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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 {���D�-A N� • m e CITY OF BANGOR 0 O�� 0' t (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 Page 1 of 9 14-118 MARCH 24, 2014 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 Page 2 of 9 14-118 MARCH 24, 2014 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. Page 3 of 9 14-118 MARCH 24, 2014 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 Page 4 of 9 14-118 MARCH 24, 2014 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. Page 5 of 9 14-118 MARCH 24, 2014 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. Page 6 of 9 14-118 MARCH 24, 2014 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, Page 7 of 9 14-118 MARCH 24, 2014 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 Page 8 of 9 14-118 MARCH 24, 2014 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 Page 9 of 9 AOL I