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HomeMy WebLinkAbout2014-05-12 14-164 ORDERCOUNCIL ACTION Item No. 14-164 Date: May 12, 2014 Item/Subject: ORDER, Authorizing Execution of Staging Agreement with Banres, LLC — Bass Park Responsible Department: Legal Commentary: This Order will authorize execution of a staging agreement with Banres, LLC for use of land where the future parking lot is to be constructed to stage construction equipment, materials and trailers in support of the hotel construction. The City of Bangor and Banres, LLC are parties to a Development Agreement for the construction of a hotel, restaurant and ancillary facilities on Bass Park Boulevard. They are also parties to a lease for 50 parking spaces on the adjacent Bass Park surface parking lot for employees, invites and guests. The parking spaces are to be constructed by Banres. Banres has requested permission to use the property as a staging area for its hotel construction. Manager's Comments: Associated Information: Budget Approval: Legal Approval: Introduced for Passage First Reading Referral Department Head Page _ of _ City Manager Finance Director Solicitor 14-164 MAY 129 2014 S it Assigned to Councilor Civiello CI`T'Y OF BANGOR (TITLE.) ORDER, Authorizing Execution of Staging Agreement with Banres, LLC — Bass Park WHEREAS, the City of Bangor and Banres, LLC are parties to a Development Agreement for the construction of a hotel, restaurant and ancillary facilities on Bass Park Boulevard; and WHEREAS, the City and Banres, LLC are parties to a lease for 50 parking spaces on the adjacent Bass Park surface parking lot for employees, invites and guests, said parking spaces to be constructed by Banres; and WHEREAS, Banres has requested to use the area upon which the parking spaces are to be constructed for use as a staging area for equipment and material for the construction of the hotel and for construction trailers. By the Oty Counts/ of the Oily of Bangor: ORDERED, That Catherine M. Conlow, City Manager, is hereby authorized on behalf of the City of Bangor to execute a license Agreement for Staging Area with Banres, LLC for use of that portion of Bass Park that is under lease to Banres for construction of a parking lot. Said Agreement shall be in substantially the same form as attached hereto and in a final form as approved by the City Solicitor. IN CITY COUNCIL May 12, 2014 a d CITY KERK 14-164 MAY 12, 2014 LICENSE AGREEMENT- STAGING AREA THIS LICENSE AGREEMENT by and between the CITY OF BANGOR, a municipal corporation organized and existing under the laws of the State of Maine (hereinafter "the City") and BANRES, LLC (hereafter "Banes"), having its principal place of business in Portsmouth, Rockingham County, New Hampshire, - ITNESSETH: WHEREAS, the City is the owner of a certain lot of land located on Bass Park Boulevard; Bangor, Maine, and WHEREAS, Banres and the City are parties to a Development Agreement for the construction by Banres of a hotel, restaurant, and ancillary facilities on Bass Park Boulevard in Bangor, Maine, and WHEREAS, Banres will be starting construction of the hotel and related facilities in the near future and may require staging area for lay down for equipment and materials on the adjacent land and parking area in the Bass Park complex, THEREFORE, the parties hereby agree as follows: 1. GRANT OF LICENSE - The City hereby grants Banres license to use the area to be used in the future as parking for 50 parking spaces and any adjacent area deemed suitable by the City (hereinafter the ""Premises") and more particularly described on Exhibit A attached, as well as any adjacent areas deemed suitable by and specifically designated by the City, for the following and for these purposes only: a. For a lay down and staging area for the equipment and materials used for the construction of the hotel, restaurant and ancillary facilities, and b. For construction office trailers. 2. TERM OF LICENSE — Construction of the facilities consistent with this License will be commenced no later than August 1, 2014 and this License shall commence as of June 1, 2014 and terminate as of October 1, 2015. 3. IMPROVEMENTS; RESTORATION OF PREMISES. Within the portion of the Premises designated as Exhibit A,' Banes shall finish the Parking Facility improvements detailed in a certain Lease Agreement with the City of substantially even date herewith. Any portions of the Premises outside the specific parking facility area described in Exhibit A shall be restored to their preexisting condition before this License as is reasonably possible. 4. HAZARDOUS WASTE - Banes hereby covenants and.agrees that it shall not, during the Term, permanently place, cause to be placed, deposit or discharge any hazardous waste upon the licensed Premises, or upon any other portion of the City's property, and further expressly agrees 14-164 MAY 12, 2014 that it shall indemnify the City from any and all costs, expense or liability, of whatever kind or nature, incurred by the City in detecting, evaluating, removing, treating, disposing of or otherwise responding to any hazardous waste placed or deposited in violation of this paragraph. Banres hereby covenants and agrees that it shall not, during the Term 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 the City from any and all costs, expense or liability, of whatever kind or nature, incurred by the City for any such violation of this paragraph. Such costs shall be deemed to include, without limitation, the City's costs 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 purposes 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. Banres' obligations under this Article shall be deemed to survive the expiration or termination of this Agreement. 5. INDEMNIFICATION - General Indemnification — Banres shall defend, indemnify, and hold the City, 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 the negligent acts or omissions of Banres' officers, agents, employees, contractors, subcontractors, servants, licensees, or invitees, unless such injury, death, or damage is caused by the negligence and/or intentional misconduct of the City and/or its agents or employees utilizing the Premises and/or portions thereof by license as herein provided. Banres shall give to the City reasonable notice of any such claims or actions. Banres shall also engage counsel reasonably acceptable to Lessor in carrying out its obligations under this section. Banres' Waiver of Workers' Compensation Immunity - Banres hereby expressly agrees that it will defend, indemnify and hold the City, its inhabitants, officers, employees and agents completely harmless from any and all claims made or asserted by the Banres' agents, servants or employees arising out of the Banres' activities under this License; provided however that Banres' aforesaid indemnity and hold harmless agreement shall not be applicable to any liability based upon the negligence and/or intentional misconduct of the City and/or others utilizing the Premises and/or portions thereof by licenses from the City herein provided. Banres agrees that it shall not assert, and hereby expressly waives, any and all immunity it may have under the Maine Workers Compensation Act in regard to claims made by the City for indemnification hereunder resulting from claims made or asserted by Banres' agents, servants or employees against the City. Subject to the limitations hereinabove set forth, the indemnification provided under this paragraph shall extend to and include any and all costs incurred by the City to answer, 2 14-164 MAY 12, 2014 investigate, defend and settle all such claims, including but not limited to the City'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 Banres' agents, servants or employees against the City in regard to claims made or asserted by such agents, servants, or employees. 6. INSURANCE The Lessee shall, during the entire term of this License, at its own expense, maintain insurance of the following type(s) with companies authorized to do business in the State of Maine: Comprehensive Public Liability Insurance - Bodily Injury or Death of not less than $1,000,000 each occurrence, whether for one person'or more than one person, and - Property Damage of not less than $1,000,000 each occurrence for all claims arising out of the Banres activities on the Licensed Premises. The City shall be provided with certificates of insurance evidencing such coverage, which shall name the City of Bangor as an additional insured. Banres shall furnish to the City evidence in the form of a certificate of insurance of the existence and continuance in force of the insurance required. The City shall be notified of any changes or discontinuance of coverage. 8. INSPECTION OF PREMISES - Banres hereby agrees that they shall thoroughly inspect the Premises for any hazards or defects prior to making use thereof under this License. It is understood that this License is granted for use of the Premises "as is", and that the City makes no warranty or representation of any kind regarding the safety or condition of the Premises. Use of the Premises by Banres shall be at Banres' sole and exclusive risk. 9. LICENSE FEE — The parties agree that Banres shall not pay to the City any sum for a license fee or any other consideration for the use of the licensed Premises. 10. ASSIGNMENT — Banres shall have the right to assign its interest in this Agreement and all rights and responsibilities hereunder to the general contractor engaged by Banres for construction of the hotel/restaurant. WITNESS the following signatures and seals this _ day of , 2014 CITY OF BANGOR By:_ Name: Title: 14-164 MAY 12, 2014 BANRES, LLC Name: Title 14-164 MAY 12, 2014 Exhibit A Parking Area A certain lot or parcel of land and the improvements thereon located on the extension of the southwest side of Bass Park Boulevard, formerly Dutton Street, in Bangor, County of Penobscot, State of Maine, said parcel being bounded and described as follows: BEGINNING at the north corner of land described in a deed from ERIN, Inc. to the City of Bangor dated December 12, 2002 and recorded in the Penobscot County Registry of Deeds, Book 8500, Page 93, said point being on the extension of the southwest side of Bass Park Boulevard, as shown on a plan entitled "Boundary and Topographic Survey of a Portion of Bass Park," prepared by Shyka, Sheppard & Garster Land Surveyors dated October 31, 2013; THENCE S39°30' 19"W along the northwest line of said City lot three and thirty hundredths (3.30) feet; THENCE S51 °32' 19"W along the northwest line of said City lot nine and ninety hundredths (9.90) feet; THENCE S38°29' 19"W along the northwest line of said City lot two hundred ninety-one and eighty-six hundredths (291.86) feet; THENCE N54'08'1 TV one hundred twenty-four and ninety-seven hundredths (124.97) feet to a point on the southeast line of a parking lease area as described in that certain lease between the City of Bangor to GLP Capital, L.P., a memorandum of which is dated February 11, 2014 recorded in Book 13467, Page 334; THENCE N35°28'24"E along said parking lease area two hundred ninety-eight and eighty-four hundredths (298.84) feet to a point on the extension of the southwest side of said Bass Park Boulevard; THENCE S56°21' 15"E along said extension of Bass Park Boulevard one hundred forty-three and thirty-six hundredths (143.36) feet to the POINT OF BEGINNING. Encompassing 0.921 acres, more or less. MEANING AND INTENDING to describe a portion of land described in a deedfromJohn M. Pierce to the City of Bangor dated June 18, 1999 and recorded in Penobscot County Registry of Deeds Book 7081, Page 314. This description was prepared by Shyka, Sheppard & Garster Land Surveyors based on a plan entitled "ALTA/ACSM Land Title Survey of a Portion of Bass Park," dated April 15, 2014, Project No. 13-120. Bearings reference Grid North, Maine East Zone as shown on said plan.