon, no person or group of persons shall be excluded on the grounds of race, color, or national origin from participation in, denied the benefits of, or be otherwise subjected to unlawful 13-233 JULYS, 2013 discrimination; and (3) Lessee shall use the premises in compliance with all other requirements as may be imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended. In the event of breach of any of the above nondiscrimination covenants, the Lessor shall have the right, after failure of Lessee to rectify such breach within thirty (30) days after receipt of notice from Lessor, to terminate of this agreement. Provided, however, that Lessor shall not have the right to initiate termination of the Lease under this Article with respect to any complaint of discrimination which is pending final resolution or adjudication before any agency or court of the State of Maine or the United States. ARTICLE X - COVENANTS OF QUIET ENJOYMENT The Lessee, subject to the terms and provisions of this Lease on payment of rent, and observing, keeping and performing all the terms and provisions of the 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 term hereof without hindrance or rejection by the Lessor or any other persons. ARTICLE XI— LIENS The Lessee agrees not to allow any lien to be placed against the demised premises, and buildings, structures or improvements thereof. The Lessor and the Lessee further agree that if any liens are placed, each will promptly discharge (either by payment or filing of the necessary bond or otherwise) any mechanics', material men's or other liens against the demised premises, and buildings, structures or improvements thereon, which liens may arise out of any payment due for labor, services, material, supplies or equipment which may have been furnished to or for the Lessor or the Lessee, respectively. ARTICLE XII - TITLE TO IMPROVEMENTS Title to the fixed improvements constructed on the demised premises during the term of this Lease, or any extension thereof, shall be in the name of the Lessor, and during such term or extension thereof, the Lessee shall have the right, as its sole expense, to remove any and all personal property erected or located on the demised premises, provided that in the event of the removal of improvements, the premises shall be restored to its current condition. ARTICLE XIII - REMOVAL OF PROPERTY Upon the termination or final expiration of this Lease, the non -fixed improvements and other personal property erected or located upon the demised premises by the Lessee shall remain the property of the Lessee, and the Lessee shall have the right to remove the same from the demised premises within sixty (60) days from the date of termination or final expiration of this Lease. Any such property not so removed within said sixty (60) days shall become the property of the Lessor to dispose of in such a way as the Lessor may deem fit. In the event the Lessee elects to remove said improvements and other personal property, the buildings and land appurtenant 13-233 JULYS, 2013 thereto shall be returned to as near as possible its condition as at the commencement of the Lease, ordinary wear and tear expected. In the event the Lessee shall fail to remove any moveable personal property within sixty (60) days from the date of termination or final expiration of this Lease, Lessor shall be entitled to recover from the Lessee, Lessor's reasonable costs incurred in removing or disposing of such personal property. In such event, there shall be deducted from Lessor's costs of the fair value to the Lessor actually realized from sale, use or other disposition of the personal property concerned. ARTICLE XIV - SURRENDER OF POSSESSION Subject to the provisions contained in Article XIII, the Lessee shall, upon termination of this Lease, surrender the quiet and peaceable possession the demised premises. ARTICLE XV -TERMINATION It is covenanted and agreed that: (1) If the Lessee shall neglect or fail to pay the rent or other charges payable hereunder and such default shall continue for a period of thirty (30) days after written notice thereof by Lessor; or (2) If Lessee shall neglect or fail to perform or observe any of the other covenants, terms, provisions, or conditions on its part to be performed, or observed, and such neglect or failure shall continue for a period of thirty (30) days after written notice thereof by Lessor, or such covenants, terms provisions or conditions cannot be performed or observed within said thirty (30) day period, if Lessee fails to diligently prosecute the curing of such neglect or failure; or (3) If title to the demised premises revert to or is conveyed to the City of Bangor, the Lessee's obligation to pay rent to the Lessor shall cease. The, and in any of the said cases outlined above, the Lessee may be considered in default hereunder and Lessor may terminate this Lease Agreement. It is further covenanted and agreed that: (1) If Lessor shall neglect or fail to perform or observe any of the other covenants, terms, provisions, or conditions on its part to be performed, or observed, and such neglect or failure shall continue for a period of thirty (30) days after written notice thereof by Lessee, or such covenants, terms provisions or conditions cannot be performed or observed within said thirty (30) day period, if Lessor fails to diligently prosecute the curing of such neglect or failure, then the Lessor may be considered in default hereunder and Lessee may terminate this Lease Agreement. 13-233 JULYS, 2013 ARTICLE XVI- ASSIGNMENT, SALE AND SUBLETTING The Lessee shall not at any time assign, sell, convey or transfer this Lease or any interest therein, or sublease or sublet or rent the premises, or any part thereof, without the prior written consent of the Lessor which consent shall not be unreasonably withheld, delayed, or conditioned. In the event of an approved sublease all provisions shall extend to, bind and inure to the benefit of not only the Lessor and Lessee but also their successors and assigns. Lessee shall have the right to assign this Lease to any corporation with which it may have become merged, consolidated or otherwise associated, or any corporation, which may be a subsidiary of the Lessee. In no event, however, shall the Lessee named herein be relieved from any obligation under this Lease by virtue of any assignment or subletting. ARTICLE XVII- AUTHORITY TO ENTER INTO AGREEMENT The Lessor hereby represents and warrants that it has taken all necessary procedural and legal steps as required by federal, state and local laws and regulations, and all necessary corporate action for the purpose of authorizing the execution of this agreement and that execution of this agreement by on of its undersigned corporate officers renders this agreement a valid and binding document on the part of the Lessor and the same is fully enforceable in all of its terms and conditions by the Lessee. Lessee hereby represents and warrants that it has taken all necessary procedural and legal steps as required under all federal, state and local laws and regulations, and all necessary corporate action to authorize the execution of this agreement by the City Manager and that upon such execution this agreement is valid on the part of the City of Bangor and is fully enforceable in all of its terms and conditions. ARTICLE XVIII- WAIVER Failure on the part of the Lessor to complain of any action or non -action on the part of the Lessee no matter how long the same may continue, shall never be deemed to be a waiver by the Lessor of any of Lessor's rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by Lessor, shall be construed as a waiver of any other provisions hereunder, and that a waiver at any time of any of the provisions hereof shall not be constructed at any subsequent time as a waiver of the same provisions. The approval of Lessor or any action by the Lessee requiring the Lessor's consent or approval shall not be deemed to waive or render unnecessary the Lessor's consent or approval of any subsequent similar act by the Lessee. ARTICLE XIX - NOTICES Notices to the Lessee provide for in this Lease shall be sufficient if sent by registered or certified mail, return receipt requested, postage prepaid to: City Manager, City of Bangor, City Hall, 73 Harlow Street, Bangor, Maine 04401; and notices to Lessor are to be sent by registered or certified mail, return receipt requested, postage prepaid, addressed to: Administrator, Bangor 13-233 3ULY8, 2013 Nursing and Rehabilitation Center, 103 Texas Avenue, Bangor, Maine 04401, or to such other respective addresses as the parties may designate to each other in writing from time to time. ARTICLE XX - INVALIDITY OF PARTICULAR PROVISIONS If any term or provisions of this Lease or the application thereof to any person or circumstances is hereafter determined to be to any extent, invalid or unenforceable, the remainder of this Lease or the application of such terms and provisions to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected hereby and such term and provision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. ARTICLE XXI - CONSTRUCTION The headings appearing in this Lease are intended.for convenience and reference only, and are not to be considered in construing this Lease. ARTICLE XXII - NO PARTNERSHIP OR JOINT VENTURE CREATED Nothing contained herein shall be deemed or constructed 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 contained herein or any acts of the parties hereto shall be deemed to create any relationship between the parties other than the relationship of landlord and tenant. ARTICLE XXIII - GOVERNING LAW This Lease shall be governed exclusively by the provisions hereof and by the laws of the State of Maine as the same may from time to time exist. ARTICLE XXIV - MEMORANDUM OF LEASE Upon execution of this Lease, the parties may, upon request of either, prepare and execute a Memorandum of Lease in a form suitable for recording at the Penobscot Maine Registry of Deeds, as evidence of Lessee's interest in the premises demised herein. ARTICLE XXV - AMENDMENT TO LEASE This Lease contains all the terms and conditions between the parties hereto and no alteration, amendment or addition hereto shall be valid unless in writing and signed by both parties hereto. 13-233 JULYS, 2013 IN WITNESS WHEREOF, the parties hereto have set their hand and seals the day and year written above. Witness Witness CITY OF BANGOR Catherine M. Conlow City Manager BANGOR NURSING AND REHABILITATION CENTER Name: Title