HomeMy WebLinkAbout2014-02-24 14-101 ORDERCOUNCIL ACTION
Item No. 14-101
Date: February 24, 2014
Item/Subject ORDER, Authorizing the City Manager to Execute a Lease with the
Bangor Farmers Market Association — Abbott Square
Responsible Department: Community & Economic Development
Commentary: This Order would authorize the City Manager to execute a Lease with the
Bangor Farmers Market Association. The Bangor Farmers Market Association wishes to
continue the farmers market in the Upper Abbott Square parking lot on Harlow Street. The
Association wishes to enter into a three-year lease with the City for use of a portion of Upper
Abbott Square parking lot on Sundays from 9 AM — 4 PM; April 1, 2014 through November 30,
2014, April 1, 2015 through November 30, 2015 and April 1, 2016 through November 30, 2016.
The lease rate would be $25 for each of the years.
The lease and terms thereof were reviewed and approved by a 3-2 vote of the Business &
Economic Development Committee at its meeting on February 18, 2014.
Manager's Comments:
Associated Information:
Budget Approval:
Legal Approval:
Introduced for
Passage
First Reading
Referral
Department Head
City Manager
XA44�
Finance Director
City Solicitor
Page _of_
AS AMENDED
1.4-101
FEBRUARY 24, 2014
Assigned to Councilor Civiello
CITY OF BANGOR
(TITLE.) ORDER, Authorizing the City Manager to Execute a Lease with the
Bangor Farmers Market Association — Abbott Square
WHEREAS, the Bangor Farmers Market Association wishes to continue a farmers market in
the City of Bangor; and
WHEREAS, the City of Bangor is the owner of a parking lot on Harlow Street known as the
Upper Abbott Square parking lot; and
WHEREAS, the parties agree that use of a portion of the Upper Abbott Square parking lot
would be a suitable place for a farmers market; and
WHEREAS, the Association wishes to enter into a multi-year agreement with the City for use
of a portion of Upper Abbott Square parking lot on Sundays from 9 AM - 4 PM;
April 1, 2014 through November 30, 2014; and
WHEREAS, the lease rate would be $0.00.
BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT the City
Manager is hereby authorized to execute an Indenture of Lease with the Bangor Farmers
Market Association, a copy of which is attached, and in a final form as approved by the City
Solicitor or Assistant City Solicitor.
14-101
FEBRUARY 24, 2014
Assigned to Councilor Civiello
CI`T'Y OF BANGOR
(TITLE.) ORDER, Authorizing the City Manager to Execute a Lease with the
Bangor Farmers Market Association — Abbott Square
WHEREAS, the Bangor Farmers Market Association wishes to continue a farmers market in
the City of Bangor; and
WHEREAS, the City of Bangor is the owner of a parking lot on Harlow Street known as the
Upper Abbott Square parking lot; and
WHEREAS, the parties agree that use of a portion of the Upper Abbott Square parking lot
would be a suitable place for a farmers market; and
WHEREAS, the Association wishes to enter into a multi-year agreement with the City for use
of a portion of Upper Abbott Square parking lot on Sundays from 9 AM - 4 PM;
April 1, 2014 through November 30, 2014, April 1, 2015 through November 30,
2015 and April 1, 2016 through November 30, 2016; and
WHEREAS, the lease rate would be $25.00 for each of the three years of the agreement;
and
WHEREAS, the lease and terms thereof were reviewed and approved by the Business &
Economic Development Committee on February 18, 2014:
BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT the City
Manager is hereby authorized to execute an Indenture of Lease with the Bangor Farmers
Market Association, a copy of which is attached, and in a final form as approved by the City
Solicitor or Assistant City Solicitor.
IN CITY COUNCIL
February 24, 2014
Motion made and seconded to amend order 14-101 by substitution
with a change to a one year lease with no fee.
Clayton Carter, representing the Farmers Market group, indicated that
they have no issues with paying a fee and would also like to have a
three year lease.
Motion Doubted
Vote: 8-1
Councilors Voting Yes: Baldacci, Blanchette, Civiello, Durgin,
Gallant, Nealley, Plourde, Sprague
Councilors Voting No: Graham
Amendment Passed
Motion made and seconded for Passage as Amended
Pass d
CITY CIMRK
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INDENTURE OF LEASE
TM INDENTURE OF LEASE, executed this day of , 2014 by and between:
CITY OF BANGOR, a municipal corporation organized and existing under the laws of
the State of Maine, and having its principal offices at 73 Harlow Street, Bangor, Maine
(hereinafter sometimes referred to as "Lessor")
.Z�
BANGOR FARMERS'MARKET ASSOCIATION, an association doing business
in Penobscot County, State of Maine (hereinafter sometimes referred to as "Lessee")
WITNESETH:
WHEREAS, the Bangor Farmers' Market Association wishes to establish a farmers' market in the
City of Bangor and prefers to be in the downtown; and
WHEREAS, the City of Bangor is the owner of a parking lot on Harlow Street known as the Upper
Abbot parking lot; and
WHEREAS, the parties agree that use of a portion of the Upper Abbot parking lot would be a suitable
place for a farmers' market.
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 Lessee
as hereinafter provided, does hereby demise and Lease unto the Lessee, and the Lessee does hereby take and
hire, upon and subject to the terms and conditions hereinafter expressed a portion the existing parking lot
located on Harlow Street, Bangor, Maine and further described and shown on a plan attached hereto as Exhibit
"A"
ARTICLE II — TERM
To have and to hold the demise premises for the following tem: April 1 st, 2014 through November 30th,
2014, April 1, 2015 through November 30, 2015 and April 1, 2016 through November 30, 2016. The parties
agree that this lease may be renewed under such temps and conditions as the parties may agree.
ARTICLE III — COMPUTATION OF ANNUAL RENTAL
The Lessee shall pay the Lessor $25.00 for each of the three years of this Lease. The payment is due by
April 1" of each respective year.
ARTICLE IV — USE, OCCUPANCY AND ALTERATIONS TO PREMISES
A. Lessee shall have the right to use, occupy and maintain the premises herein described in a reasonably
businesslike, careful, clean, and reasonably safe manner for the purposes of conducting a farmers' market which
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sells produce and farm crafts according to Lessee's regulations.
B. Lessee shall not use, occupy or maintain said premises in any manner so as to violate any
municipal, state, federal law or regulation.
C. Lessee shall have the right to use the premises during the period of April 1 st, 2014 through
November 30th, 2014, April 1, 2015 through November 30, 2015 and April 1, 2016 through November 30,
2016
D. Lessee shall only be permitted to use the premises on Sunday from 9:00 am. to 4:00 p.m.
E. Lessor shall have the right to designate vendor parking areas, customer parking areas, and traffic
circulation within the demised premises. Traffic circulation shall be subject to approval of Lessor's
Engineering or Community and Economic Development Department staff.
F. Vendor vehicles and customer vehicles shall only be placed in the paved parking areas.
Overnight parking of vehicles is expressly prohibited.
G. Lessee shall be responsible for daily cleanup and removal of any litter associated in any way
with the operation of the farmers' market.
H. Lessee shall be permitted to locate sandwich board signs which direct the public to the farmers'
market as pemutted by the Code of the City Bangor.
I. Lessor, or its agents, shall have at all reasonable times the right to go on and inspect the premises
with an authorized representative of the Lessee, and the right of access to utility systems located on the
demised premises for the purposes of maintenance, repair, correction, or inspection.
ARTICLE V — LIABILITY AND PROPERTY DAMAGE INSURANCE
The Lessee, during the entire term of this Lease, or any extension hereof, 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 City of Bangor, which is to be named as an additional insur- d against all claims, including
wrongful death, 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, officers, employees and agents and arising from Lessee's use of the premises or any part
or portion thereof. In addition, Lessee shall name Republic Parking Systems, Inc. as an additional insured under
all policies required herein.
Comprehensive Public Liability
Bodily Injury or Death
$400,000.00 each occurrence, whether for
one person or more than one person
Property Damage
$400,000.00 each occurrence
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 famished to the Lessor, upon execution of this Lease, evidence in the form of certificates of insurance of the
existence and continuance in force of the insurance required hereunder. Said certificates shall be updated and
provided to Lessor during this Lease. Lessor shall be notified of any changes or discontinuances of coverage.
The minimum insurance coverage required under this Article shall be deemed to be automatically adjusted
Whenever the Maine State Legislature shall increase the Lessor's maximum liability for personal injury or
property damage claims brought under the Maine Tort Claims Act. In the event of such an increase, the
minimum insurance coverage required shall be no less than the Lessor's maximum liability for such claims
under the Maine Tort Claims Act.
ARTICLE VI — INDEMNITY
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During the term of this Lease and during any holdover tenancy following regular expiration or early
termination hereof, Lessee shall protect, defend and hold Lessor, and its inhabitants, officers, employees and
agents completely harmless from and against any and all liabilities, losses, suits, claims, judgments, fines or
demands arising by reason of injury or death of any person or damage to any property, including all reasonable
costs for investigation and defense thereof (including but not limited to attorneys' fees, court costs, and
expert witness fees), of any nature whatsoever arising out of or incident to this Lease and/or the use,
occupancy, conduct, or management of the leased premises or the acts or omissions of Lessee's officers,
agents, employees, contractors, subcontractors, licensees, or invitees, except to the extent that such claims,
suits, demands, judgments, costs, and expenses may be attributed to the acts or omissions of the Lessor, its
agents, employees or invitees. The Lessee shall give to Lessor reasonable notice of any such claims or
actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations
under this Article.
During the term of this Lease and during any holdover tenancy following regular expiration or early
termination hereof; Lessee fur Cher hereby expressly agrees that it will defend, indemnify and hold Lessor
harmless from any and all claims made or asserted by the Lessee's agents, servants, members or employees
arising out of the Lessee's activities under this Lease. For this purpose, the Lessee herebyy garessl
this paragraph shall extend to and include any and all costs incurred by Lessor to answer, investigate, defend and
settle all such claims, including but not limited to Lessor's costs for attorneys fees, expert and other witness
fees, the cost of investigators, and payment in full of any and all judgments rendered in favor of the Lessee's
agents, servants, members, or employees against the Lessor in regard to claims made or asserted by such agents,
servants, members, or employees.
ARTICLE VII — NONDISCRINIINATION
Lessee hereby agrees that it will conduct its operations only according to its written regulations or
bylaws, but at no time shall it refuse to sell its produce or other wares to any person or entity because of the
race, sex, religion, national origin, or physical or mental handicap of that person or entity. Notwithstanding the
termination provisions ofparagraph 3 of Article XIII, Lessee shall cure any breach of this non-
discrimination covenant within five (5) days of written notice by Lessor of said breach, after which time Lessor
has the right to terminate this Lease.
ARTICLE VIII — COVENANTS OF QUIET ENJOYMENT
The Lessee, subject to the terms and provisions of this Lease on payment of the 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 IX — LIENS
'Ihe Lessor agrees that it will promptly discharge (either by payment or by filing of the necessary bond
or otherwise) any mechanics', materialmen's or other liens against the demised premises, any buildings,
structures or improvements thereon, which liens may arise out of any payment due for labor, services, materials,
supplies or equipment which may have been furnished to or for the Lessor, its agents, employee, members, or
servants, related in any way to the terms of this Lease.
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ARTICLE X — MAINTENANCE AND REPAIRS
Lessee shall, at its sole expense and cost, throughout the term hereof, repair any damage to the premises
and nearby grounds and landscaping which may have been or was actually caused by the members, agents,
employees, servants, or customers of Lessee. Lessee and Lessor shall inspect the premises together immediately
prior to June 1 sof each year of the term of this Lease for reference purposes. Normal wear and tear
deterioration of the pavement surface is excepted from this Article.
ARTICLE XI — REMOVAL OF PROPERTY
A. Any movable personal property that may be financed, erected or installed by Lessee from
time to time during the term of this Lease shall remain the property of the Lessee, and, upon termination or
expiration of this Lease, Lessee shall have the right to remove the same from the demised premises within
twenty-four (24) of said termination. Any such property not so removed within twenty hours (24) from the date
of termination shall become the property of the Lessor to be disposed of in such way as it may deem fit. In
the event Lessee elects to remove said improvements and other personal property, the buildings and land
appurtenant thereto shall be returned to as near as possible their conditions as at the commencement of this
Lease, damage by accidental fire and casualty and reasonable wear and tear excepted.
B. In the event Lessee shall fail to remove any non -permanent improvements or personal
property within twenty-four (24) hours 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
non -permanent improvements or personal property. In such event, there shall be deducted from Lessor's
costs the fair value to the Lessor actually realized from sale, use or other disposition of the particular
improvements or personal property concerned.
ARTICLE XII - SURRENDER OF POSSESSION
Subject to the provisions contained in Article XIII, the Lessee shall, upon the termination of this
Lease, surrender the quiet and peaceable possession of the demised promises.
ARTICLE XIII — TERMINATION
It is covenanted and agreed that:
(1) This agreement can be terminated by either party without cause by providing notice on or before
December 31 st of each year of the term;
(2) 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 ten (10) days after written notice thereof by Lessor;
(3) 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 pursuant to this Lease, and such neglect or
failure shall continue for a period of thirty (30) days after written notice thereof by Lessor, or if 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;
(4) If the estate hereby created shall be taken on execution or by other process of law,
(5) If the Lessee shall be declared bankrupt or insolvent according to law;
(6) If any assignment shall be made of the property of the Lessee for the benefit of creditors;
(7) If a receiver, guardian, conservator, or trustee in bankruptcy or other similar officer
shall be appointed to take charge of all or any substantial part of the Lessee's property by a Court of competent
14E 101
jurisdiction;
(8) Ifa. petition shall be filed for a reorganization of the Lessee under provisions of the Bankruptcy
Act now or hereafter enacted; or
(9) If the Lessee shall file a petition for such reorganization or for arrangements under any
provision of the Bankruptcy Act now or hereafter enacted.
THEN, IN ANY OF THE SAID CASES (notwithstanding any license of any former breach of
covenant or waiver of the benefit hereof or consent in a former instance), the Lessee may be considered in default
hereunder, and the Lessor lawfully may, immediately or at any time thereafter, and without demand or notice, enter
into and upon the said premises or any part thereof, in the name of the whole and repossess the same as of the
Lessor's former estate, and expel the Lessee and those claiming through or under it and remove its or their
effects (forcibly if necessary) without being deemed guilty to any manner of trespass, and without prejudice to any
remedies which might otherwise be used for arrears of rent or preceding breach of covenant. Upon such entry, this
Lease shall terminate, and the Lessee shall be liable to pay as rent, amounts equal to the several 'installments of
rents and other charges reserved as would have become due under this Lease if this Lease had not been
terminated or if the Lessor had not entered or reentered as aforesaid. Lessee shall not be entitled to any
refund, in whole or in part, of any rents paid to Lessor prior to said termination.
ARTICLE XIV —ATTORNEY'S FEE
The Lessee shall pay to the Lessor a reasonable attorney's fee in the event the Lessor employs an
attorney to collect any rents due hereunder and secures a judgment in connection with collection of said rent, or
legal process is levied upon the interest of the Lessee in this Lease or in said premises, or in the event Lessee
violates any of the terms, conditions or covenants on the part of the Lessee herein contained, provided that
Lessee fails to promptly correct the violation of any temp, condition or covenant after receipt of notice that it is
in violation thereof.
In the event Lessor employs its City Solicitor or an assistant solicitor to collect rents or otherwise
protect Lessor's interests under this Lease, "reasonable attorneys fees" under this Article shall mean the reasonable
cost of services provided by Lessor's Solicitor or assistant solicitor, at the rate charged for similar services by
private attorneys in the Bangor area.
ARTICLE XV — 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. In the
event of such consent, all provisions of this Lease shall extend to, bind and inure to the benefit of the Lessor and
Lessee, or its members, employees, agents, or servants, and also to Lessor's and Lessee's successors and assigns.
To the extent Lessee's written regulations or bylaws provide for payment of rents or fees for the right to
participate in any way in Lessee's operations, Lessor hereby consents; it being understood and agreed by the
parties hereto that such payments bind the payors as noted above.
ARTICLE XVI —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 for the purpose of authorizing the execution of
this Lease and that execution of this Lease by the City Manager renders this Lease 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 state, local and federal laws and regulations, and all necessary corporate action to authorize the
execution of this Lease by its undersigned corporate officer and that upon such execution this Lease is a valid
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and binding document on the part of the Lessee and is fully enforceable in all of its terms and conditions by
Lessor.
ARTICLE XVII —WAIVER
Failure on the part of the Lessor to complain of any action or nonaction 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 construed at any subsequent time as a waiver of
the same provisions. The approval of Lessor of 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 - NOTICES
Notices to the Lessor provided 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, ME 04401
and notices to Lessee are to be sent by registered or certified mail, return receipt requested, postage prepaid,
addressed to:
Bangor Farmers Market Association
c/o Molly Crouse
Nettie Fox Farm
2348 Kennebec Road
Newburgh, Maine 04444
or to such other respective addressees as the parties may designate to each other in writing from
time to time.
ARTICLE XIX —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 XX— CONSTRUCTION
The headings appearing in the Lease are intended for convenience and reference only and not to be
considered in construing this Lease.
ARTICLE XM — NO PARTNERSHIP OR JOINT VENTURE CREATED
Nothing contained herein shall be deemed or construed as creating the relationship of principal
and agent or of partnership or of joint venture between the parties, it being understood and agreed that
neither the method of computation of rent nor any other provision contained herein nor any acts of the parties
shall be deemed to create any relationship between the parties other than the relationship of landlord and tenant.
14 1,01
In exercising its rights hereunder, Lessee shall at all tunes be regarded as an independent entity
conducting its own business and operations and shall not at any time act, hold itself out, or purport to act,
as an agent, contractor, co-partner, joint venture, or employee of Lessor.
ARTICLE XXU —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 XXIII —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.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year
written above.
Witness: City of Bangor
I
-
Catherine M. Conlow
Its City Manager
Witness: Bangor Farmers' Market Association
LOU