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HomeMy WebLinkAbout2008-08-11 08-274 ORDERDate: August 11 1008 Item No, 08 274 Item/Subject: ORDER, Authorizing lease Agreement with Bangor Folk Festival d/b/a American Folk Festival — Bangor Waterfront Responsible Department: legal In previous years, there has been no written lease agreement between the city and the Folk Festival for the use of the waterfront area. Partly for Insurance purposes, the Folk Festival and the city would like to formalize this arrangemem. The lease agreement proposed would cover the period of the Folk Festival itself as well as time to set up and take down, would allow public use of all public spaces, and would include Insurance and indemnification provisions. Staff recommends approval. ant Head Manager's Comments: ) iYfhe ,�arrf�rram/ f ,� �fr: 5( Dtymanager Associatem! Information: iT. �� /k� / Budget Approval France Director IntmQuced for L Passage _ First Reading Paha _ of _ Referral August 1L 2008 Assigned to Councilor e.z.nz 08 274 CITY OF BANGOR (TIRE.) ORDER, Authorizing Lease Agreement with Bangor Folk Festival d/b/a American Folk Festival - Bangor Waterfront WHEREAS, the American Folk Festival will take place on the Bangor Waterfront on August 22, 23 and 24, 2008 celebrating the seventh year of an annual folk festival in Bangor; and WHEREAS, the American Folk Festival is held by the Bangor Folk Festival, a Maine nonprofit corporation having its offices in Bangor; and WHEREAS, there is a need for an agreement between the City and Bangor Folk Festival providing for its use of the Bangor Waterfront area for the American Folk Festival event which covers the period of the Folk Festival as well as time to set up and take down; and WHEREAS, the Lease Agreement would allow public use of all public spaces, and would include insurance and indemnification provisions: BE IT ORDERED BY THE CITY COUNCIL OF THE CITY OF BANGOR THAT the City Manager is hereby authorized to execute a Lease Agreement between the City of Bangor and the Bangor Folk Festival, providing for its use of the Bangor Waterfront for the 4v' annual American Folk Festival to be held on August 22, 23 & 24, 2008, with terms and conditions substantially as attached hereto, and in a final form approved by the City Solicitor. I9 CITY COOPCIL puttees 11, 2008 8otiw Made and Seconded Y foe assage W-274 Pettiest __ CITY ulB (TrrLFJ Authotlilag Lease Agra t with easgor Polk Festival d/b/a aricaa Folk Festival - meager Materfrout Awiwm to coencmr This LEASE AGREEMENT is executed this _ day of 2008, by and between: and D8 274 CITY OF BANGOR, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Maine, located in Bangor, County of Penobscot, State of Maine, and having its principal offices at 73 Harlow Street, Bangor, Maine (hereinafter referred to as "City"); BANGOR FOLK FESTIVAL, d/b/a American Folk Festival, a Maine nonprofit corporation having its principal offices at 40 Harlow Street, Bangor, Maine thereinafter referred to as "Lessee'). WITNESSETH WHEREAS, the City of Bangor is the owner of certain portions of the waterfront area of Bangor; and WHEREAS, Lessee would like to hold its annual Folk Festival in the waterfront area of Bangor from August 22 to August 24, 2008; and WHEREAS, the City desires to allow Lessee to utilize the waterfront area so that this traditional Bangor event may go forward; NOW, THEREFORE, the parties do mutually agree as follows: ARTICLE I - PREMISES The City, for and in consideration of the rents to be paid and the obligations to be performed by the Lessee as hereinafter provided, does hereby demise and lease unto the Lessee, subject to the conditions hereinafter expressed, the following described property in its present condition, viz: Certain portions of the Bangor waterfront area, approximately as identified on a map of said,area attached hereto as Exhibit'N'. uH 274 ARTICLE It - TERM TO HAVE AND TO HOLD the demised premises unto the Lessee from August 16 through August 28, 2008. ARTICLE III - RENTAL The rental to be paid by the Lessee to the City during the initial term of this Agreement shall be $1.00. ARTICLE IV - U3E AND OCCUPANCY OF PREMISES A. The Lessee shall use and occupy the premises herein demised for the purposes of setting up, holding, and taking down the American Folk Festival for its tenants, employees, invitees and customers of its tenants, and for no other purposes whatsoever without the expressed written prior consent of the City. B. The Lessee shall not use or occupy said premises in any manner as to knowingly violate any law or regulation of any duly constituted governments) authority. C. Any streets, parking lots, sidewalks, and public open spaces within the promises may be used by the public. D. The Lessee will provide, at its own expense, adequate toilet facilities. E. The Lessee shall be responsible for the clean-up of the premises, including, but not limited to, removal of all refuse. - F. The rights granted hereunder shall be under the direct supervision and control of James D. Ring, City Engineer for the City of Bangor. However, the City expressly assumes no responsibility for the staging and presentation of the Lessee's event, and assumes no liability whatsoever for the claims or demands of any person arising out of the Lessee's activities. ARTICLE V - RESERVATION OF CERTAIN RIGHTS .2. A 274 The City reserves the right to continue to use the demised area without charge for official City business. ARTICLE VI - INDEMNIFICATION During the term of this Lease and during any extensions or renewals hereof, including any holdover tenancy following regular expiration or early termination hereof, Leasee shall defend, indemnity, save and hold Lessor, and its inhabitants, officers, employees and agents completely harmless from and against any and all liabilities, losses, suits, claims, costs, expenses, judgments, fines or demands arising by reason of injury to or death of, or asserted by, any person or persons, including Lessee's agents, clients, invitees or employees, 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 face(, of any nature whatsoever arising out of or incident to this Lease and/or the use, occupancy, conduct, or management of the demised premises or the acts or omissions of Lessee's officers, clients, agents, employees, contractors, subcontractors, licensees, or invitees, unless such injury, death, or damage is caused by the negligent acts or omissions of the Lessor, its agents, employees, clients or invitees. The Lessee shall give to Lessor reasonable notice of any such claim or actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations under this Article. Waiver of Workers' Compensation Immunity: Lessee 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 Lessee's agents, servants or employees arising out of Lessee's activities under this agreement. For this purpose, Lessee hereby expressly waives any and all immunity it may have under the Maine Worker's Compensation Act in regard to such claims made or asserted by the Lessee's agents, servants or employees. The indemnScation provided under this section shall extend to and include any and all costs incurred by the City to answer, 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 costs of investigators, and payment in full of any and all judgments rendered in favor of the Lessee's agents, servants or employees against the City in regard to claims made or asserted by such agents, servants, or employees ARTICLE VII - INSURANCE 08 274 Lessee during the entire term of this agreement shall maintain, at its sole expense, liability, property damage and workers compensation insurance of the following types with companies authorized to do business in the Stale of Maine, and for the protection of the City, which shall be named as additional insured against all claims, losses, costs of expenses arising out of injuries to persons whether or not employed by Lessee or damage to property whether resulting from acts, omissions, negligence or otherwise of Lessee, its employees and agents arising from Lessee's use of the facilities any part or portion thereof. The amount of insurance shall be no less that the minimum liability amount provided by the Maine Tort Claims Act. Lessee shall cause to be furnished to the City evidence in the form of certificates of insurance of the existence and continuance in force of the insurance required hereunder. AR CLE VIII - HAZARDOUS MATERIALS Lessee hereby covenants and agrees that it shall not, during the term of this Lease, including any extension or renewal hereof, permanently place, cause to be placed, deposit or discharge any hazardous waste upon the demised premises and further expressly agrees that it shall indemnify Lessor from any and all costs, expense or liability, of whatever kind or nature, incurred by the Lessor in detecting, evaluating, removing, treating, disposing of or otherwise responding to any hazardous waste placed or deposited in violation of this Article. Lessee hereby covenants and agrees that it shall not, during the term of this Lease, including any extension or renewal hereof, 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 Lessor .from any and all costs, expense or liability, of whatever kind or nature, incurred by the Lessor for any such violation. Such costs shall be deemed to include, without limitation, Lessor's costs of defending any suit filed by any person, amity, agency, or governmental authority; paying any fines imposed in 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. 68 274 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. ARTICLE a - NON-DISCRIMINATION The Lessee, in the use and occupancy of the leased promises, shall not unlawfully discriminate or permit unlawful discrimination against any person or group of persons in any manner. ARTICLE X - TERMINATION It is covenanted and agreed that either party may terminate this lease for no cause by giving one (1) week's written notice to the other party. ARTICLE XI - IMPROVEMENTS Lessee shall not make any permanent improvements to the leased areas. Temporary improvements necessary for holding the Folk Festival are permitted subject to approval by the Bangor Business and Economic Development Officer. ARTICLE XII - NOTICES Notices to the City provided for in this Agreement shall be sufficient if sent by registered or certified mail, postage prepaid to: - Edward A. Barrett, City Manager City of Bangor 73 Harlow Street Bangor, Maine 04401 and notices to the Lessee shall be sufficient if sent by registered or certified mail, postage prepaid to: Brad Ryder, Chair Festival Board of Directors 40 Barlow Street -5- G8 274 Bangor, Maine 04401 or to such other respective persons at addresses as the parties may designate to each other in writing from time to time. ARTICLE XIII - SUCCESSION AND ASSIGNABILITY A. All provisions of this Agreement shall extend to, bind and maws to the benefit of not only the City and the Lessee, but also their successors and assigns. B. The Lessee shall not encumber, mortgage, assign, sublet or otherwise transfer his interest or any part thereof under this Agreement without the prior expressed written consent of the City. ARTICLE XIV - WAIVER Failure on the part of either party to complain of any action or non -action on the part of the other, no matter how long the same may continue, shall never be deemed to be a waiver by either part of any of the other's rights hereunder. It is covenanted and agreed that no waiver at any time of any of the provisions hereof by either party shall be construed as a waiver of any of the other provisions hereunder, and that a waiver at any time of any of the provisions hereof shall not be construed at any subsequent time as a waiver of the same provisions. The approval by either party W or of any action by the other requiring consent or approval shall not be deemed to waive urmeeeasary the required consent or approval of any subsequent or similar action by either perry. ARTICLE XV - INVALIDITY OF PARTICULAR PROVISIONS If any term or provision of this Agreement or the application thereof to any person or circumstances to any extent be declared invalid or unenforceable by any court of competent jurisdiction, the remainder of this Agreement, or the application of such terms and conditions to persons or circumstances other than those which have been held invalid or unenforceable, shall not be affected thereby, and each term or condition of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. 12 V 8 274 ARTICLE XVI - CONSTRUCTION The headings appearing in this Agreement are intended for convenience and reference only, and are not to be construed by the parties hereto or by any third parties in construing this Agreement. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of principle and agent or of partnership or ofjoint venture between the parties hereto, it being understood and agreed that all provisions contained herein are intended to create the relationship between the parties of landlord and recent. ARTICLE XVII - GOVERNING LAW This lease Agreement shall be governed exclusively by the provisions hereof and by the law of the State of Maine, as the same may from time to time exist. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first written above. CITY OF BANGOR Witness By: Edward A. Barrett Its: City Manager B GOR FOLK FESTIVAL Witness By: Maria Baeza Its: Chair -7-