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HomeMy WebLinkAbout2008-03-24 08-125 ORDERItem ft. 08 i25 Date: March 24, 2008 Item/Subject: ORDER, Authorizing the City Manager to Exearte an Agreement and Consent of Landlord — Cori R Us — 240 Odlin Road Responsible DeparM1r:enC Legal The City, of Bangor leases land to Dorl¢ R Us (the Ground Round) primarily for part of its parking lot Dorks R Us Is selling the business and assigning the lease to BangorGround Round —Colin Road. The Lease between the City of Banger and Dorks R Us requires the City's consent before any assignment, which consent cannot be unreasonably withheld. This Order will authorize the City Manager to execute an Agreement and Consent of Landlord. The Business and Ecorromic Development Committee has reviewed and recommends approval. Department Head /�/iLtt�C/�..� City Manager Assaciatetl Information: Prance Director Legal Approval: ty ty lichor Introduced for _tt_ Passage _ First Reading Referral MAR 2 A 2008 08 125 AssipMw CouncilorW er CITY OF BANGOR (MLE.) ORDER, Authorizing tlx: City Manager to Execute an Agreement and Consent of Landlord — Darks R Us— 290 Odiin Road BY Me Off, Co / of tos Ofy ovawgoo ORDERED, That the Cty Manager. Edward A. Barnett, is hereby authorized, on behalf of the City of Bangor, to execute an Agreement and Consent of Landlord, consenting to an assignment of Lease from Darks R Us to Bangor Ground Road —Win Road, LLC. Said agreement shall be substantially in Ne form as attached hereto and in a final form as approved by the City Solicitor or Assistant City Solicitor. IN CITY COUNCIL Nar 26, 2008 1 p 08-125 Us d • �.y ORDER CITY CLARK (I H/� (nTLE) Authorizing the City Managelr to Execute an Agreement and ConsenIt of Landlord - Dorks R Us - 260 041in Road L, Assigned lto Councllot �7tieC �fi>/ Y I � I 08 125 AGREEMENT AND CONSENT OF LANDLORD (Concerning Assignment of Lease And New Tenant's Graining of Leasehold Mortgage) The CITY OF BANGOR, a municipal body, both corporate and politic, having a pnncipat office in Bangor, Maine and a mailing address of 73 Harlow Street, Bangor, Maine 04401 ('the landlord) is the landlord under a lease ("the original lease") of a Parcel of land abused at or near Odiin Road in the Bangor, Maida and more particularly described in SCHEDULE A attached hello, Cite leased property") now whin DORKS R US, a Maine general partnership with an office in Freeport, Cumberland County, Maine with a mailing address of P.O. Box 821, YartroNh, ME 04098 ('the current tanarM'). The original lease was dated November 15, 1982, and the original tenants wale Sheldon Hartstone antl Barry Hartstone as trustees ('the Hartstone trustees'). A memorandum of the original lease is recorded In Penobscot County Registry of Deeds in Book 3343, Page 344. The landlord leer entered into a sublease dead November 14, 1982 (Yhe sublease-) where the Hartstone trustees and Entertainment, Ix. a Maine corporation were the tenants air sub-lascees. The tenants rights in the sublease was assigned to the current tenant by assignment dated April 24, 1888, recorded in Penobscot Registry of Deeds, Volume 4210, Page 238 which assignment was consented to by Me landlord in an agreement dated April 29, 1988, recorded in Penobscot Registry of Deeds, Volume 4218, Page 209. An October 18, 2002 Amendment to Lease Agreement was entered into halween the landlord and the current tenant to Pemh Me tenant to construct a freezer to senre the restaurant refereed to below (hereinafter Warred to as IN 2002 lease amendment'). A copy of the 2002 mum amendment is attached. References to'Ihe leased property' below shall also include the property that is the subject of the 2002 lease amendment. The leased property is used primanly as a parking lot serving a restaurant known as "Me Ground Rountl' located on adjoining land owned by the wnent tenant ('the abutting property°). I'm tenant proposes to (1) sell Me restaurant to Bangor Ground Round - Odlin Road, LLC, a Maine Limited Liability Comp ny with an office in Bangor, Maine (the new tenon"), and (2) assign the original lease and the 2002 lease amendment to the new tenant This agreement and consent shall be effective when a dead from the anent tenant to the new tenant conveying the abutting property Is recorded in the Penabscut Registry 0, Deeds. For goad and adequate consideration, the landlord hereby consents to (a) the assignment of all the cumin tenant's rights in and to the In" to the new tenant, and (b) the new tenant's graining of a leasehold mortgage Dame new tenant's leasehold merest Nthe new leasehold mortgage-) to KeySank National Association, an amity with a place of business in Bangor, Maine ('Me bank-) all the granting of a security interest in leasehold improvements and mdures as sawnty forme new tenant's obligations, including those arising pursuant to a March 14, 2008 loan commitment. The landlord hereby acknowledges that all improvements now on the leasetl property and any leasehold improvements installed or constructed by Me new tenant remain the sole property of new tenant and may be removed by the newtenant or its assignee in accordance with the leans of sold Lease. 08 125 The landlord agrees that so long as rrew leasehold mortgage remains outstanding, the following provisions shall apply notwithstanding any provisions to the contrary in the original lease: a. The landlord shall serve upon Me holder of the near leasehold mortgage and security agreement a written notice of any default by the mi tenant under he original lease, either (1) as provided in the lease for a notice of default to tenant, or (it) in any event, not lass than W days Prior any termination of the original mass for failure b pay Me base rent and not less than 60 days prior to any termination for failure to pedorm other obligations there under. No norm of termination shall be deemed to have been duly carried out unless and until such service is made. b. In case the new tenant shall be in default underthe original levee, the holder d the new leasehold mortgage and security agreement shall, within the period and otherwise as herein provided have the right to remecy such default, or cause the same to be remedied ant the landlord shell accept such performance by or at the instance d such holder as'd the some had been made by the new tenant. c. No event of default in respect of the performance dwork required to be performed or of acts to be done, or of conditions to be remedied under the Original mase or as provided in subsection (a) hereunder shall be grounds for lamination as against the holder ofthe new leasehold mortgage and security agreement if steps shall, in good faith, have been commenced whin the time permitted therefore to rectify the same and shall be prosecuted to completion With diligence and continuity. d. Anything conceded in the original lease to the contrary notwithstanding, upon the ocounence of an event of default other than an event Of default due to a default in Me payment of money, the landlord shall take no action to effects a termination of the original lease without first giving to the holder of Me new leasehold mortgage and security agreement written notice thereof as provided in subsection (a) and a reasonable time thereafter within which either (1) to obtain possession of the leased property (inctuding possession by a receiver), or (it) to institute, prosecute and Complete foreclosure proceedings or otherwise acquire the new tenant's interest under the original lease with diligence. Such holder upon obtaining possession or acquiring new tenant's interest under the original lease, shall be required promptly to cure all defaults then reasonably susceptible of being cured by such holder, Provided, however, that: (i) such border shall not be obligated to continue such possession or to continue such foreclosure proceedings after such defaults shall have been cured; (it) nothing herein comairhed shall preclude the landlord, subject to the provisions of this Article, from exercising any rights or remains under the original ease with respect to any other default by new tenant during the perderrcy, of such foreclosure proceedings; (iii) such holder shall agree with the landlord in wdtirg to comply during the period dsuch forbcemnce with such ofthe terms, conditions and covenants of Me original lease as are reasonably susceptible of being complied with by such holder. My default by the new tenant not reasonably susceptible of being cured! by such holder on account d insolvency or voluntary and involuntary insolvency or 08 125 reorganization proceedings, receivership, or an assignment for the benefit of creditors or the like shall be deemed to have been waived by the landbrd upon completion of such foreclosure proceedings or upon such squished of Me new tenant's interest in the ortglnel lease, except that any of such events of default which are reasonably susceptible of being cured after such completion aid acquisition shall then be cured with reasonable diligence. Such holder, or his designee, or other purchaser In foreclosure proceedings may became the legal owner and holder of the original lease through such foreclosure proceedings or by an Wright assignment of the original lease in lieu of foreclosure. e. In the event of the termination of the original lease prior to the expiration of the term, the landlord shall serve upon the holder of such new leasehold mortgage and security agreement a written notice that the original lease has been terminated together with a statement of any and all sums which would at that time be due under the original lease but for such termination, and of all other defaults, If any, under the original lease then known to the landlord. Such holder, or Its designee, shall thereupon have the option to obtain a new lease in accordance with and upon the following terms ant conditions: Such new lease shall be entered into M the reasonable cost of Me tenant there under, shall be eRective as of the date of termination of the original lease, and shall be foram remainder of the term of the original lease and at the rent and upon all the agreements, terms covenants and conditions thereof, indudirg any applicable rights of renewal. Such new lease shall require the tenant there under to perform any isdulAlled obligation of tenant under Me original lease which is reasonably susceptible of being performed by such tenant. The holder of such new lease, or designee, may assign es interest in such Lease and shall thereupon be released from all liability for the performance or observance of Me covenants and conditions in such lease contained on tenant's part to be performed and oboe wit from and after Me date of such assignment provided that Me assignee from such holder shall have assumed such Lease; E If by reason of its election not to exercise or take any extension period or for any other reason whatsoever, the tenant shall not become entNe ! to eMend the original lease for any extension term provided for in the original lease, the landlord shall serve upon the holder of such leasehold mortgage and secunty agreement written notice thereof and such holder shall have the option, upon wriften request served upon landlord within 60 days of receipt of the notice, to obtain from the landlord a new lease of Me demised premises for such extension term in accordance with and upon the same terns and conditions as provided in subsection (a) above. g. Any notice or other communication which is required under the original lease shall be in writing and shall be served by cerlifed mail, addressed as sat forth in the raw leasehold mortgage and security agreement or 08 125 this agreemant or such other address as snail be designated by such holder by notice in asking given by certified mail. K Anything herein contained to the contrary notwithstanding, fire provisions of this Article shall immure only to the benefit of the holders of Me new leasehold mortgage and security agreement. L No agreement between landlord and new tenant, nor any election by new tenant under Me terns of the original lease, modifying, canceling or surrendering the original lease, or Me new tenant's rights or landlords obligations there under, shall be effective without the prior written consent of the holder of the new leasehold mortgage and security agreement. ). No union of the Interests of landlord and Me new tenant herein shall result in a meger of the original lease in the fee interest. Dated:Mamh_ 2008 City of Bangor (landlord) by: printed name: its duly authorized officer STATE OF MAINE March _, 2008 Penobscot as Then personally appeared the above named in nether capacity as an officer of Me City of Bangor, and scknaMedged the execution of the foregoing instrument to be hialhe free ad and dead in said capacity, and the free act and dead of the City of Bangor. Notary PuNic 08 125 SCHDEULEA (The Leased Property) A certain lot or parcel of land situated in Bangor, Penobscot County, Maine more Particularly described as follows' Beginning at a point on the East side of the O lin Road at the southwest comer of a Parcel of land descdbed in a dead from DaM F. Bell and Dorothy A. Bell to Leroy W. Cole and Florence E. Cole dated January 6, 1955 and recorded in Penobscot County Registry of Deeds in Volume 1470, Page 223; thence South zero degrees thirty-six minutes fifty-orre seconds West (S 0' 38' 51" W) by and along the easterly line of said Odlin Road a distance of one hundred fifty-one and twenty-eight hundredths feet (151.28') to a point; thence South thirty-seven degrees three minutes My -nine seconds East (S 37' 3' 59" E) a distance of two hundred twentys ven and forty-four hundredths feet (22]44') to a point; thence North fifty-two degrees My -six minutes one second East (N 52' 56' 1" E) a distance of two hundred feet (200') to a point; thence North thinly -seven degrees three minutes fifty-nine seconds West (N 37 deg. 3 59"W) a distance of two hundred sixty-two and eight tenths feet (262.8') to a point in forty-four seconds West (N 88' 56' 44" W) by and along said Cole South line a distance of one hundred thirty-six and sixty-eight hundredths feet (1WSW) to the easterly line of said Win Road and the point of beginning. rw1417-7771728