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HomeMy WebLinkAbout2006-05-08 06-169 ORDERItem No. 06 169 Data MaV 8 2006 Item/Subject: ORDER, Authorizing the City Manager to Execute a Lease with Harmaney Realty Limited Partnership -- Summer Street Responsible Department Legal Harmaney Realty Limbed Partnership acquired a portion of the former Dana's Will lot on the corner of Summer and South Streets from Summer Street Capital vdth the intention of construdirg a private parking Int. Harmaney found, hmvever, that he lot was approximately 1,500 square feet less Nan the 10,000 square foot lot size required by the City's Land Development Code. The portion of Summer Street that abuts the lot will eventually be discontinued once the Main, Cedar and Summer Street realignments are done. At that time, Ne street right of way would revert to the abutters, divided at the centerline. Hanuaney Realty Limited Parmership wishes to lease a portion of Summer Street abutting its lot. The lease area would measure 20 feet by 79.59 feet to give Nem the required square footage to construct a parking lot on its land. Harmaney Realty Limited Partnership would have no other use of Summer Street Department Head Manager's Comments: --i uifsaett)eaw jgy&4u'_. ary Manager Associated Information: Lease Finance Director Introduced for NEW BUSINESS x Passage _ First Reading Page _L of 13 Referral 06 169 AsignOWCouncilor Paves May 8. 2006 CITY OF BANGOR (MLE.) ORDER, Authorizing the City Manager to Execute a Lease with Harmaney Realty Limited Partnership— Summer Street WHEREAS, Harmaney Realty Limited Partnership is the owner of a lot of land abutting Summer Street; and WHEREAS, Harmaney Realty Limited Partnership wishes to construct a private parking lot on mid lot of land; and WHEREAS, said lot of land does not meet the square footage requirements of the City's Land Deyelopment Code, said lot being approximately 1,500 square feet less than required; and WHEREAS, City plans call for the eventual discontinuance of the portion of Summer Street that abuts the maid lot of Harmaney Realty Limited Partnership; and WHEREAS, Harmaney Realty Limited Partnership wishes to lease a portion of Summer Street kir the sole purpose of acquuinng the required square footage for a parking lot and for no other purpose, NOW, Therefore, by the City Council of the City of Bangor, be it: ORDERED, THAT the City Manager is hereby authorized and directed, on behalf of the City of Bangor, 0 execute a Lease between the City of Bangor and Harmaney Realty Limited partnership, a copy of which is attached hereto. In (16_,60 06DHH ('PPR,p,J Authoilsin¢ the City Maaayei Co ffiecute a Lease vtth Harneoay Realty Lied ad Partner ahlo - Stammer Street Assigned to Caoneiioe /�Wq INDENTURE OF LEASE THIS INDENTURE OF LEASE, exeeu[edthisltday of M n q .2006, by and between: �'i CITY OF BANGOR, a municipal corporation duly organized and existing under and by virtue ofthe laws of the State of Maine, and having its principal offices a[ 73 Hadow Street, Burger, Maine thereirafter sometimes referred to as "Lassa") AND HARMANEY REALTY LIMITED PARTNERSHIP having aplace of business on Main Street, Position, Comity of Penobscot, Stare of Maine (hereinafter sometimes referred to as "Lessee) WITNESSETH: WHEREAS, the City of Bangor is the owner of a certain parcel or lot of land; and WHEREAS, Lessee is the owner of an abutting parcel or lot of land; and WHEREAS, Lasses wishes to obtain a development permit for its parcel of land for a permitted use under the Land Development Code of the City of Bangor; and WHEREAS, Lessee needs m acquire an interest in the land owned by the City of Bangor in order to meet the lot size requirements of the Land Development Code of the City of Bangor; and WHEREAS, Lessee wishes to lease said parcel or lot of land for the purpose of meeting Paid lot size requirements. NOW, THEREFORE, the parties do mutually agree n follows: ARTICLE I - PREMISES The Lessor, for and in consideration of the marcs 0 be paid and the obligations to be performed by Lessee as hereinafter provided, does hereby demise and lease unto Lessee, and the Lessee does hereby take and lease, upon and subject to the terms and conditions hereinafter expressed, a parcel of land as more particularly described in Exhibit A attached hereto. ARTICLE II - TERM' TO HAVE AND TO HOLD the demised premises onto the Lessee for a term of five (5) years commencing May 1, 2006 and termination April 30, 2011 with options to renew for five year periods so long as Lessee needs the demised premises to comply with the requirements of the Land Development Code of the City of Bangor. ARTICLE IB - CONTUTATION OF RENT Lessee covenants to pay b the Lessor as rental for the premises leased hereunder One Dollar ($1.00). ARTICLE IV -USE, OCCUPANCY AND ALTERATIONS TO PREMISES A. Lessee shell have the right to use the premises herein described in areasonably bosiness-hke narrow, solely for the purposes of meeting the lot sin requirements of the Land Development Code of the City of Bangor and fa no other purposes whatsoever without the prior written consent of the Lessor. Lessee shall have no other rights in and to the demised premises. B. No buildings, summers or improvements shall be re ersa med on the demise] premises. C. Lessee shall not have my right to inthrere with traffic or pedestrian use of the demised prannues. D. Lessor retains all rights to maintain any mines in the demised premises and inslau and maintain or allow to be installed and maintained my utilities in the demised premises and Lessee shall not interfere with the same. E. Lessen retains all rights to regulate any and all activity, including, but not limited to, velvcmar and pedestrian in the demised premises. ARTICLE V-IiAZARDOUS WASTE Lessee hereby covenants and agrees that it shall not, daring the term of this lease, including my extension or renewal hereof, permanently place, cause to be placed, deposit or discharge any hazardous wane upon the demised premises, and further expressly agrees that it shall indemnify Lessor from my and A costs, expense or liability, of whatever hind or name, incurred by the Lessor in detecting, evaluating, removing, treating, disposing of or otherwise responding to my hazardous waste placed or deposited by Lessee in violation of this Article. Lessee hereby revenants and agrees the it shall neL during the term of this lease, including my extension or renewal hereof, violate my local, State or Federal regulation, ordinance ee or statute pertaining to hazardous waste or hazardous material and Rather expressly agrees that it shall indemnify Lessor from any and all cons, expense or liability, of whatever load or nature, incurred by the Lessor for my each violation by Lessee. Such cans shall be deemed b include, without braita6om, Lessors costs of defending my suit filed by my person, entity, agency, or governmental authority; paying my Eves imposed m connection with such suit; paying my judgments or otherwise selling my damage claims; complying with my order by a court of competent jurisdiction directing the Lessor to take remedial action with respect to them wane; and of all associated attorney's fees and costs. O6-169 For the purposes of this Article, the term "hazardous waste" shall be deemed to include every subsrmme now or hereafter designated as a bumptious waste under any provision of Shop or Federal law. Lessee's obligations under this Article shall be deemed to survive the expiration or termination of Us Lease, but shall be limited to acts or occurrences by Lessee, it agents, employees and assigns, during the tens, or any extension or renewal thereof, of this lease. ARTICLE VI- LIABILITY AND PROPERTY DAMAGE INSCRANCB The Lessee, during the entre term of this Agreement, or any extension thereof, sbAl maximus, at its sole expense, insurance of the following types with companies authorized to do business in the State of Maine for tine protection of the City of Burger, who shell he named as an additional insured against all claims, losses, costs or 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 the Lessee, its direcwrs, officers, employees and agents and arising from Lessee's use of the premises or any part or portion thereof. Comprehensive Public Liability Bodily Injury, $400,000.00 each occurtence Comprehensive property Damage $400.000.00 each occurrence Worker's Compensation Insurance Lessor shall not bs required to provide insurance coverage and shall have no responsibility for any property owned by the Lessee or third parties which may be located on the leased premises. Lessee shall cense to he furnished to the Lessor evidence in the form of certificates of insurance of the existence and continuance In force of the insurance required hereunder. Lessor shall be notified of any changes or discontinuance of coverage. The minimum nsurance coverage required under this Article shall be drooped to be automatically adjuned wbemwn the Maine State Legislature shall increase the Lessor's maximum liability for personal injury or Property damage claims brought under the Maine Tort Claims Act In the event of such an increase, the minimum insurance coverage required shall be no less than the Lessor's maximum liability for such claim under the Maine Tort Claims Act. ARTICLE VII -INDEMNITY A General Indemnification- Lessee shall defend and hold Lessor, and its inhabitants, officers, employees and agents completely homeless 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 b any property, including all reasonable costs for investigation and defense thereof (including but not limited to attorneys' fees, court costs, and expert witness foes), any nature whatsoever arising out of or incident to this agreement and/or the use, occupancy, conduct, or management of the leased premises or the acts or omissions of Lessee's officers, agents, employees, contractors, subcom actraw licensees, or invitees, unless such injury, death, or damage is caused by the negligence of the Lessor. The Lessee shall give to Lessor reasonable notice of my such claims or actions. The Lessee shall also use counsel reasonably acceptable to Lessor in carrying out its obligations under this Article. B. Lessee's Waiver of Workers' Compensation Immunity - The Lessee hereby expressly agrees that it will defend, indemnify and hold the City of Barges, its vibabilants, officers, employees and agents completely harmless from my and all claims made or asserted by the Lessor's agents, servants or emplovees arlsum out ofthe Lessee's activities under this Lease. For this purpose and all costs incurred by the City of Bangor to answer, investigate, defend and settle all such claims, including but not Handled to the City of Burgers cosh for mfomeys fees, expert and other witness fees, the cost of investigators, and payment in fall of any and aRjudgments rendered yr favor of Lessee's agents, servants or employees against the City of Bangor in regard to claims made or asserted by such agents, servants, or employees. ARTICLE VEI - RULES, REGULATIONS AND LAWS A. The Lessee hereby agrees to obey and To cause all personnel employed by the Lessee To obey, all municipal ordinances, and all Stale and Federal rales, regulations, or laws permivivg N the Lessee's use and occupancy of the demised promises. B. Lessor retains the continuing right in the leased premises to maintain the existing City of Bmgur right of way and sidewalk including, but not limited to, the right for public use, covstrucf repair, improve and otherwise maintain the sidewalk and right of way, Together with the right of ingress to, egress from, and passage over Lessee's property Nr the above purposes. ARTICLE IX -TAXES Unless otherwise exempt, Ne Lessee sauces to pay, when due, my and at notes and/or assessments, fees or charges of my kind whatsoever, astray be imposed during the term hereof or any extension of the term of this lease, by my governmental authority upon the demised premises, including Lessee's leasehold interest therein, any structures, or improvemems thereon, or any personal property located therein. If the Lessee does obtain exempt status under 36 MRSA Section 652 or my similar successor thereto, it is expressly agreed that such taxes and assessments shall exclude all amorph levied as real estate and/or personal property taxes upon the demised premises by the Lessor acting in it governmental capacity. ARTICLE X - NONDISCRIMINATION Lessee fm itself, its personal represemtadves, successors in interest and assigns, and as part of the crensiderations hereof, does hereby covenant add agree as a covenant running with the land that (1) no person or group of penes shall be excluded on the grounds of race, color, or national origin fiomparticipation im denied the benefits of, or be otherwise subjected to discrimination in the use or occupancy of said devised premises; (2) in the construction of all improvements, buildings, structures, on, over or under such land and the furnishing of services thereat no perwn or group of persons shall be excluded on the grounds of race, calm, or national origin from participation in, denied the benefits of, or be otherwise subjected he unlawful discrimination; and (3) Lessee shall use the premises in compliance with all other requirements as may be imposed by or pursumt to Tille 49, Cade of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Por[ 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation Effectuation of Tide VI of the Civil Rights Act of 1964, and as said regulations may be amended. In the evert of breech of any of the above nondiscrimination avenues, the Lesmr shall have the right, after failure of Lessee to rectify such breech within thrty (30) days after receipt of notice Gam Lessor, to temdnate this Agreement Provided,however, that Lessor shall not have theright to initiate termination of the Lease under [his Article with respect to any complaint of discrimination which is pending final resolution or adjudication before any agency or court of the State ofhfame or the United States. ARTICLE XI - COVENANTS OF QUIET ENSO %fEN'L The Lessee, subject ro the terms and provisions of this lease on payment of the rent, and observing keeping and performing at the terms and provisions of the lease on its part on be observed, kept and performed, shall lawfully, peaceably end quietly have, hold, occupy and enjoy the demised premises during the tam hereof without h ndrmce or rejection by the Lessor or my other persons. ARTICLE X11 - LIENS The Lessor and the Lessee agree that each will promptly discharge (either by payment or by filing of the necessary bond or otherwise)my mechmics',m erialmen's or otba liens against the demised premises, my buildings, structures or improvements thamt which liens may arise out of my payment due for labor, services, materials, supplies or equipment which may have been famished to or for the Lessor or the Lessee, respectively. ARTICLE XIII -SURRENDER OF POSSESSION Lessee shall, upon the termination of Us Lease, surrender the quiet and peareable possession of the damsed promises. ARTICLE XIV -TERMINATION It is covermal and agreed that (I) Ifthe Lessee shall neglect or fall to pay the rent or other charges payable hereunder and such default shall continue for a period of thirty (30) days after women notice thereof by Lessor; or (2) If Lessee shall neglect or fall to perform or observe my of the other covenants, terms, provisions, or conditions on its par[ In be performed, or observed, and such neglect or failure shall commue for aperiod of ninety (90) days after written notice thereof by Lessor, or if such covenants, turns, provisions or conditions cannot be performed or observed within said ninety (90) day period, if Lessee fails to diligently prosecute the rutting of such neglect or failure; or (3) If the estate hereby created shau be taken on execution or by other process of law; or (4)Ifthe Lessee shall be declared bankrupt or insolvent according to law; or (5) If my assignment shall be made of the property of the Lessee for the benefit of creditors; or (6) If a receiver, guardian conservator, or trustee in bmkmptcy or other similar officer shall be appointed to take charge of all or my substantial pan of the Lessee's property by a Court of compound jurisdiction; or (7) If a petition shall be filed for a reorganization of the Lessee miler provisions of the Bankruptcy Act now or hereafter maned; or (8) If the Lessee shall file a petition for men reorganization or for arrangements order my proviso an of the Bankruptcy Act now or herwhou mood. (9) If Lessee breaches the Agreement existing between the parties and fails to core said breach within my applicable cure or grace period. (10) If Lessee no longer deeds the demised premises for the purpose of meeting requirements of the Land Development Code of the City of Bangor. The, m my of the said cases (notwithstmdwg any license of my former breach ofcovnant or waiver of the benefit hereof or consent in a former marnee), the Lessee may be considered in default hereunder, and the Lessor lawfully may, immediately or at any time thereafter, and without demand or notice, enter into and upon the said premises or my part thereof, in the name of the whole and repossess the same as of the Lessor's fonder estate, and expel the Lessee and those claiming through or under it and remove its or their effects (forcibly if necessary) without being deemed guilty to any manner of trespass, and without prejudice to any remedies which might otherwise be used for azrems of rent or preceding breach ofcoveumn. Upon such entry, this Lease shall terourade, and the Lessee well be liable to pay as rent, amouvts reserved as would have become due under this Lease if this Lease had not been tem matad or if the Lessor W not entered or reentered as aforesaid. Notwithstanding the foregoing, Lessee's liability shall not exceed the difference, if my, between the rental which would have been due had there been no such termination, and the amount being received by Lessor as rent from my new tenant or occupant of said premises. In order to mitigate Lessee's damage I meander, Lessor agrees to make every removable effort to seems subsequent rerrants, at a reaml equal to the then prevailing local two for the demised premises. 06-169 ARTICLE XV - ATTORNEY'S FEES The Lessee shall pay to the Lessor a reasonable attorney fee in the event the Lessor employs an amminty to collect any rents due hereunder and senores ajudgment in eamection with collection of said rent, or legal process is levied upon the interest of the Lessee in this Lease or in said premises, or in the event Lessee violates any of the toms, conditions or covenants on the part of the Lessee herein contained, provided that Lessee falls W promptly correct the violation of my tom, condition or revenuer after receipt of notice Nat it is in violation thereof. In the event Lessor employs its City Solicitor or an assistant solicitor to collect rents or otherwise protect Lessor's interests under this Lease, reasonable attorneys fees under this Article thrall mean the reasonable cast of services provided by Lessors Solicitor or assistant solicitor. ARTICLE XVI -ASSIGNMENT, SALE AND SUBLETTING The Lessee shall her at my time assign, sell, convey or transfer this Lease or any interest therein, or sublease or sublet or rent the premises, or any part thereof, without the prior written consent of the Lessor which consent stall not be unreasombly withheld, delayed, or conditioned. In the event of an approved sublease all provisions shall extend W, bind and inure W the benefit of not only the Lessor and Lessee but also their summers and assil us. Lessee slall have the right W assign this Lease to my corporation with which its may have become merged, consolidated or otherwise associated, or any corporation or holding company having the controlling interest in the Lessee, or W my corporation which may be a subsidiary of the Lessee. In no event, however, shall the Lessee named herein be relieved from any obligation m Rn this Lease by virtue of my assignment or subletting. ARTICLE XVII - FINANCING AFFECTING DEMISED PREMISES Lessor is cognisant of me need of Lessee to £mance the construction of buildings, structures and improvements on the demised premises, and to subsequently borrow upon the value of the demised premises, and therefore specifically agrees to rental the Lessee W mortgage, conditionally assign or transfer its leasehold interest in the demised premises for the purpose of obtaining construction and permanent loan framing forme mid buildings, structures, and improvements, and for the purpose of otherwise securing borrowed fads, provided: (1) the term of such mortgage, conditio nd assignment or border shall not exceed the must turn or more as extended hereof; (2) Lessee shall give notice of the emstenm of such mortgage, conditional assignment ox transfer, together with the name and address of the mortgagee, emigres or transferee and a copy of the mortgage, assignment or transfer document; (3) that in the event of foreclosure, and in me event that the ovmer of the Lessee's interest pursuant to such foreclosure, said mortgagee, conditional assignee or transferee shall have the Hall, 73 Harlow Street, Bangor, Maine, 04401 and notices to Lessee, are to be seat by registered or certified mail, return receipt requested, postage prepaid, to Harmaney Realty Limited Partnership, c/o Webber Oil Company, 700 Main Sveet. Bangor, Maine 04401, or to such other respective addressed as the parties may denigrate to each other in writing from time to time. ARTICLE XXI - INVALIDITY OF PARTICULAR PROVISIONS If any term or provisions of this Lease or the application thereof to my person or circumstances is hereafter determined to be to my extent, invalid or unenforceable, the remainder of this Lease or the application of such mans and provisions to persons or circumstances other then those to which it is held invalid or unenforceable shall not be affected hereby and such term and provision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. ARTICLE )DIR-CONSTRUCTION The headings appearing in Ne Lease are intended for convenience and reference only, and not to be wondered in construing this Lease. ARTICLE =11 -NO PARTNERSHIP OR JOINT VENTURE CREATED Nothing contained herein shall be darned or construed as creating the relationship of principal and agent or of partnership an ofjoint ventre between the parties hereto, it being understood and agreed that neither the method of corporation of rent nor my other provision -contained herein or my acts of the parties hereto shall be deemed to create my relationship between the panties other thea the relationship of landlord and tenant. ARTICLE XXIV - GOVERNING LAW This Lease shall be governed exclusively by the provisions hereof and by the laws of the State of Maine as the stave may fian time to time enist ARTICLE XXV- MEMORANDUM OF LEASE Upon execution of this Lease, the parties may, upon request of either, prepare and execute a Memorandum of Lease in a form suitable for retarding at the Penobscot Maine Registry of Deeds, as evidence of Lessee's interest in the premises demised herein. ARTICLE XXVI - AMENDMENT TO LEASE This lease contains all the terms and conditions between the parties hereto and no alteration, amendment or addition hereto shall be valid unless in writing and signed by both parties hereto. IN WITNESS WHEREOF, thtpar ies hecto have set tbeir bands and seals the day and year written above. CITY OF BANGOR RARMANEY REALTY LMTED PARTNERSHIP By: DEXTER REALTY COI/vI�PANY, /Gannnrel Partner By: Michael T. Shea, President samonos�vusn O6 -t69 �Ar�F09p CITY OF BANGOR saR 4�'