HomeMy WebLinkAbout2014-03-24 14-118 ORDERCOUNCIL ACTION
Item No. 14-118
Date: March 24, 2014
Item/Subject: ORDER, Authorizing Execution of Agreement with the City of Bangor School
Committee for the use of Building and Land at 208 Maine Avenue
Responsible Department: Legal
Commentary: This Order will authorize the City Manager to execute an Agreement with the
City of Bangor School Committee for use of property located at 208 Maine Avenue for the
purpose of providing a therapeutic day program for children with emotional or behavioral
disabilities. This program is primarily for students that have difficulty in a traditional school
setting and is currently provided as part of a joint effort with other school units at a facility in
Old Town. It is expected that other School Departments that currently participate in the
program in Old Town will participate in the program in Bangor.
The Agreement is for a term of 10 years and the School Department will be responsible for
running the program and maintaining the building the same as they are for their other
properties.
Manager's Comments:
Associated Information:
Budget Approval:
Legal Approval:
Introduced for
Passage
First Reading
Referral
Department Head
`M-ca'S6, " ,
City Manager
Page _ of _
Finance Director
icitor
14-118
MARCH 24, 2014
Assigned to Councilor Baldacci
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(TITLE.) ORDER, Authorizing Execution of Agreement with the City of Bangor School
Committee for the use of Building and Land at 208 Maine Avenue
WHEREAS, the City of Bangor School Department provides a therapeutic day program for
children who have emotional or behavioral disabilities which impact their ability to be educated
in a traditional school environment; and
WHEREAS, currently said services for Bangor students are provided as part of a joint effort with
other school units at a facility in Old Town; and
WHEREAS, it is in the best interest of the City of Bangor and the School department to consider
alternatives to its current arrangement for the education of children who are in need of a
therapeutic day program; and
WHEREAS, the City of Bangor is the owner of the building and land located at 208 Maine
Avenue, Bangor, Maine; and
WHEREAS, the building and land at 208 Maine Avenue is suitable for the School Department's
program for children who are in need of a therapeutic day program; and
WHEREAS, It is in the best interest of the City of Bangor and the Bangor School Department for
the property located at 208 Maine Avenue to be used for its therapeutic day program and to
provide that other school department may continue their joint effort with the City of Bangor for
the education of their students in need of such a program at this location.
By the Oily Counts/ of the Oty ofBanyoi:
ORDERED,
THAT Catherine M. Conlow, City Manager, is are hereby authorized on behalf of the City of
Bangor, to execute and Agreement with the City of Bangor School Committee for use of the
building and land located at 208 Maine Avenue. Said Agreement shall be substantially the same
form as attached hereto and in a final form as approved by the City Solicitor.
IN.CITY COUNCIL
March 24, 2014
Spdaed
CITY CLERK �� ��
14-118
MARCH 24, 2014
AGREEMENT
THIS AGREEMENT, executed this day of , 2014, by and
between:
CITY OF BANGOR, a Maine municipal corporation with
offices at 73 Harlow Street, Bangor, Maine;
AND
BANGOR SCHOOL DEPARTMENT, a Department of the
City of Bangor with a mailing address of 73 Harlow Street,
Maine
RECITALS:
The City of Bangor or is the owner of land and a building located at 208 Maine
Avenue, Bangor, Maine; and the Bangor School Department wishes to use the land and
building for the operation of a special education and related services day treatment
facility.
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I - PREMISES
A. The City of Bangor, for and in consideration of the obligations to be
performed by the Bangor School Department, agrees that the Bangor School
Department, upon and subject to the terms and conditions of this Agreement, may use
the following described premises in its present physical condition:
Land, building and improvements located at 208 Maine Avenue, Bangor,
Maine, further described in Exhibit "A" to this Agreement (the "Premises")
B. That portion of the premises that consists of an existing parking lot may
be amended at the sole discretion of the City of Bangor to remove the existing
parking lot from the premises, provided that the City of Bangor shall make
available additional land to the premises in order for the Bangor School
Department to construct, at its expense, a parking lot.
ARTICLE II - TERM
A. The initial term of this Agreement shall be 10 years commencing on the
earlier of August 1, 2014 or Bangor School Department's opening for special education
services in the Premises (the "Commencement Date") and terminating on July 31, 2024.
The Bangor School Department can occupy the Premises as of March 25, 2014 for the
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purpose of preparing the property for the use provided in this Agreement. Any
occupancy shall be subject to all terms of this Agreement
B. This Agreement shall be contingent upon the Bangor School Department's
final approval of an inter -local agreement for the provision of special education services,
to be known as the Southern Penobscot Regional Program for Children with
Exceptional ities or any comparable inter -local agreement, and an affirmative vote to
accept assignment of this Agreement by the Board of Directors created by the inter-
local agreement.
C. Not less than 180 days of the end of the term of this Agreement the
Bangor School Department shall notify the City of Bangor if it wishes to continue to use
the premises for the operation of a special education and related services day treatment
facility. In such event, the parties shall discuss the terms and conditions of an
Agreement for the continued use of the premises, though neither party is obligated to
enter into another Agreement.
ARTICLE III - ANNUAL RENTAL
The rent to be paid by the Bangor School Department to the City of Bangor
during the term shall be $0.00 (zero dollars) annually.
ARTICLE IV - USE, OCCUPANCY AND ALTERATIONS TO PREMISES
A. The Bangor School Department shall use, occupy and maintain the
premises in a reasonably businesslike, careful, clean, and reasonably safe manner for
the purposes of a special education center, including without limitation, the operation of
an Inter -Local Agreement with other school administrative units.
B. The Bangor School Department shall use, occupy or maintain the
Premises in compliance with all Legal Requirements.
C. The Bangor School Department shall have the right to make alterations
and improvements to the Premises as it may choose, subject to the prior written
approval of the City Manager or his/her designee, as described below, and provided
that such alterations, additions and improvements do not weaken the structural integrity
or require major changes to the mechanical systems of the Building, and further
provided that any such work shall be done entirely at the Bangor School Department's
own expense. It shall be the responsibility of the Bangor School Department and any
assignee under Article XVI to pay for any alterations and improvement to the Premises.
Any alterations or improvements shall be considered to be part of the Premises and
shall become the property of City of Bangor.
D. Within thirty (30) days following submission of the Bangor School
Department's plans and specifications for proposed alterations and improvements, the
City of Bangor shall notify the Bangor School Department whether the City of Bangor
agrees or disagrees that the plans and specifications comply with applicable Legal
Requirements, or whether the City of Bangor approves or disapproves of the portions of
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the plans and specifications covering structural or mechanical changes to the
Agreement Premises.
E. The Bangor School Department shall have the right to erect signs on the
Premises, provided that such signs comply with the City's Sign Ordinance.
F. The City of Bangor, through its agents, shall have at all reasonable times
the right, upon reasonable notification to the Bangor School Department, to go on and
inspect the Premises with an authorized representative of the Bangor School
Department, including the right of access to utility systems located on the Premises for
the purpose of inspection. For purposes of this paragraph, "reasonable notification"
shall include any actual notification to the Bangor School Department not less than 5
business days prior to the date of inspection. "Reasonable times" shall mean any time
during Bangor School Department's regular business hours.
ARTICLE V - HAZARDOUS WASTE
A. Except in compliance with Legal Requirements, the Bangor School
Department shall not permanently place, cause to be placed, deposit or discharge any
hazardous waste upon the Premises.
B. The Bangor School Department shall not, during the term, violate any
Laws or Regulations pertaining to hazardous waste or hazardous material.
C. For the purposes of this paragraph, the term "hazardous waste" shall be
deemed to include every substance now or hereafter designated as a hazardous waste
under Legal Requirements.
ARTICLE VI - LIABILITY AND PROPERTY DAMAGE INSURANCE
A. The City of Bangor during the Term shall maintain the same insurance
coverage that it currently has on other buildings under the control and operation of the
Bangor School Department.
ARTICLE VII - DAMAGE BY FIRE OR OTHER CASUALTY; EMINENT DOMAIN
A. If the Premises are damaged by fire, explosion or any other casualty to an
extent which materially affects the Bangor School Department's operation of the
Premises the Bangor School Department may, at its sole expense repair the damage.
C. This Agreement shall terminate on the date on which a condemning
authority shall have the right of possession of the Premises pursuant to the taking of, or
damage to, property as a result of the exercise of a power of eminent domain or
purchase under threat of the exercise.
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ARTICLE VIII - NONDISCRIMINATION
The Bangor School Department agrees that: (1) no person or group of persons
on the grounds of race, color, age, sex, handicap, or national origin, or in any other
manner prohibited by law, shall be excluded from participation in, denied the benefits of,
or be otherwise subjected to discrimination in the Bangor School Department's use or
occupancy of said Premises; and (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 on the grounds of race, color, age, sex, handicap, or
national origin or in any other manner prohibited by law, shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to unlawful
discrimination in the Bangor School Department's use or occupancy of the Premises. In
the event of breach of any of the above nondiscrimination covenants, the City of Bangor
shall have the right, after failure of the Bangor School Department to rectify such breach
within 30 days after receipt of notice from the City of Bangor, to terminate this
Agreement. Provided, however, that the City of Bangor shall not have the right to
terminate the Agreement 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 IX - COVENANT OF QUIET ENJOYMENT
The Bangor School Department, subject to the terms and provisions of this
Agreement on payment of the rent, and observing, keeping and performing all the terms
and provisions of this Agreement on its part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises during the
Term without hindrance or rejection.
ARTICLE X - LIENS
The City of Bangor and the Bangor School Department agree that each will
promptly discharge, either by payment or by filing of the necessary bond or otherwise,
any mechanics', materialmen's or other liens against the Premises, or against any
buildings, structures or improvements located 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 City of Bangor or the Bangor School Department, respectively.
ARTICLE XI - MAINTENANCE AND REPAIRS
A. The Bangor School Department shall, at its sole expense and cost,
throughout the Term or any extension, keep and maintain the following in the Premises:
all fixtures, including electrical, plumbing and heating, doors, windows, floor and floor
coverings, ceilings, interior walls, and interior and exterior paint surfaces in good order
and repair, the Building's major structural components: roof, structural walls, foundation,
operating systems, including heating, plumbing, electrical systems, and oil tank, in good
order and repair, and in tenantable condition, damage by accidental fire and casualty
and reasonable wear and tear, as defined in this Article, excepted. The Bangor School
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Department will also be responsible for cleaning of the Premises, snowplowing, ordinary
parking lot maintenance, grounds landscaping, and rubbish removal.
B. The phrase "reasonable wear and tear' as used in Paragraphs A and B of
this Article as an exception to the obligations of the parties shall not be construed to
relieve the parties of their responsibility for providing repairs of a routine and regular
nature which may from time to time be necessary within their respective areas of
responsibility, nor of the obligation to provide maintenance to the Premises of a nature
and degree ordinarily sufficient to prevent damage, breakdown, failures, malfunctions or
disrepair.
ARTICLE XII - UTILITIES
The Bangor School Department shall pay the cost of all utilities furnished and
consumed on the Premises, including electricity, gas, fuel oil, water, sewer user fees,
and storm water utility fees. The Bangor School Department accepts all utility fixtures
as they now exist.
ARTICLE XIII - REMOVAL OF PROPERTY
A. Ownership of permanent improvements to the Premises, which may from
time to time be made by the Bangor School Department that are affixed to the property
and are an integral part of the operating systems of the structure, as opposed to
movable personal property, shall automatically vest in the City of Bangor as a
consideration of the Agreement and rental schedule.
B. Any movable personal property, including, without limitation, furniture,
trade fixtures, switch boxes, routers and computer racks, except that property owned by
the City, that may be located, erected or installed on the Premises by the Bangor
School Department from time to time during the Term shall remain the property of the
Bangor School Department, and, upon termination or expiration of this Agreement, The
Bangor School Department shall have the right to remove the same from the Premises
within 30 days of said termination. Any such property not so removed within 30 days
from the date of termination, shall become the property of the City of Bangor to be
disposed of in such way as the City of Bangor may deem fit. In the event the Bangor
School Department elects to remove said non -permanent improvements and other
personal property, the Premises shall be returned as nearly as possible to their original
condition existing at the commencement of this Agreement, damage by accidental fire
and casualty and reasonable wear and tear excepted.
ARTICLE XIV - SURRENDER OF POSSESSION
Subject to the provisions contained in Article XV, the Bangor School Department
shall, upon the termination of this Agreement, surrender the quiet and peaceable
possession of the Premises.
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ARTICLE XV - DEFAULT AND REMEDIES
A. It is covenanted and agreed that:
1. If the Bangor School Department shall neglect or fail to pay charges
payable under this Agreement and such default shall continue for a period of 10 days
after written notice by The City of Bangor; or
2. If The Bangor School Department 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 30
days after written notice by The City of Bangor, or if such covenants, terms, provisions
or conditions cannot be performed or observed within said 30 day period, if the Bangor
School Department fails to diligently prosecute the curing of such neglect or failure.
3. If the Bangor School Department ceases the use of the Premises the
purposes of a special education center, including without limitation, the operation of an
Inter -Local Agreement with other school administrative units
THEN, IN ANY OF SAID CASES OUTLINED ABOVE (notwithstanding any
license of any former breach of covenant or waiver or consent in a former instance), the
Bangor School Department may be considered in default, and the City of Bangor
lawfully may, immediately or at any time thereafter, and without demand or notice, enter
into and upon the Premises, and repossess the same as of the City of Bangor's former
estate, and expel the Bangor School Department and those claiming through or under it
and remove its or their effects (forcibly if necessary) without being deemed guilty of any
manner of trespass.
ARTICLE XVI - ASSIGNMENT, SALE AND SUBLETTING
The Bangor School Department shall not at any time assign, sell, convey or
transfer this Agreement or any interest in this Agreement, or subagreement or sublet or
rent the Premises, or any part. Provided that, however, if The Bangor School
Department finalizes an Inter -local Agreement with other school administrative units or
regional school units for the provision of special education services at the Agreement
Premises, to be known as the Southern Penobscot Regional Program for Children with
Exceptional ities (the "Program") or any other comparable inter -local agreement, the City
of Bangor consents to assignment of this Agreement for the purpose of meeting the
terms of any such Inter -local Agreement.
ARTICLE XVII - AUTHORITY TO ENTER INTO AGREEMENT
The City of Bangor hereby represents and warrants that it has taken all
necessary procedural and legal steps as required by federal, state and local legal
requirements for the purpose of authorizing the execution of this Agreement and that
execution of this Agreement by the City of Bangor City Manager renders this Agreement
a valid and binding document on the part of the City of Bangor and that the same is fully
enforceable in all of its terms and conditions by the Bangor School Department.
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The Bangor School Department hereby represents and warrants that it has taken
all necessary procedural and legal steps as required under all state, local and federal
legal requirements, and all necessary action to authorize the execution of this
Agreement by its undersigned Superintendent, and that upon such execution this
Agreement is a valid and binding document on the part of the Bangor School
Department and is fully enforceable in all of its terms and conditions by the City of
Bangor.
ARTICLE XVIII- WAIVER
Failure on the part of either party to complain of any action or nonaction on the
part of the other party, no matter how long the same may continue, shall not be deemed
to be a waiver by the complaining party of any of the complaining party's rights.
Further, it is covenanted and agreed that no waiver at any time of any of the provisions
of this Agreement by either party, shall be construed as a waiver of any other provisions
of this Agreement, and that a waiver at any time of any of the provisions of this
Agreement shall not be construed at any subsequent time as a waiver of the same
provisions. The approval by one party of any action by the other party requiring the
approving party's consent or approval shall not be deemed to waive or render
unnecessary the approving party's consent or approval of any subsequent similar act by
the other party. Any waiver by a party must be in writing and signed by the party to be
charged.
ARTICLE XIX - NOTICES
Notices to The City of Bangor are to be delivered by hand or certified mail, return
receipt requested, postage prepaid, addressed to:
City Manager
City of Bangor
City Hall
73 Harlow Street
Bangor, Maine 04401
with a copy to City Solicitor, 73 Harlow St., Bangor, Maine 04401.
Notices to The Bangor School Department are to be delivered by hand or
certified mail, return receipt requested, postage prepaid, addressed to:
Superintendent of Schools
Bangor School Department
City Hall
73 Harlow Street
Bangor, Maine 04401
with a copy to Brann & Isaacson, 184 Main Street, P.O. Box 3070, Lewiston, Maine
04243-3070,
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or to such other respective addresses as the parties may designate to each other in
writing from time to time. Notice shall be effective on the date of receipt or refusal.
ARTICLE XX - INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Agreement or the application of a term or provision
to any person or circumstances is determined to be to any extent invalid or
unenforceable, the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those to which it is held invalid or
unenforceable shall not be affected and the remaining terms and provisions of this
Agreement shall be valid and be enforceable to the fullest extent permitted by law.
ARTICLE XXI - CONSTRUCTION
The headings appearing in the Agreement are intended for convenience and
reference only, and not to be considered in construing this Agreement.
ARTICLE XXII - GOVERNING LAW
This Agreement shall be governed by Maine law.
ARTICLE XXIII - MEMORANDUM OF AGREEMENT
The parties agree not to record this Agreement.
ARTICLE XXIV - AMENDMENT TO AGREEMENT
This Agreement contains all the terms and conditions between the parties and no
alteration, amendment or addition shall be valid unless in writing and signed by both
parties.
ARTICLE XXV - MISCELLANEOUS
A. A provision of this Agreement which requires a party to perform an action
shall be construed so as to require the party to perform the action or to cause the action to
be performed. A provision of this Agreement which prohibits a party from performing an
action shall be construed so as to prohibit the party from performing the action or
permitting others to perform the action.
B. The singular includes the plural, and the plural includes the singular.
C. Unless expressly provided in this Agreement, no consent or approval shall
be unreasonably delayed, withheld or conditioned.
D. This Agreement may be executed in counterparts, and each counterpart
shall constitute an original document. The execution date of this Agreement shall be the
date of execution by both parties if they have each executed this Agreement on the same
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date; otherwise, the execution date shall be the date of execution by the party last
executing this Agreement.
IN WITNESS WHEREOF, the parties have set their hands and seals the day and
year written above.
Witness:
CITY OF BANGOR
By: Catherine M. Conlow
Its: City Manager
Witness: BANGOR SCHOOL DEPARTMENT
By: Betsy M. Webb, Ed.D.
Its: Superintendent
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