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Home My WebLink About2011-05-09 11-158 ORDERitem loo. 6 IZE158 Date: May 9 2011 Item/subject: Order, Authorizing the City Manager to Execute an Agreement with Steven Pagels, d/b/a Bangor Harbor Cruises for Dock Space Rental for the 2011 Boating Season. Responsible Department: Legal If approved, this order would approve an agreement with Steven Pagels, owner and operator of Bangor Harbor Cruises, to lease dock space from the Cityto operate a cruise boat on the Bangor waterfront. Under the terms of the agreement Mr. Pagels will pay the City $700 for use of the dock during the 2011 boating season. The infrastructure Committee reviewed this item on May 3, 2011 and unanimously approved it for full council consideration partment Head Managees Comments: —A �fai7 ir, City Mn g City Manager Associated Irrfomwtion: Order Budget Approval: France Director Legal APPmval: Solicitor _ Passage _ First Reading Page _ of _ Referral _... ]C Sly Assigned to Councilor _ Groomick Ray 9, 2011 CITY OF BANGOR (KYLE.) Order, Authorizing the City Manager to Execute an Agreement with Steven Pagers, d/b/a Bangor Harbor Cruises for Dock Space Rental for the 2011 Boating Season WHEREAS, Steven Pagels, owner and operator of Bangor Harbor Cruises has leased dock space from the City of Bangor to operate a cruise boat; and WHEREAS, Son en Pagels wishes to lease dock space from the CRY of Bangor for the 2011 boating season to again operate a cruise boat dythe on, Co /of me OryMbangs: ORDERED, THAT, the City Manager is hereby authorized, on behalf of the City of Bangor, W execute an Agreement with Steven Pagels to lease dock space at the Bangor Watedront. Said Agreement shall be substantially in the same form as attached hereto and In a final form as approvetl by the City Solicitor or Assistant City Solicitor. n cin m®cn May S. 2011 MotionMed Motion e �nd,.S,econded for Passage YaJi Y I1-158 CIRf CLg� � IIt) huthorfziaz the City Nanaeer to Rteen[e an Agreoest with Steven Yegelo. d/F�y ... lwa a.. 158 AGREEMENT This Agreement, dared this day of 2011, is by and between Steve Pagels, d/b/a BANGOR HARBOR CRUISES, with a place of business at Cherryfield, County of Washington and State of Maine (hereioattes known as the "OPERATOR") and the City ofBargor, Mahe (hereinafter known as the "CITY"). WHEREAS, the CITY has determined that cruse boat service on the Penobscot River is inthe interests of its citizens and the general public; and WHEREAS, the OPERATOR bas proposed to operate a passenger vessel, with a licensed Coast Guard capacity of approximately 49 passengers, from the C1TY's float docks: NOW, THEREFORE, the OPERATOR and the CITY, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTTCLE I PREMISES The CITY agrees as fwnisb, imbl), maintain and remove annually a floating dock system with gangway on the Penobscot River at Bangor Waterfmna, located on Front Street in Bangor. The OPERATOR shag utilize float dock #2 oralternma dock designated by the CITY. The CITYagces reformat OPERATORto lease spaceonfloet docks at the Bangor Waterfront forthe eapressputpose ofoperatingacruise boat during the period ofJone 1, 2011 through Orsober21,2011. Duringsaid Periods, OPERATOR shall provide scheduled public cruises m a schedule as will be submittedto and approved by the CITY. Said Schedule shall include, ata minimum, tvo (2) cruises per weekend, a weekend being defined as Friday through Sunday. In the event that the OPERATOR'S cruise... _..... _........ schodneisnotwoeptabletothe CITY, the CITY shaRhave therightto rescind this Agreement The CITY'S approval shall not be unreasonably withheld. This raluirement for CITY approval of the OPERATOR's public cruise schedule is to ensure the availability of consistent scheduled cruises available to the Public in exchange for OPERATOR use of CITY docking facilities possession to this agement Said cruises shall depart from and return m said Boat docks. OPERATOR may make changes w the schedule required herein, provided OPERATOR shall fust submit notice of such changestothe CITY. Noticeofsuchchavges must be submittedto the CITYHarbtr Masterby 5:00 A.M. ofthe day ofthe scheduleddate ofthe cruise. It is expressly understood by the parties hereto that the OPERATOR'S use of Boat docks shall not interfere with public banters use of the wastewater pant, out facility. 258 It is also expressly understand by the parties hereto that the OPERATOR will be able to operate from CITY float docks during the Annual American Folk Festival in August, provided that spaceisavailable. The CfrYwalmakereasonableeMttoprovidesp wce OPERATORduring the American Folk Festival. The CITY shall notifythe OPERATORofspaceavailabilitychangthe American Folk Festival no later than August 1. ARTICLE II TERM Initial term fm this Agreement shat be one year for the 2011 season the OPERATOR ARTICLE III REE In consideration for the use of the facilities as described above and for the rights father described in thus Agrsment the OPERATOR agrees to pay the CITY an annual fee m accordance with the following schedde; PAYMENT DUE PAYMENT DUE TOTAL ON OR BEFORE ON OR BEFORE YEAR ANNUAL FEE .RUNE 15T. 2011 AUGUST 15'" 2011 2011 $700.00 $350.00 $350.00 (June 1, 2011 to October 21, 2011) Paymea nffee shill be W Ura CITY incare ofCityEnginser, 73 Halow Sheet Bangor, ME 04401. ARHOX IV USE AND OCCUPANCY OPERATOR shall use and occupy said float docks fa the purpose of docking as cruise boat, and for the loading and unloading of passengers and supplies thereof, and for no other purpose whosoever without the prior express written consan of the CITY. OPERATOR shall be responsible for the provision and payment for all electrical service used by the OPERATOR OPERATOR shall install, at its sole expense, all equipman necessary to sepantelY meta its electrical service. Tlw CITY shall consent to such no essary installation of equipment 2 158 OPERATOR shall be allowed to use the CITY's wasmauter pump out facility. The fce for such use shaft be included in the RENT provided for in ARTICLE Ill above. OPERATOR shall not use or occupy said docks in my mmner that violates any, law or regulation of any duly commuted governmental mMorily. The paries hereto agree Chet if during the term of this Agreement said float docks shall be destroyed or so damaged by fire, earthquake, flood, or other casualty, or if said flint docks shall fall into such a state ofdiuepair due m wear and decay or for any other memo or cause so as to make it impraztical mr unsafe for OPERATOR and its passengers to use said float docks as contemplated herrn, the CITY shall be under to obligation m rebuild or restore said float docks to its prior condition- If such an event should occur, the City will aRetrr" provide other suitable dock space owaedbythe CLTY,bwismdermobligmionmdosu. Theparties hereto agreethat, ifsuchmevert should occur, the CITY shall not be liable for my loss, including lost revenues, suffered by OPERATOR. OPERATOR shall be responsible, afa each cruise, forthe gmcmal clam -up ofmf m m the area of operation that can be directly attributable to the mdse boat operation and shall elm be responsible for my damages to CITY properly that can be directly attributable to the cruise bad operation. The OPERATOR shall provide fce its own fresh marvel. ARTICLE V IMM41 V The CITY shall permit customers of OPERATOR to on the Dungan Waterfront parking lot andadjscentstreetsreasonmequalbasiswiththege public. Itisexpresslyunderstoodthatall parking shall be on a public basis, and no CITY parking areas shaft be specifically reserved for _.... OPERATORuse. ARTICLE VI INSURANCE The OPERATOR shag keep in force comprehensive public liability hom mace, including that for wrongful death and property damage, in the amount of a least $1,000,000.00. Prior on the commencement of each period that this Agreement shall remain in effect, the OPERATOR shall file with the CITY a Certificate of lasurence showing this comprehensive insurance coverage and naming the CITY m an additional barred. All insurmce shall be carried by responsible companies satisfactory to the CITY. Such insutumce shall include a clause providing for property damage coverage of the CIT Y's float docks for my dmmges to the said float docks caused by or arising out of OPERATOR's cruise boat operations and shall designate the CITY as "loss payee" for all claims 1 11 15S arising out of any such damage to CITY owned property. Further, such insurance shall cover all liability relamd in any mender to OPERATOR'S cruise boat operations, including passenger Navel to and from bases, cars or other vehicles in the vicinity of the Bangor Watecluom parking lot and adjacent Public ways. ARTICLE VII INDEMMFICATION The OPERATOR Shull indemnify and hold the CRY, its inhabi suds, employees and agents, f)mvu hamdess Gore nal against all liability, loss or expense imposed upon the CRY, its inhabitants, employees, and egwtl, by reason of legal liability for injuries to pesons and damages to propertycausedby r a gligent acts or omissioan or other misconduct by OPERATOR, its employees or invitees in or about said Float docks, pursuant to the operation of the arise boa, or concerning activities in the Bangor Waterfront parking lot or adjacent public ways relined in any madder to OPERATOR'S operations. OPERATOR hereby expressly agrees that it will defend, indemnify and hold the CfF harmless from any and all claims made or asserted by OPERATOR'S Sports, servants or employees arisiugoutofOPERATOR'sactivitlesundathis Agre=em. Frimmiscraparee,OPEIIATOglareby mWINSIV olives Bar end all' dY it MW have order Mouggs Wodkers Compensation Ad an warned to such claims made or assened by OPERATOR' uem, serrams or amploorces The indemnificationprovided underthispamgmph shall extendto and Include anyand all costsincurred by the CITYto answer, investigare,defendand settleall such claims, including indoor limitedto the CITY's costs forattormys fees, expe mdothuwi sfees,thecostofmvesrige MsurpaymeN in fail ofany and alljudgmea srendered infavorofOPERATOR'sagenrs, uncanrsoremploycesagainst the CITY in regard 1n claims made or assured by such agents, servants or employees. ARTICLE WI CITYNOTLiAEIdi In gumming the rights end pirwalegen; contained in this Agreement, the CITY does not assume any responsibility for any loss or damage to the cruise boat or other property of the OPERATOR, its owners, guests, ivvirea or emPloyas. Further, the CIT assuamsno liabihtymguests, inviteesor employees for personal injury or death related to OPERATORS operations. ARTICLE IX CBANGE W USE It is expressly understood that no change in use or any additional was ofsaid Boat docks shall be made by the OPERATOR without obtaining prior written approval of the CITY, and my approval 158 may be contingent upon the remgotiation of the reveal provided in ARTICLE III above, in the CITY's sole discretion. ARTICLE X Ii:IfIZ��P]il The CITY, through its City Manager, City Engineer or Harbor Master, may in its sole discretion, upon nonce to the OPERATOR, require that OPERATOR's cruise bog be moved from CITY flaw docks, or from my other CITY dock, when, in the judgement of the CITY, weather or water conditions threaten the safety arms OPERATORs wise boat, the CITY float docks, or public safety. In the event of such an order by the CITY, OPERATOR shall move its cruise boat to a desigreted mooring until allowed by the CITY to tenon to the CITY docks. The OPERATOR shall provide a suitable mooting for relooation, subject to Harbor Master's approval. The parties hereto agree that, in said room the CITY shall not be lights for anyloss, including low revenues, suffered by OPERATOR. ARTICLE XI The parries acknowledge that the CITY may aver into a separate Agreement with American Cruise Lines to use the City docks as its base ofoperationa for its vessels. It is expressly understood by the parties hereto that OPERATOR' Ruse of CITY float docks shall be conducted such that it will not interfere with American Cruise Lines operations Nothing shall preclude at any time the use of other premises owned by the CITY by others withthe CITY's permission for alternate cruise boat service, provided the, however, the CITY shall not permit an alternate wise bow service to use the CITY's docks as its base of operations ARTICLE XII OPERATOR may pow advertising at the heed of flow docks in a foam acceptable to the CITY. OPERATOR shelf be fully responsible for respomlivg to public requests for cruse information and for all ticket sales. The OPERATOR may set up a temporary table for ticket sales at Eaagor Waterfront at a location acceptable to the CITY. ARTICLE XIII DEFAULT. TERMDiATION 158 If the OPERATOR fails W provide cruise boat service in accordance with the schedule referenced in ARTICLE I during the tern of this Agreernmt period, or i9rls W pay the rental in accordance with ARTICLE HL or fails to comply with all applicable stnmWs, ordinances, rules and regulations, or shall otherwise be in default of my pmt of this Agreement, then the CITY, in its sole discretion, any tervtinate dria Agreement upon ten (10) days written notice to the OPERATOR 6\91I fY 11*..4 NOTICES All notices provided under this Agreement shall be in writing and shall be sent by registered mail, return receipt requested, and addressed as follows: To the CITY: City Engineer Bangor City Hall 73 Harlow Street Bangor, Maine 04401 To the OPERATOR: Bangor Harbor Cruises P.O. Box 28 Cherryfield, Maine 04622 ARTICLE XV ...TRANSFER __.. _.. This Agrecar at and the rights and duties hereunder may not be assigned, sublet. delegated, or otherwise transferred by the OPERATOR in whole or in pmt, Wavy road patty without prior written consent of the CITY, and my attempted transfer without such prior written consent shall he void. ARTICLE ]CV][ MTEGRATION This Agreement mrwitures the Wb1 Agreement between the paries for cruise boat services operating out of the port of Bangor. 0 ARTICLE XVH NO JOINT VENTURE 158 Nothing herein shall be construed as creating aj oint venture, agency relationship or any other business MMioaship between OPERATOR end CITY. OPERATOR shallot ell times he considered anindependentcontactorforpapoeesoftlus Agreement. ARTICLE XVI CHOICE OF LAW The laws of the State of Maine shall govern interpretation of the provisions of this Agreement. IN W [TNESS WHEREOF, the parties hereto have set their hands and seals the day said year fust above written. CITY OF BANGOR Cathy M. Canlaw City Manager BANGOR HARBOR CRUISES _. Captain Steven F. Pagels